"Because the liberals/socialists want to be the "big brother" of society... they don't believe in people taking responsibility for themselves. In fact, they probably believe people are too stupid to take responsibility for themselves.
There was a story here in NJ where a drunk fell over himself at a bar and sued the bar. Of course, the bar had insurance, and despite the fact it was the drunk's own fault, the bar was "guilty of serving alcohol to a guy who was already drunk." (or so the prosecution claimed). The case was settled out of court by the bar's insurance company, but it just goes to show that people just don't think other people are responsible enough for themselves.
FYI, there is no "prosecution" in a civil case. There are only plaintiffs and defendants.
Your claim seems to be that only the drunk should take responsibility for his actions. Isn't the bar responsible for its action in serving the drunk? Or does the bar get a free pass because it is a servant of the market and can therefore do no wrong?
I am always skeptical of anecdotes about some horrible thing that happened in some lawsuit. All too often the reality of the situation and the decision is different. For instance, the McDonald's coffee case. This is still routinely pointed out as an example of an out-of-control civil justice system. But the people who claim this never seem to point out that the woman who was burned tried to settle solely for her medical expenses (a few thousand), that McDonald's had already had hundreds of such claims and chose to ignore them, that McDonald's was shown to deliberately serve their coffee at a much higher temperature than either home coffee machines or other fast food chains (because it takes longer to drink hot coffee so there are fewer refills and you can use cheaper coffee and still get a decent aroma if you make it very hot). Moreover, the award was later reduced.
"This problem would also be solved if we had a better public transportation system in the U.S. If people relied more on public transportation than their own automobile to get around, we wouldn't have so many of these problems.
Since you are down on "liberal/socialists", who is going to pay for the mass transit systems you want? Clearly the market will not provide.
"Civil Disobedience is done in the name of change, and therefore *requires* accountability. Doing this like an anonymous coward, distributing it and not letting yourself be known is lame, and will be seen rightly as an act of cowardice. Granted, the cowardice is justified as a certain russian programmer can tell you.
If the author is out there in slashland email me, and I will publish the app for you publically and with my name. I will accept all responsibility for writing the program and distributing.
I think yours is a reasonable but incomplete view of "civil disobedience." If emulating the campaigns (or at least the non-violent parts) of King and Gandhi and Biko is what someone wishes to do, then they do need to be willing to face the consequences.
OTOH, a single person cannot succeed. All of the civil rights campaigns that succeeded did so because of their numbers. The campaign takes a long time and needs to pile small victory upon small victory.
If you do it by yourself, you stick up like a nail and get hammered down. So instead of one person publishing it, try to get hundreds. Perhaps the EFF or EPIC or some such group can help lay the strategy for a test case. It may be that reader software is not the appropriate vehicle to bring a DMCA challenge. These sorts of changes don't just happen, they are made. The landmark Brown v. Board of Education was the ultimate school desegregation case but dozens of earlier cases were brought at the lower levels to lay the groundwork that made the Supreme Court decision inevitable.
Finally, anonymous action is not the same thing as cowardice. It isn't traditional civil disobedience, but it isn't cowardice either. Similarly, rushing in may be foolish rather than brave. Pick the fights you have a chance to win and then prepare as thoroughly as you can. You need to be able to risk failure, but you don't have to seek it out.
"However, he was calling me names and making fun of me, a person he doesnt know, for no other reason than he didnt like what I had to say. Then he called me sophomoric. I am saying that it was lame of him/her to do so. Do you disgree?"
I don't think I called you any names though I certainly made fun of you. I didn't do it because I don't like what you say but because I think what you say is whacked and that you make your arguments in a disingenuous manner. (I accept that this may be a distinction without a difference.) I never called you sophomoric (unless I did the last time). I don't think you are immature, I think you are blinded by your ideology.
"I was considering not responding to you, primarily due to the ad hoc attacks you insist on making to me."
"Ad hoc" means "for this" in Latin and is most often used in conjunction with committees. "Ad hominem" means "to the person" and is presumably what you meant to say. I don't think I engae in any ad hominem attacks until the very end (though I get close to the edge a few times before that). But in general, you're right. Frankly, the things you write are often so extreme and wrong-headed that I have a visceral reaction to them.
"First, the "trade secret" agreements MS made with hardware OEM's is legal, even if they are a monopoly. For more information this, please see the SCOTUS decision on "INTERNATIONAL BUSINESS MACHINES CORP. v. UNITED STATES, 298 U.S. 131 (1936)". It clearly defines the ability of monopolists to protect the exclusivity of distribution, even if it defeats some or all competitive efforts."
Have you ever actually read this decision? It stands for almost the exact opposite proposition. In that case, IBM leased card reading machines. The lease contracts contained a provision that required the lessee to only use IBM-supplied punch cards. The U.S. government sued. The trial court found, ta da!, a violation of the same section of the Clayton Act as the one I mentioned before. IBM contended it had patents that, collectively, gave it a monopoly to manufacture, vend and use the cards. In its review, the Supreme Court thought the patent claim was weak but didn't rule against IBM on those grounds. Instead, the court said:
"We rest it rather on the language of 3 of the Clayton Act which expressly makes tying clauses unlawful, whether the machine leased is "patented or unpatented." The section does not purport to curtail the patent monopoly of the lessor or to restrict its protection by suit for infringement. But it does in terms deny to the lessor of a patented, as well as of an unpatented machine, the benefit of any condition or agreement that the lessee shall not use the supplies of a competitor. The only purpose or effect of the tying clause, so far as it could be effectively applied to patented articles, is either to prevent the use, by a lessee, of the product of a competitor of the lessor, where the lessor's patent, prima facie, embraces that product, and thus avoid judicial review of the patent, or else to compel its examination in every suit brought to set aside the tying clause, although the suit could usually result in no binding adjudication as to the validity of the patent, since infringement would not be in issue. The phrase "whether patented or unpatented" would seem well chosen to foreclose the possibility of either alternative."
The Court concluded:
The Clayton Act names no exception to its prohibition of monopolistic tying clauses. Even if we are free to make an exception to its unambiguous command, we can perceive no tenable basis for an exception in favor of a condition whose substantial benefit to the lessor is the elimination of business competition and the creation of monopoly, rather than the protection of its good will, and where it does not appear that the latter can not be achieved by methods which do not tend to monopoly and are not otherwise unlawful.
This case has not been reversed. Your analysis of it is simply wrong. I think you were trying an argumentum ab auctoritate, or argument from authority, and counting on people to not actually know.
"Ask yourself, is there more competition is desktop OS' today than ten years ago? How is that so if MS is a monopoly? Its not."
A better question would be: "Is there more or less competition in the desktop OS market today than there would have been if Microsoft had not used its dominant market position (~90%) to force OEMs to not sell dual-boot machines?" It has been repeatedly shown in court that a company can lose market share or prices can come down and still be violating the antitrust laws. If they are using monopoly power to slow the losses, that's illegal.
"Third, why didnt hardware vendors challenge MS? Serveral reasons. First, people dont have any reason to not use Windows. Second, application vendors are cool to the idea of new platforms. Third, it is a risky proposition, where MS is a solid established equation. If they struck on their own they might make more, or they might lose big time. Sticking with MS was a measure of their faith in MS to deliver. Fourth, they are hardware vendors, and as Apple can clearly attest to, doing the "whole" package of hardware and software isn't easy by a long shot. Fifth, consumers by and large either (a) love MS software (not incredibly uncommon) or (b) dont hate it enough to ever switch."
I think your position here boils down to the idea that people are generally sufficiently satisfied to not switch. And you may well be right. But that is irrelevant to this discussion. Be's concern is that people never even got the chance to decide. Assume, arguendo, that Be could and would have provided the OS to major OEMs at no cost as a way of getting market share. (You know, like Internet Explorer.) Further assume that they could satisfy whatever inegration and support concerns the OEMs had. In that world, where is the risk to the OEMs? The customer gets a choice on their first time boot:
Do you want a Microsoft Windows Only machine or do you want Microsoft Windows and BeOS machine (takes an additional 70 megabytes)?
The customer picks and that's that. Some people say yes, some say no. But they had the choice! Hooray! Maybe no one would choose it. Maybe no one would develop for it. But the OEMs didn't have to "strike out on their own." They could have offered both if Microsoft hadn't forced them to enter into an agreement that precluded them from doing so. Also, I don't understand the "whole package" thing. Do you mean that they wouldn't want to roll their own Linux disto? Maybe so. But I imagine they could reach a satisfactory agreement with Red Hat for instance. What I don't understand is why you appear to support actions that prevent the free market from working.
"Just because most people don't dislike MS doesn't make them a monopoly."
True. It's the ~90% share of the desktop OS market that makes them a monopoly. And it's using the power of that monopoly to force others to do things they wouldn't otherwise that is illegal.
"That will conclude my remarks here right now. If you respond, try not to personally be rude or demeaning - it only hurts your position, which is actually rather strong.
Well, like I said before, it's a visceral thing. Things you've said set me off. I'd suggest that you bone up a bit on antitrust law. I don't know a whole lot about it but you seem to lack a sufficient understanding of the statutes and case law to adequately support your position.
"No, its not illegal! Even for a monopoly! Exclusive contracts are legal even for a monopoly!"
Your use of the word "are" is misleading. It may be legal for a monopolist to enter into an exclusive contract. Then again, it may not. The question turns on specific facts. A monopoly, as the article points out, is not illegal in and of itself. However, a monopolist may not use its monopoly power to compete unfairly.
"This did nothing to stop competiton, except for one specific form of it.
Oh, well why didn't you say so? I hadn't realized that Microsoft's secret OEM licensing agreement didn't do anything except for the stuff that it did. I fell much better now.
"It wasnt brought up because its not illegal! The Sherman Act doesn't regulate free trade, it regulates monopolies trying to use its monopoly power to expand into new markets. Period. This isnt a new market. This is the preservation of an existing market."
The Sherman Act is the first piece of U.S. antitrust law. Not the only piece. It is supplemented by the Clayton Act amongst others. The Clayton Act says, in relevant part:
"It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce."
"Unlawful" is typically considered synonymous with "illegal." Just an FYI since you don't seem to think that forcing hardware vendors to only use MS OS products in a box if they use any MS OS products in that box tends to create a monopoly in any line of commerce.
In any event, a monopolist is not supposed to be able to use their power to preserve their monopoly. They are supposed to get the monopoly in the first place because the market rewarded their innovation or service or pricing or something. But they have to be able to lose that monopoly. That's what free trade is all about. It's not the monopolists freedom to shove some spray-painted turd down your throat. It's the customer's freedom to decide that today, I don't want to swallow a turd but would rather eat a nice apple fritter from Bob's Donuts in San Francisco. (mmmmmmmm . . . Bob's . ..)
"Anyone of the large vendors could go head to head with MS any day of the week. IBM was prepared to do it, but chickened out at the last second. Compaq had at the time revenues easily topping that of MS. Dell is a freaking-gigantic monolith."
You say that CPQ had revenues easilly topping those of MSFT at the time. What time? It matters. And revenues aren't profits. Look at telcos if you don't understand that. But if any of the big hardware companies could do it, and if it would have been advantageous to them to do it (which you don't say but I assume you agree with since you say that MSFT was protecting their market by using their monopoly power), why didn't they do it? What does your libertarian philosophy tell you about why a company doesn't do something that would give them advantages in the market? Maybe because they couldn't do it? Or are they all just commies?
"They didnt go against MS for two reasons: first, it was easier not to, and the easy road is often the most attractive. Second, no one gives a shit about your alternate operating systems. MS had the hardware vendors by the balls because people didnt have any tolerance for other OS's. Ask Apple how the mid 1990's was for sales. People wanted Windows, Windows, Windows."
If MSFT had the OEMs by the balls because nobody wanted an alternate OS, why does it require OEMs to enter into this "trade secret" license agreement? Maybe because consumer choice can only hurt it? You say that it was easier for the OEMs to not fight MS. But if your opponent is going to grab you by the balls and squeeze, how much "harder" is fighting? Unless your opponent will kill you instead. Hmmm.
I agree with one thing, people do find the easy road attractive. Maybe that's why they parrot libertarian nonsense about how certain choices of certain classes of people are the ne plus ultra of freedom rather than actually thinking.
"First, people don't watch movies on their computer."
I think this is true of desktops. But lots of people watch movies on their notebooks. The notebook computer with a DVD drive may be the ultimate answer to air rage. It's great.
Imagine a near-future scenario where notebook computers all have built-in 802.11. You get to the airport for check in, take your notebook to the MovieShop, pay a fee and download a movie, rent a decent quality headset (to be returned at your destination airport or on flight), and get a complimentary bag of Smartfood popcorn. Then while the rest of the plebes are watching the heavilly edited version of "Battlefield Earth" (to be fair, my last flight had Shrek.), you are watching almost anything you want. I think that would be a cool service.
You're right! I was "fixing" the link in the earlier post but didn't realize it was simply wrong. Whoops. Somebody please mod me back down if you have the points to burn.
I am also the proud owner of a BodyBilt chair. I made a three way trade to get the chair. It is the greatest thing for big people. I especially love the inflatable lumbar support.
Most of all, the chair is pure Star Trek. Just look. And its design is based on NASA data. How much more geek cred do you want?
1. Walmart, Babbages, Everyone else who sells software is required to 'yank' shelf copies to comply with the injunction. Most stores will be slow to comply, and then claim that they sold out before the injunction hit.
Most stores will realize that flipping the bird to a federal judge is not a sound business strategy. If any injunction requires in store copies to be pulled they will disappear within 48 hours.
2. We'll have a 'limited edition' of WindowsXP in the wild. Pirate copies will run rampant online and on Ebay because 'the most popular OS' cannot be legally bought in stores, and MS will be in the odd position of having to try enforce their own injunction because they can't be seen as encouraging piracy, can they? The other members of the BSA would scream if they did.
ebay wont allow the sales to take place either. They'll either prevent them of their own accord or MS will through ebay's rights holder program.
I think the rest of your predictions are too speculative and too emotional to be useful.
"This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically."
The decision of the Court of Appeals may have substatial predictive value for how the SCOTUS will decide to grant certiorari or decide a case. But it is in no way determinative. This court has emphatically indicated that it may grant certiorari when all observers expected that it would not. This court has decided cases in ways that are not obvious to even experienced SCOTUS observers. Personally, I don't think they will grant cert either but I don't kid myself about it.
"I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal."
Denial of a grant of certiorari in not a mechanism of voicing agreement without hearing the appeal. All that denying cert does is end the appeal proceess for whatever issues are on appeal. The court may or may not agree with the appeals court. It is possible that they disagree with the appeals court on the technical issue but agree with the outcome. They may be waiting for a better set of facts. They may think the issue is insufficiently important. There is no way to tell because the court doesn't say anything when it denies cert.
It is important to remember the effect of granting or denying certiorari. If the court grants cert than the decision it reaches becomes binding precedent on the entire country. If the court does not grant cert, then the court of appeals decision is binding precedent only on those jurisdictions that lie within its circuit. The decision may well influence decisions in other circuits but they are not bound. When there is a disagreement on a point of law between the circuits, the SCOTUS will often settle the matter when a case with the appropriate facts and posture petitions for certiorari.
Finally, I don't see why you think this is a bad move. Does Microsoft have something to lose by exercising their right to appeal? And if they do, is it offset by whatever they gain from the appeal? Just because an appeal doesn't produce the ultimate result of reversal doesn't mean it doesn't produce other, lesser benefits.
Hotmail will delete old mail over new mail. It has happened to me. But when it did, I wrote them and they restored my account back to a certain date. I got all of my stuff back.
The Nolo FAQ is pretty good. In most states, if a secret is accidently divulged to you and you know or have reason to know that the information is secret, you have an affirmative duty to not reveal that secret.
If anyone wants to ask, "How am I supposed to know that _________ is a secret? They can't prove that I knew that.", tell them they should try not to be a dumbass. If you get these messages and know you only got them because of a virus, you know there was no intention to send them to you. Don't publish them. Just let it go. Nobody cares.
But after they've sold their product to e.g. compaq or AOL. they should be able to do with it whatever they like.
Do you think that after someone acquires a piece of code covered by the GPL they should be allowed to do whatever they want with it? Including uses prohibited by the GPL?
Microsoft is obviously a monopolist. And the rules are different for monopolists because of their enormous market power. However, even monopolists have some rights over their own products. Personally, I think it is perfectly reasonable for Microsoft to require that if an ad for their competitor is placed on the desktop, their own ad has to be their as well. That is different then saying the competitor cannot advertise on the desktop at all.
"I was following your train of thought but was disappointed when you got to the end and didn't apply your reasoning to the topic at hand. There was no conclusion."
Sorry about that. I was in rant mode and forgot. But my primary point was about TM law, not the facts of this case.
Also, is a trademarked brand name the same as a trademarked product name? Your argument about Kodak might not apply to light sabers, since it's not a brand. Does the "reasonable person" standard apply here? Would a reasonable person think that Lucas Films had manufactured surgical equipment?
I'm not sure I follow what you mean by brand / product names. Let's see if this clears it up: In trademarks, "brand" is not synonymous with "manufacturer." Sticking with the Eastman Kodak Company, "Kodak" is a trademark that is synonymous with the manufacturer. Another of Eastman Kodak's trademarks is "Advantix." Advantix is not a product. It is a brand name used for Kodak's APS photography products. It is used on both film and cameras. An actual roll of APS film would have both Kodak and Advantix trademarks on it. But the underlying product is film. "Film" can not be trademarked as a name for film.
As applied to the light saber thing, Lucasfilm is the company, "light saber" is the brand, and "toy" is the product. Note, there could obviously be more than one product called "light sabre" so the question is: Is "light saber" a strong mark or a weak one?
"Light" and "saber" are real words. The phrase "light saber" is very suggestive of the idea. That's bad for Lucas. However, they've spent millions promoting the whole Star Wars / Jedi / light saber thing. That tends to make the mark stronger.
Personally, I think "light saber" is distinctive in that when I hear it, I think Star Wars. However, I don't think it is so distinctive as to preclude the use in other ways. The "likelihood" of confusion test seems a bit of a stretch for Lucas. As you imply, who would think that Lucasfilm was manufacturing surgical equipment?
OTOH, imagine that the name had been given to surgical equipment that consisted of advanced VR imaging hardware. That starts to sound like a special effect and not so much of a stretch. Could be an ILM product.
I think Lucasfilm may have over-reacted (which they are famous for) but I think the medical equipment people should have asked. They probably thought of it as a tribute of some kind but that isn't always taken that way. (Remember Apple's "Sagan" / "BHA" code names?) Do I think they'll win? Don't know. They have a lot of lawyers though who are zealous in protecting their billion dollar empire.
Yes, but also unlike copyrights, trademarks are only valid in one field. For example, take the case of the trademark on Linux (TM) laundry detergent. The different classes for which trademarks are defined are on the USPTO's web site.
Class designation has essentially nothing to do with a trademark being applicable in more than one field. Trademarks have relative strength. This strength comes from the nature of the mark (arbitrary collections of letters that aren't "real" words like "Kodak" or "Exxon" or "Flikead" are stronger than real words like "Apple") and the distinctiveness of the mark (the better known the mark is, the stronger it is). The stronger the mark, the more of the world is commanded.
A strong enough mark captures the entire world. The top example of this is "Kodak" it is an arbitrary mark that has an incredible amount of distincitiveness. Everyone in the world knows their products. The key test is "Liklihood of confusion." If I saw a Kodak-brand hammer, I would probably conclude that Kodak was launching a line of tools for whatever reason. But what if they didn't? Do you really think you could sell a Kodak-brand hammer (Class 8: Hand Tools) simply because the Eastman Kodak Company doesn't sell hand tools? I doubt you're looking for that much trouble. If you did, they would crush you. They would win. And they would be right. Why should you ride the coattails of a brand they've spent billions to build
As for the Linux detergent, Linux is know to perhaps millions of people. In my opinion it is a distinctive mark. However, I know it as the kernel of an operating system. I doubt I'd confuse it with soap. However, Linux is a very distinctive word (at least in English) so an interference action might well have succeeded. Don't know. Perhaps Linus isn't protecting the mark? I hope that's not true because if he doesn't he might lose the rights to it.
a. I have never taken federal government money for my education. I have never been to a public school, not for headstart, not for kindergarten, not for grade, middle, or high-school. My parents created me, and they paid up to high-school, when I promptly got a job and paid my $5k tuition bill four years in a row. For college, I first went to a private school with scholarships and private loans and then transferred to an in-state University where I volunteered to pay the out-of-state unsubsidized costs (which still were 1/3 of the private school, btw).
I have to say this is impressive. I admire people who can put their money where their mouth is. I'll point out that you probably do benefit, however indirectly, from federal spending. But that is mostly to tweak you. You are probably doing all you can to live as you think you should. (BTW, if you aren't already, you might consider buying food (at least vegetables) from a farm coop or community agriculture program. Cheap food is another fed subsidy. And the community agriculture stuff often tastes better as a bonus.)
b. As for welfare, my parents nor myself have ever accepted welfare. My parents, who both make a very small amount as city workers and later as a stay-at-home dad, had six kids. They never took welfare, WIC, food-stamps, or any of that "assistance". They bred us, and they fed us.
Again, very admirable.
c. Now, as a member of the workforce, and as a member of a rather low but still sufficient pay-class, I could have taken state-subsidized prescription drug benefits (in Maine). I feel the laws that allow them to be unconstitutional on server levels, so I refused the 'benefit'. I pay for my drugs out of pocket and with my private insurance benefits.
What makes these benefits unconstitutional in your opinion? And do you go to Canada to buy drugs? That would be a sensible alternative given you live in Maine. Or would that be cheating?
Futhermore, I don't like your ad hoc attacks.
This doesn't count as a spelling flame: I think you mean to say ad hominem rather than ad hoc. Just an FYI.
Finally, if we reformed our system, and got the government out of our lives, you would see what we as Americans are really capable of. If Oregon was a truly droughted and changed state then a few things would change, if not for government bailouts: farmers would relocate or move out of the farming business, then due to low supply food prices would go up, then people in more fertile areas of nation would see the opening for more farming and take it and supply would increase, and prices would once again stabilize, along with supply.
I agree that subsidies distort markets and cause inefficient and undesirable resource allocation.
All we need is for the government to leave us be, to allow us to exploit our natural and progressive talents, and to rise to the challenges facing us. The process has been started, mostly by freedom minded people like myself. Our day is rising, and as it stands, we are quickly growing. Five years ago we in the LP numbered less than 100,000. Today, we number over 500,000 - and that's only those of use who registered. That number is likely over 1 million, and everyday we grow stronger.
I think you believe what you say and that is good. I think you try to do what you believe and that is rare and admirable. I think you are wrong about what would best benefit the world but that's life. Saying "that number is likely over 1 million" is meaningless. The web site only claims 224,000 registered voters. If you want to prove something, pretend I'm from Missouri. Show me.
No statement more accurately captures Americans' beliefs about themselves than this. Americans overwhelmingly perceive themselves as middle-class. I know millionaires who think of themselves as "moderately well off... though by no means wealthy". I don't really have a point; it's just some bizzare psychological block I've noticed in my fellow Americans.
I think you're right. I also think that is largely a source of strength for the US. But to clarify, I make less than $60K a year, have excellent benefits, and live in New York City. I think calling myself "moderately well off" may even be bragging given the cost of living here.
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Do you have a case citation or a newspaper article?
FYI, there is no "prosecution" in a civil case. There are only plaintiffs and defendants.
Your claim seems to be that only the drunk should take responsibility for his actions. Isn't the bar responsible for its action in serving the drunk? Or does the bar get a free pass because it is a servant of the market and can therefore do no wrong?
I am always skeptical of anecdotes about some horrible thing that happened in some lawsuit. All too often the reality of the situation and the decision is different. For instance, the McDonald's coffee case. This is still routinely pointed out as an example of an out-of-control civil justice system. But the people who claim this never seem to point out that the woman who was burned tried to settle solely for her medical expenses (a few thousand), that McDonald's had already had hundreds of such claims and chose to ignore them, that McDonald's was shown to deliberately serve their coffee at a much higher temperature than either home coffee machines or other fast food chains (because it takes longer to drink hot coffee so there are fewer refills and you can use cheaper coffee and still get a decent aroma if you make it very hot). Moreover, the award was later reduced.
Since you are down on "liberal/socialists", who is going to pay for the mass transit systems you want? Clearly the market will not provide.
I think yours is a reasonable but incomplete view of "civil disobedience." If emulating the campaigns (or at least the non-violent parts) of King and Gandhi and Biko is what someone wishes to do, then they do need to be willing to face the consequences.
OTOH, a single person cannot succeed. All of the civil rights campaigns that succeeded did so because of their numbers. The campaign takes a long time and needs to pile small victory upon small victory.
If you do it by yourself, you stick up like a nail and get hammered down. So instead of one person publishing it, try to get hundreds. Perhaps the EFF or EPIC or some such group can help lay the strategy for a test case. It may be that reader software is not the appropriate vehicle to bring a DMCA challenge. These sorts of changes don't just happen, they are made. The landmark Brown v. Board of Education was the ultimate school desegregation case but dozens of earlier cases were brought at the lower levels to lay the groundwork that made the Supreme Court decision inevitable.
Finally, anonymous action is not the same thing as cowardice. It isn't traditional civil disobedience, but it isn't cowardice either. Similarly, rushing in may be foolish rather than brave. Pick the fights you have a chance to win and then prepare as thoroughly as you can. You need to be able to risk failure, but you don't have to seek it out.
I don't think I called you any names though I certainly made fun of you. I didn't do it because I don't like what you say but because I think what you say is whacked and that you make your arguments in a disingenuous manner. (I accept that this may be a distinction without a difference.) I never called you sophomoric (unless I did the last time). I don't think you are immature, I think you are blinded by your ideology.
"Ad hoc" means "for this" in Latin and is most often used in conjunction with committees. "Ad hominem" means "to the person" and is presumably what you meant to say. I don't think I engae in any ad hominem attacks until the very end (though I get close to the edge a few times before that). But in general, you're right. Frankly, the things you write are often so extreme and wrong-headed that I have a visceral reaction to them.
"First, the "trade secret" agreements MS made with hardware OEM's is legal, even if they are a monopoly. For more information this, please see the SCOTUS decision on "INTERNATIONAL BUSINESS MACHINES CORP. v. UNITED STATES, 298 U.S. 131 (1936)". It clearly defines the ability of monopolists to protect the exclusivity of distribution, even if it defeats some or all competitive efforts."
Have you ever actually read this decision? It stands for almost the exact opposite proposition. In that case, IBM leased card reading machines. The lease contracts contained a provision that required the lessee to only use IBM-supplied punch cards. The U.S. government sued. The trial court found, ta da!, a violation of the same section of the Clayton Act as the one I mentioned before. IBM contended it had patents that, collectively, gave it a monopoly to manufacture, vend and use the cards. In its review, the Supreme Court thought the patent claim was weak but didn't rule against IBM on those grounds. Instead, the court said:
The Court concluded:
This case has not been reversed. Your analysis of it is simply wrong. I think you were trying an argumentum ab auctoritate, or argument from authority, and counting on people to not actually know.
"Ask yourself, is there more competition is desktop OS' today than ten years ago? How is that so if MS is a monopoly? Its not."
A better question would be: "Is there more or less competition in the desktop OS market today than there would have been if Microsoft had not used its dominant market position (~90%) to force OEMs to not sell dual-boot machines?" It has been repeatedly shown in court that a company can lose market share or prices can come down and still be violating the antitrust laws. If they are using monopoly power to slow the losses, that's illegal.
"Third, why didnt hardware vendors challenge MS? Serveral reasons. First, people dont have any reason to not use Windows. Second, application vendors are cool to the idea of new platforms. Third, it is a risky proposition, where MS is a solid established equation. If they struck on their own they might make more, or they might lose big time. Sticking with MS was a measure of their faith in MS to deliver. Fourth, they are hardware vendors, and as Apple can clearly attest to, doing the "whole" package of hardware and software isn't easy by a long shot. Fifth, consumers by and large either (a) love MS software (not incredibly uncommon) or (b) dont hate it enough to ever switch."
I think your position here boils down to the idea that people are generally sufficiently satisfied to not switch. And you may well be right. But that is irrelevant to this discussion. Be's concern is that people never even got the chance to decide. Assume, arguendo, that Be could and would have provided the OS to major OEMs at no cost as a way of getting market share. (You know, like Internet Explorer.) Further assume that they could satisfy whatever inegration and support concerns the OEMs had. In that world, where is the risk to the OEMs? The customer gets a choice on their first time boot:
Do you want a Microsoft Windows Only machine or do you want Microsoft Windows and BeOS machine (takes an additional 70 megabytes)?
The customer picks and that's that. Some people say yes, some say no. But they had the choice! Hooray! Maybe no one would choose it. Maybe no one would develop for it. But the OEMs didn't have to "strike out on their own." They could have offered both if Microsoft hadn't forced them to enter into an agreement that precluded them from doing so. Also, I don't understand the "whole package" thing. Do you mean that they wouldn't want to roll their own Linux disto? Maybe so. But I imagine they could reach a satisfactory agreement with Red Hat for instance. What I don't understand is why you appear to support actions that prevent the free market from working.
"Just because most people don't dislike MS doesn't make them a monopoly."
True. It's the ~90% share of the desktop OS market that makes them a monopoly. And it's using the power of that monopoly to force others to do things they wouldn't otherwise that is illegal.
"That will conclude my remarks here right now. If you respond, try not to personally be rude or demeaning - it only hurts your position, which is actually rather strong.
Well, like I said before, it's a visceral thing. Things you've said set me off. I'd suggest that you bone up a bit on antitrust law. I don't know a whole lot about it but you seem to lack a sufficient understanding of the statutes and case law to adequately support your position.
Your use of the word "are" is misleading. It may be legal for a monopolist to enter into an exclusive contract. Then again, it may not. The question turns on specific facts. A monopoly, as the article points out, is not illegal in and of itself. However, a monopolist may not use its monopoly power to compete unfairly.
"This did nothing to stop competiton, except for one specific form of it.
Oh, well why didn't you say so? I hadn't realized that Microsoft's secret OEM licensing agreement didn't do anything except for the stuff that it did. I fell much better now.
"It wasnt brought up because its not illegal! The Sherman Act doesn't regulate free trade, it regulates monopolies trying to use its monopoly power to expand into new markets. Period. This isnt a new market. This is the preservation of an existing market."
The Sherman Act is the first piece of U.S. antitrust law. Not the only piece. It is supplemented by the Clayton Act amongst others. The Clayton Act says, in relevant part:
"It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce."
"Unlawful" is typically considered synonymous with "illegal." Just an FYI since you don't seem to think that forcing hardware vendors to only use MS OS products in a box if they use any MS OS products in that box tends to create a monopoly in any line of commerce.
In any event, a monopolist is not supposed to be able to use their power to preserve their monopoly. They are supposed to get the monopoly in the first place because the market rewarded their innovation or service or pricing or something. But they have to be able to lose that monopoly. That's what free trade is all about. It's not the monopolists freedom to shove some spray-painted turd down your throat. It's the customer's freedom to decide that today, I don't want to swallow a turd but would rather eat a nice apple fritter from Bob's Donuts in San Francisco. (mmmmmmmm . . . Bob's . . .)
"Anyone of the large vendors could go head to head with MS any day of the week. IBM was prepared to do it, but chickened out at the last second. Compaq had at the time revenues easily topping that of MS. Dell is a freaking-gigantic monolith."
You say that CPQ had revenues easilly topping those of MSFT at the time. What time? It matters. And revenues aren't profits. Look at telcos if you don't understand that. But if any of the big hardware companies could do it, and if it would have been advantageous to them to do it (which you don't say but I assume you agree with since you say that MSFT was protecting their market by using their monopoly power), why didn't they do it? What does your libertarian philosophy tell you about why a company doesn't do something that would give them advantages in the market? Maybe because they couldn't do it? Or are they all just commies?
"They didnt go against MS for two reasons: first, it was easier not to, and the easy road is often the most attractive. Second, no one gives a shit about your alternate operating systems. MS had the hardware vendors by the balls because people didnt have any tolerance for other OS's. Ask Apple how the mid 1990's was for sales. People wanted Windows, Windows, Windows."
If MSFT had the OEMs by the balls because nobody wanted an alternate OS, why does it require OEMs to enter into this "trade secret" license agreement? Maybe because consumer choice can only hurt it? You say that it was easier for the OEMs to not fight MS. But if your opponent is going to grab you by the balls and squeeze, how much "harder" is fighting? Unless your opponent will kill you instead. Hmmm.
I agree with one thing, people do find the easy road attractive. Maybe that's why they parrot libertarian nonsense about how certain choices of certain classes of people are the ne plus ultra of freedom rather than actually thinking.
I've read that newspaper. I don't think that all of them are true.
I think this is true of desktops. But lots of people watch movies on their notebooks. The notebook computer with a DVD drive may be the ultimate answer to air rage. It's great.
Imagine a near-future scenario where notebook computers all have built-in 802.11. You get to the airport for check in, take your notebook to the MovieShop, pay a fee and download a movie, rent a decent quality headset (to be returned at your destination airport or on flight), and get a complimentary bag of Smartfood popcorn. Then while the rest of the plebes are watching the heavilly edited version of "Battlefield Earth" (to be fair, my last flight had Shrek.), you are watching almost anything you want. I think that would be a cool service.
You're right! I was "fixing" the link in the earlier post but didn't realize it was simply wrong. Whoops. Somebody please mod me back down if you have the points to burn.
Fixed link. Unfortunately, it looks like a bit pricey.
Testify Brother!
I am also the proud owner of a BodyBilt chair. I made a three way trade to get the chair. It is the greatest thing for big people. I especially love the inflatable lumbar support.
Most of all, the chair is pure Star Trek. Just look. And its design is based on NASA data. How much more geek cred do you want?
1. Walmart, Babbages, Everyone else who sells software is required to 'yank' shelf copies to comply with the injunction. Most stores will be slow to comply, and then claim that they sold out before the injunction hit.
Most stores will realize that flipping the bird to a federal judge is not a sound business strategy. If any injunction requires in store copies to be pulled they will disappear within 48 hours.
2. We'll have a 'limited edition' of WindowsXP in the wild. Pirate copies will run rampant online and on Ebay because 'the most popular OS' cannot be legally bought in stores, and MS will be in the odd position of having to try enforce their own injunction because they can't be seen as encouraging piracy, can they? The other members of the BSA would scream if they did.
ebay wont allow the sales to take place either. They'll either prevent them of their own accord or MS will through ebay's rights holder program.
I think the rest of your predictions are too speculative and too emotional to be useful.
"This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically."
The decision of the Court of Appeals may have substatial predictive value for how the SCOTUS will decide to grant certiorari or decide a case. But it is in no way determinative. This court has emphatically indicated that it may grant certiorari when all observers expected that it would not. This court has decided cases in ways that are not obvious to even experienced SCOTUS observers. Personally, I don't think they will grant cert either but I don't kid myself about it.
"I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal."
Denial of a grant of certiorari in not a mechanism of voicing agreement without hearing the appeal. All that denying cert does is end the appeal proceess for whatever issues are on appeal. The court may or may not agree with the appeals court. It is possible that they disagree with the appeals court on the technical issue but agree with the outcome. They may be waiting for a better set of facts. They may think the issue is insufficiently important. There is no way to tell because the court doesn't say anything when it denies cert.
It is important to remember the effect of granting or denying certiorari. If the court grants cert than the decision it reaches becomes binding precedent on the entire country. If the court does not grant cert, then the court of appeals decision is binding precedent only on those jurisdictions that lie within its circuit. The decision may well influence decisions in other circuits but they are not bound. When there is a disagreement on a point of law between the circuits, the SCOTUS will often settle the matter when a case with the appropriate facts and posture petitions for certiorari.
Finally, I don't see why you think this is a bad move. Does Microsoft have something to lose by exercising their right to appeal? And if they do, is it offset by whatever they gain from the appeal? Just because an appeal doesn't produce the ultimate result of reversal doesn't mean it doesn't produce other, lesser benefits.
It's just a Python riff. I oughta slice you in two and dance hallelujah on your grave.
Hotmail will delete old mail over new mail. It has happened to me. But when it did, I wrote them and they restored my account back to a certain date. I got all of my stuff back.
The Nolo FAQ is pretty good. In most states, if a secret is accidently divulged to you and you know or have reason to know that the information is secret, you have an affirmative duty to not reveal that secret.
If anyone wants to ask, "How am I supposed to know that _________ is a secret? They can't prove that I knew that.", tell them they should try not to be a dumbass. If you get these messages and know you only got them because of a virus, you know there was no intention to send them to you. Don't publish them. Just let it go. Nobody cares.
But after they've sold their product to e.g. compaq or AOL. they should be able to do with it whatever they like.
Do you think that after someone acquires a piece of code covered by the GPL they should be allowed to do whatever they want with it? Including uses prohibited by the GPL?
Microsoft is obviously a monopolist. And the rules are different for monopolists because of their enormous market power. However, even monopolists have some rights over their own products. Personally, I think it is perfectly reasonable for Microsoft to require that if an ad for their competitor is placed on the desktop, their own ad has to be their as well. That is different then saying the competitor cannot advertise on the desktop at all.
"I was following your train of thought but was disappointed when you got to the end and didn't apply your reasoning to the topic at hand. There was no conclusion."
Sorry about that. I was in rant mode and forgot. But my primary point was about TM law, not the facts of this case.
Also, is a trademarked brand name the same as a trademarked product name? Your argument about Kodak might not apply to light sabers, since it's not a brand. Does the "reasonable person" standard apply here? Would a reasonable person think that Lucas Films had manufactured surgical equipment?
I'm not sure I follow what you mean by brand / product names. Let's see if this clears it up: In trademarks, "brand" is not synonymous with "manufacturer." Sticking with the Eastman Kodak Company, "Kodak" is a trademark that is synonymous with the manufacturer. Another of Eastman Kodak's trademarks is "Advantix." Advantix is not a product. It is a brand name used for Kodak's APS photography products. It is used on both film and cameras. An actual roll of APS film would have both Kodak and Advantix trademarks on it. But the underlying product is film. "Film" can not be trademarked as a name for film.
As applied to the light saber thing, Lucasfilm is the company, "light saber" is the brand, and "toy" is the product. Note, there could obviously be more than one product called "light sabre" so the question is: Is "light saber" a strong mark or a weak one?
"Light" and "saber" are real words. The phrase "light saber" is very suggestive of the idea. That's bad for Lucas. However, they've spent millions promoting the whole Star Wars / Jedi / light saber thing. That tends to make the mark stronger.
Personally, I think "light saber" is distinctive in that when I hear it, I think Star Wars. However, I don't think it is so distinctive as to preclude the use in other ways. The "likelihood" of confusion test seems a bit of a stretch for Lucas. As you imply, who would think that Lucasfilm was manufacturing surgical equipment?
OTOH, imagine that the name had been given to surgical equipment that consisted of advanced VR imaging hardware. That starts to sound like a special effect and not so much of a stretch. Could be an ILM product.
I think Lucasfilm may have over-reacted (which they are famous for) but I think the medical equipment people should have asked. They probably thought of it as a tribute of some kind but that isn't always taken that way. (Remember Apple's "Sagan" / "BHA" code names?) Do I think they'll win? Don't know. They have a lot of lawyers though who are zealous in protecting their billion dollar empire.
Yes, but also unlike copyrights, trademarks are only valid in one field. For example, take the case of the trademark on Linux (TM) laundry detergent. The different classes for which trademarks are defined are on the USPTO's web site.
Class designation has essentially nothing to do with a trademark being applicable in more than one field. Trademarks have relative strength. This strength comes from the nature of the mark (arbitrary collections of letters that aren't "real" words like "Kodak" or "Exxon" or "Flikead" are stronger than real words like "Apple") and the distinctiveness of the mark (the better known the mark is, the stronger it is). The stronger the mark, the more of the world is commanded.
A strong enough mark captures the entire world. The top example of this is "Kodak" it is an arbitrary mark that has an incredible amount of distincitiveness. Everyone in the world knows their products. The key test is "Liklihood of confusion." If I saw a Kodak-brand hammer, I would probably conclude that Kodak was launching a line of tools for whatever reason. But what if they didn't? Do you really think you could sell a Kodak-brand hammer (Class 8: Hand Tools) simply because the Eastman Kodak Company doesn't sell hand tools? I doubt you're looking for that much trouble. If you did, they would crush you. They would win. And they would be right. Why should you ride the coattails of a brand they've spent billions to build
As for the Linux detergent, Linux is know to perhaps millions of people. In my opinion it is a distinctive mark. However, I know it as the kernel of an operating system. I doubt I'd confuse it with soap. However, Linux is a very distinctive word (at least in English) so an interference action might well have succeeded. Don't know. Perhaps Linus isn't protecting the mark? I hope that's not true because if he doesn't he might lose the rights to it.
It has also been a popular quote for cookie files for years.
stable/libertarian
Am I the only one that found that extra funny?
they're "stress relief toys".. Ever see Cherry 2000? hey, astronauts have needs too...
I believe they just use a milspec Realdoll.
Your expenses total more than $100K a year? Ouch. Do you have 50 kids or what?
No, just a pair of Porches.
Hmmmm. I'd heard those spark plugs were expensive.
a. I have never taken federal government money for my education. I have never been to a public school, not for headstart, not for kindergarten, not for grade, middle, or high-school. My parents created me, and they paid up to high-school, when I promptly got a job and paid my $5k tuition bill four years in a row. For college, I first went to a private school with scholarships and private loans and then transferred to an in-state University where I volunteered to pay the out-of-state unsubsidized costs (which still were 1/3 of the private school, btw).
I have to say this is impressive. I admire people who can put their money where their mouth is. I'll point out that you probably do benefit, however indirectly, from federal spending. But that is mostly to tweak you. You are probably doing all you can to live as you think you should. (BTW, if you aren't already, you might consider buying food (at least vegetables) from a farm coop or community agriculture program. Cheap food is another fed subsidy. And the community agriculture stuff often tastes better as a bonus.)
b. As for welfare, my parents nor myself have ever accepted welfare. My parents, who both make a very small amount as city workers and later as a stay-at-home dad, had six kids. They never took welfare, WIC, food-stamps, or any of that "assistance". They bred us, and they fed us.
Again, very admirable.
c. Now, as a member of the workforce, and as a member of a rather low but still sufficient pay-class, I could have taken state-subsidized prescription drug benefits (in Maine). I feel the laws that allow them to be unconstitutional on server levels, so I refused the 'benefit'. I pay for my drugs out of pocket and with my private insurance benefits. What makes these benefits unconstitutional in your opinion? And do you go to Canada to buy drugs? That would be a sensible alternative given you live in Maine. Or would that be cheating?
Futhermore, I don't like your ad hoc attacks.
This doesn't count as a spelling flame: I think you mean to say ad hominem rather than ad hoc. Just an FYI.
Finally, if we reformed our system, and got the government out of our lives, you would see what we as Americans are really capable of. If Oregon was a truly droughted and changed state then a few things would change, if not for government bailouts: farmers would relocate or move out of the farming business, then due to low supply food prices would go up, then people in more fertile areas of nation would see the opening for more farming and take it and supply would increase, and prices would once again stabilize, along with supply.
I agree that subsidies distort markets and cause inefficient and undesirable resource allocation.
All we need is for the government to leave us be, to allow us to exploit our natural and progressive talents, and to rise to the challenges facing us. The process has been started, mostly by freedom minded people like myself. Our day is rising, and as it stands, we are quickly growing. Five years ago we in the LP numbered less than 100,000. Today, we number over 500,000 - and that's only those of use who registered. That number is likely over 1 million, and everyday we grow stronger.
I think you believe what you say and that is good. I think you try to do what you believe and that is rare and admirable. I think you are wrong about what would best benefit the world but that's life. Saying "that number is likely over 1 million" is meaningless. The web site only claims 224,000 registered voters. If you want to prove something, pretend I'm from Missouri. Show me.
No statement more accurately captures Americans' beliefs about themselves than this. Americans overwhelmingly perceive themselves as middle-class. I know millionaires who think of themselves as "moderately well off... though by no means wealthy". I don't really have a point; it's just some bizzare psychological block I've noticed in my fellow Americans.
I think you're right. I also think that is largely a source of strength for the US. But to clarify, I make less than $60K a year, have excellent benefits, and live in New York City. I think calling myself "moderately well off" may even be bragging given the cost of living here.