Court Overreacts And Orders Full Takedown Of Anti-H-1B Websites Over Contradictory Libel/Copyright Claims

from the going-too-far dept

Tue, Dec 29th 2009 2:04pm — Mike Masnick

It's no secret that I'm a supporter of allowing more skilled immigrants into the US. The arguments against it make little sense and are usually thinly veiled racism against foreigners. Plenty of studies have shown that skilled immigrants help create new jobs rather than take them away. And barring skilled immigrants from coming into the US just means that they end up working for non-US competitors, rather than helping US companies grow. It's hard to fathom a reason to be against increasing skilled immigration, other than being racist or economically illiterate. Now, that said, it's also no secret that the H-1B process that is one of the main (though not only) routes for skilled technology foreigners to work in the US has some serious flaws and is often abused. But the response should not be to end the H-1B program, but to fix the abuses.

All that said, I'm somewhat horrified at the reports (which a whole bunch of you are sending in) about a judge ordering three anti-H-1B websites be taken totally offline. I disagree heavily with those three sites, and think that they are misleading in the extreme, but the order to take them offline goes way overboard. The judge even went further and ordered Facebook to disable the Facebook page of one of the sites.

At issue are libel and copyright charges from a company named Apex, which these sites accuse of abusing the H-1B process. Given that I'm very much against the abuses, I'm all for exposing those who abuse the process. Now here's where things get weird. The main issue is that these sites posted a copy of what's supposedly an employment agreement from Apex, and the discussion "alleges that employees will find it difficult to leave Apex because of its contract terms." Apex claims that this is defamatory, and notes that it had three "consultants" refuse to report for employment because of it. Yet... it also claims that it holds the copyright on the documents. In other words, it admits that the documents are real and legitimate. Otherwise it wouldn't hold the copyright. Thus, it's hard to see how the two charges can stand together. Either the documents are false and defamatory, or there's (potential) copyright infringement and the documents are accurate in portraying Apex's contract terms. So which is it?

Unfortunately we don't know, because the judge has shut down everything.

What's not at all clear is why the judge would completely shut down all three websites and the Facebook page. If there are problems with just this document, order an injunction against that document. Completely shutting down all three websites goes way too far, and seems to go well beyond what either defamation law or copyright law should allow.

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Filed Under: copyright, defamation, free speech, immigration h-1b, libel, takedowns, websites

46 Comments

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Ed Woychowsky, 29 Dec 2009 @ 2:16pm

Questions
Is New Jersey part of the United States?
Does the first admendment apply in New Jersey?
Is the judge trying to pinch the tubes?
Do judges run for office in New Jersey?
If so, are they required disclose their contributors?
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TSO, 29 Dec 2009 @ 2:51pm

Website(s) in question reloacting outside US in...
5.... 4.... 3.... 2.... 1....
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jj, 29 Dec 2009 @ 3:05pm

H-1B not needed
All, and I mean all, of those studies showing that “immigrants help create new jobs rather than take them away” have been done by people who have a stake in more cheap foreign labor. Having Americans in those jobs would have done the same thing.
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AC, 29 Dec 2009 @ 3:11pm

Background info can be found by doing the following Google searches:
1. site:endh1b.com apex contract
2. "apex technology group" "employment agreement"

With (1), hit 'cached' to show what Google remembers.
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Anonymous Coward, 29 Dec 2009 @ 3:29pm

Hm. Sounds like a certain New Jersey judge is getting a new sailboat for Christmas; courtesy of his close, personal friend at Apex.
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anonymous, 29 Dec 2009 @ 3:33pm

Judge
if the judge acted wrongly he should lose his job and be forced to pay all fees and any monies lost for his action, this as it stands smacks HUGELY of flat out censorship, especially since claiming libel AND copyright at the same time over the same document pretty much negates any claim Apex has.
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YoYoYou, 29 Dec 2009 @ 3:39pm

There will be on the horizon
OK go ahead and close those websites. We IT workers will open another 10 more anti H-1B sites. Since I am fan of those 3 sites. Those sites are my heroes. They did great job to expose those crook H-1B body shop India and US corporations. The truth is hurt. Keep hurt them more until they all gone from this planet. Huray ...
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Mike Masnick (profile), 29 Dec 2009 @ 3:51pm

Re: H-1B not needed
All, and I mean all, of those studies showing that “immigrants help create new jobs rather than take them away” have been done by people who have a stake in more cheap foreign labor.

That's simply not true. Most of the studies I've seen on the subject have been academic studies, not backed by corporate interests.

Having Americans in those jobs would have done the same thing.

If there were enough skilled American workers to fill those jobs, then perhaps. If there aren't, then you have an issue. Or, if there are workers from elsewhere who can help power a breakthrough, wouldn't you prefer it be for an American company here rather than a foreign company abroad.
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bob, 29 Dec 2009 @ 4:05pm

We Have The Skilled
When I lived in KY my neighbors were H1B's from India.
They did the software infrastructure for the payment system that is in use by DFAS when they moved from Cleveland OH.
They were much less costly than talent acquired from inside the USA.
Did they take away jobs from citizens of the USA, you decide.
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The Anti-Mike (profile), 29 Dec 2009 @ 4:40pm

Re: There will be on the horizon
So what part of India are you from?
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WD, 29 Dec 2009 @ 4:53pm

Re: Re: H-1B not needed
Here is some more reading for you.
http://heather.cs.ucdavis.edu/h1bwritings.html

Personally, I'm against H-1B's being used by any consulting/outsourcing company. (Companies like this: http://www.inc.com/magazine/20070901/how-i-did-it-prathiba-ramadoss.html )

The skilled workers could be here in the U.S., but companies have lost interest in training/retaining employees. I saw this drop off in the 90s, when it was outsource the new skills and keep the current employees on maintenance of legacy systems. Once that happens, they're just a layoff away from being unemployable, especially if over 40.

H-1Bs are not the only problem though. I've seen abuse of the 90-day visa with a constant rotation of employees from India to fill project positions.
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JustMe (profile), 29 Dec 2009 @ 5:06pm

Sorry Mike
I'm usually with you but I think you are wrong on this one, at least for the IT market in the midwest. And yes, as only a 2nd and/or 3rd generation citizen myself I'm certainly in favor of immigration. However, these unfortunate H1B visa holders are paid much less than their American counterparts (though certainly more than they would make back home) and have absolutely replaced US workers.
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ChurchHatesTucker (profile), 29 Dec 2009 @ 5:11pm

Re: Re: H-1B not needed
If there were enough skilled American workers to fill those jobs, then perhaps. If there aren't, then you have an issue.

Or if the imported workers are willing to work cheaper than the natives, then you (or at least the indigenous workers) have an issue.
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wizened (profile), 29 Dec 2009 @ 5:44pm

Re: Re: H-1B not needed
I have no particular dog in this race but I do personally know 5 different highly skilled software developers who were replaced by Indian immigrants to do the same job at wages that were 60% of what the American workers were making. And, no, the new workers were not of equal or greater skill. In fact they were significantly lower on the skill rating and ran the associated project way over their deadlines. So, abuse does occur and American workers are displaced. At least be honest about this kind of abuse rather than white wash it.
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JackSombra (profile), 29 Dec 2009 @ 5:53pm

Re: Re: H-1B not needed
If there were enough skilled American workers to fill those jobs, then perhaps. If there aren't, then you have an issue.

God not the old line of "not enough of the local workforce skilled enough to do the job", surely you can do better than?

The real truth is "not enough of the local workforce skilled enough to do the job on the cheap"

Take for example the case in the UK with ICT's (Intra Company Transfers) which is the main method companies use to bring in staff these days due to outsourcing offshore falling out of favour.

In 2008, some 30,000 IT people were brought into the UK under the ICT route, 44% of them by just 7 Indian based outsourcing companies and coincidentally the IT sector contains not a single occupation on the skills shortage list.

We quite litterly had thousands of people working their notice periods training their cheaper imported Indian replacements to do the exact same job they had been doing.

And it's not the case with these Indians that they would raise their prices to the normal local levels over time due to cost of living either, because if they leave their job's, guess what? they have to leave the country (Nor is it a case that they bring in much tax revenue as they get the bulk of their pay back in India with just subsistence salary paid in the UK)

This all sounding familiar?

Sure, H1B and ICT's, on paper and if not abused, are great things that can benefit the destination country as much if not more so than the imported workforce, but the problem is the companies not abusing them are a distinct minority not majority. The majority are just using them to give them access to a cheap "indentured" workforce close by
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Dave Ravel, 29 Dec 2009 @ 5:56pm

Not Enough Jobs for Americans
Over the past twenty years, American engineers and IT workers have been replaced by cheaper foreign labor. As you know, there are now not enough jobs for Americans. A line must be drawn to stop the influx of non US workers to take jobs we all need. The shoddy excuse of calling anyone racist for wanting to work in their chosen professions for good wages no longer flies, Mike. Follow the money on who is profiting from this.

This company and this judge have some explaining to do, as does a complicit media that has buried the truth about this anti-American worker practice for far too long.
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Anonymous Coward, 29 Dec 2009 @ 6:24pm

What is wrong with protectionism? It is my country, I pay taxes, I am a citizen, I support western values and lifestyles, and I am expected to defend and protect my country if called to do so. In return I expect to be defended from foreign interests.

This is simply a race to the bottom for the western worker and all workers will lose. Of course that is what the "free trade" proponents want anyway - so at least they are happy.
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btr1701 (profile), 29 Dec 2009 @ 6:51pm

> Completely shutting down all three websites goes way too far,
> and seems to go well beyond what either defamation law or
> copyright law should allow.

Libel and copyright law? I think you're missing the forest for the trees here.

It goes well beyond what the 1st Amendment would allow, which trumps both libel *and* copyright law.
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harbingerofdoom (profile), 29 Dec 2009 @ 6:54pm

having watched my job get outsourced to overseas interests in order to "maintain sustainability" (in plain english that means increase profit margins) i no longer see h-1b as being a benefit.
in all reality, i see a huge negative impact on the economy and further erosion of the middle class as only a few move on to higher paying jobs and currently most people i know move on to lower paying jobs often in other industries as that was all they could get.

tell me again how this program helps anyone other than shoring up the hiring companies bottom line? it has certainly never created a single job for me or anyone that i know.
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Anonymous Coward, 29 Dec 2009 @ 6:55pm

Re:
My argument against protectionism is that it's not sustainable - how can you possibly fight it? In this specific case of workers willin to work cheaper it just means th whole freaking company moves abroad, which is bad.
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JackSombra (profile), 29 Dec 2009 @ 7:19pm

Re: Re:
Total protectionism is not good, no argument against that. Properly done it should be a balancing act, enough to keep prices/costs down, but not so much as to lead to mass exporting of jobs/importing of cheaper labour

But in the west (mainly English speaking west) the scale has gone too far the other way. Not only has it been made ridiculously easy to import staff on the cheap but they have made just as easy and more importantly cost effect to export the rest of the job's

Like to use your worst case scenario "just means the whole freaking company moves abroad", if the company has moved all its low paying/manual labour job's abroad, is mainly onshoring cheaper foreign labour for the higher level stuff and is probably arranging it tax affairs in such a way that it is paying virtually no tax's in its "home country" in the west...what exactly is the point in trying to keep the company from moving abroad? They are not benefiting the economy or the locals in any meaningful way.

Countries in the west not only need to start seriously tightening up their immigration rule's but also need to start raising their import tax's and closing tax loopholes so that it no longer is so damn cost effective for companies to do what they are doing, because while the current situation might lead to cheaper goods in the short term, in the long run no one is going to be able to afford those goods in the west because all the locals will be out of work or be on the local equivalent of minimum wage
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Anonymous Coward, 29 Dec 2009 @ 7:27pm

Re:
It goes well beyond what the 1st Amendment would allow, which trumps both libel *and* copyright law.

Not unless the judge changes his mind or is overridden by a higher ranking judge.
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Mike Masnick (profile), 29 Dec 2009 @ 7:33pm

Re: Sorry Mike
However, these unfortunate H1B visa holders are paid much less than their American counterparts

That's an abuse of the system. The H1B *requires* recipients to be paid the equivalent wage of a US citizen holding the same job. Again, get rid of the abuses, not the program.
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Paul Alan Levy (profile), 29 Dec 2009 @ 7:43pm

Overbroad
Overbroad indeed. Even assuming that some statements posted to the site were actionable, the judge ignored section 230 (but was section 230 argued to him?) in issuing an injunction against the site host. And even worse -- a judge in New Jersey has issued orders that hosting sites on the other side of the country have obeyed, instead of insisting that the plaintiffs get orders in the Arizona and California courts. Why are GoDaddy and other companies accepting these orders?
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The Anti-Mike (profile), 29 Dec 2009 @ 8:18pm

Re: Re: Sorry Mike
At 9% plus unemployment, the H1B program should probably be entirely shut down for new applicants, and more money brought forth to train US workers to do the jobs.

The system is way to easy to abuse, it is way too easy to take advantage of foreign workers, and it is way too easy for companies to manipulate the system so they can hire less expensive outside workers.
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nasch (profile), 29 Dec 2009 @ 8:29pm

Re: Re: Sorry Mike
If the system is primarily abused and rarely used properly (I don't know if that's the case), doesn't that indicate that it's probably necessary to change the system?
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The Anti-Mike (profile), 29 Dec 2009 @ 8:57pm

Re: Re: Sorry Mike
Mike, I was just thinking (reading your comments about Nokia).

H1B and Patents are both government constructs, systems created by the government to improve X or to encourage Y, whatever those goals may be.

H1B seems to be a program that is abused often enough, either by the employers trying to get cheaper labor, or by the employees trying to get a long enough time in the US perhaps to apply for citizenship or whatever.

Even members of the house and senate have reported abuse levels upwards to 20%.

So this is a program you want to save, get rid of the abuses, not the program.

Patents? The abuse levels are small (and much of the abuse you claim is just patent holders trying to enforce their rights), yet you pretty much damn the concept and wish that it was gone.

Perhaps if the abuse is patents went up to 20%, you would want to save it?
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Anonymous Coward, 29 Dec 2009 @ 9:20pm

Re: Re: H-1B not needed
Citations?
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Anonymous Coward, 29 Dec 2009 @ 9:35pm

Re: Re: Sorry Mike
The H1B *requires* recipients to be paid the equivalent wage of a US citizen holding the same job.

In theory, maybe. In reality, not so much.

Again, get rid of the abuses, not the program.

Get rid of the program until a system that actually prevents the abuses is implemented.
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theodp, 29 Dec 2009 @ 9:43pm

Re: Re: H-1B not needed
BTW, the Department of Homeland Security reported that occupations in education accounted for more than 10% of all H-1B beneficiaries in 2008. The DHS also notes that institutions of higher education, as well as their related or affiliated nonprofit entities, are exempt from any H-1B caps. As such, it would seem that bias in academic studies is hardly out of the question. My two cents. :-)
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deathspal, 30 Dec 2009 @ 6:41am

Re: Re: H-1B not needed
Excuse me but you show me one "Academic Institution" doing research that doesn't have "Corporate interests"? I work for one of the largest faith based Universities in the nation, and the success of failure of a number of our programs relies on our "Corporate relationships"....
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btr1701 (profile), 30 Dec 2009 @ 7:14am

Re: Re: Bill of Rights
> > It goes well beyond what the 1st Amendment
> > would allow, which trumps both libel *and*
> > copyright law.

> Not unless the judge changes his mind or is
> overridden by a higher ranking judge.

Whether the ruling is ultimately changed or overturned is irrelevant to whether the ruling itself violates the Constitution. As it stands right now, the judge's order is a violation of the 1st Amendment and the 200+ years of constitutional jurisprudence illumunating it.

If a judge ruled tomorrow that defendants in his court are no longer entitled to lawyers and the cops no longer need warrants to enter and search private homes, that would be in direct violation of the Constituion as. The judge doesn't need to change his mind or be overruled in order for the violation of the Constitution to exist.
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Anonymous Coward, 30 Dec 2009 @ 7:45am

Re: Re: Sorry Mike
"The H1B *requires* recipients to be paid the equivalent wage of a US citizen holding the same job."

While I think this is good policy, unfortunately, this is not how economics works. Entering more people into the labor market will drive wages down both for US citizens and for H1B recipients.
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Anonymous Coward, 30 Dec 2009 @ 7:54am

Re: Re: Re: Bill of Rights
As it stands right now, the judge's order is a violation of the 1st Amendment and the 200+ years of constitutional jurisprudence illumunating it.

Not until a judge with the authority to do so says so. And that isn't you, now is it?

If a judge ruled tomorrow that defendants in his court are no longer entitled to lawyers and the cops no longer need warrants to enter and search private homes, that would be in direct violation of the Constituion as.

So, you're saying even the Supreme Court doesn't have the authority to interpret the constitution? I guess it's all up to you then, huh? Interesting, but I think you're full of yourself.
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Anonymous Coward, 30 Dec 2009 @ 7:58am

Re: Re: Re: Re: Bill of Rights
"Not until a judge with the authority to do so says so."

Because an infallible judge can never misinterpret the law just because their decisions are binding.
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jgo, 30 Dec 2009 @ 10:02am

Surplus of US citizen STEM workers
Studies by researchers from Computing Research Association (CRA), Duke, Georgetown University, Harvard, RAND Corporation, Rochester Institute of Technology, Rutgers, Alfred P. Sloan Foundation, Stanford, UC Davis, UPenn Wharton School, and Urban Institute have reported that we have continually been producing far more US citizen STEM (science, tech, engineering, math) workers than we've been employing in these fields.
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Almost Anonymous (profile), 30 Dec 2009 @ 10:08am

Re: Re: Sorry Mike
"""
Again, get rid of the abuses, not the program.
"""

Mmmm, Mike, I just can't agree with you on this one. I can think of no practical way to curtail those kinds of abuses. I'm not saying get rid of the programs necessarily, but if you accept/believe we need them, then you also accept the abuses that go along with it.
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Alias, 30 Dec 2009 @ 1:30pm

More than just
as i was reading the article in computerworld, where it was first reported, i came across this quote by the company in questions lawyer,

"Patrick Papalia, an attorney representing Apex, said that the company has already identified an employee who left the initial comment. But he said the issue goes well beyond the agreement and involves threatening and racist comments against company officials, as well as ongoing allegations that it is engaging in illegal activities"

I've occasionally glanced through those websites, and am not surprised by the allegations made by the lawyer, i think the websites were shut for other reasons as well
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Norm Matloff, 30 Dec 2009 @ 2:04pm

H-1B
Hi, I'm Norm Matloff, a computer science professor whose work was cited on H-1B was cited in one of the comments. I'll make a couple of quick points here, and hope that you will want to pursue the details with me in e-mail.

It's wrong of you to dismiss most critics of H-1B as racist. I've been involved in this for over 15 years, and while there are fringe characters in any movement who are often very vocal, they are the exceptions. The vast majority of people critical of H-1B have no racist motive, and many are themselves non-Anglo and/or nonnative.

The studies showing how many jobs there are in immigrant-founded firms tell us nothing of relevance in this debate. The relevant question is whether immigration has produced a NET increase in tech jobs, and no study has shown this. The rate of tech entrepreneurship per capita for immigrants have been similar to that of natives, so we have no more jobs than if the natives had been in the industry instead of immigrants.

Similarly, the rate of patenting among immigrants, adjusting for education etc., is LOWER than those of natives. Any culture has its comparative advantage, and ours is creativity, a point made by all major Asian governments. Immigration has caused a net decrease in patenting compared to what we would have if the natives had been in the industry instead of immigrants.

Which brings me to the displacement issue. I've been consistently on record as strongly supporting the immigration of "the best and the brightest," but as I've shown in my research, only a small percentage of H-1Bs are in that league. On the contrary, immigration has caused us to lose our own best and brightest, an internal brain drain. This occurs both directly by displacement and indirectly by holding salaries down, so that bright young people find law degrees and MBAs to be far more lucrative than software development. Your statement that there is no down side to tech immigration is way off the mark.

Finally, while you concede that there are abuses of H-1B, you seem to think that these are rare, and fixable by better enforcement of the law. Actually, H-1B is used for cheap labor across the board, including by the big mainstream firms, and is usually done in full compliance with the law, which is riddled with loopholes.

My H-1B Web page (not the one cited in one comment) is
http://heather.cs.ucdavis.edu/h1b.html
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Ronald J Riley (profile), 30 Dec 2009 @ 3:51pm

Re: Re: H-1B not needed
Mike,

Big business buys academics all the time. The academic then promotes their sponsor's agenda. What makes you think that the H-1B issue is any different?
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The Anti-Mike (profile), 30 Dec 2009 @ 8:20pm

Re: H-1B
Immigration has caused a net decrease in patenting compared to what we would have if the natives had been in the industry instead of immigrants.

I think I know why Mike likes H1B so much... less patents!
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Michael, 31 Dec 2009 @ 3:46am

Re: H-1B
"Immigration has caused a net decrease in patenting"

More patents has been shown to not be an indicator of innovation or economic growth.

I think the H-1B program is working itself out very quickly. Although early on it seemed to bring a lot of - less qualified - employees here, companies seem to be figuring that out. The unqualified people are being discovered rather quickly these days.
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btr1701 (profile), 31 Dec 2009 @ 1:07pm

Re: Re: Re: Re: Bill of Rights
> Not until a judge with the authority to do so says so. And that
> isn't you, now is it?

Judges aren't magical beings. If the Constitution says the government can't do X and some judge says "the government can do X", then those statements are mutually exclusive and the judge's ruling is in violation of what the Constitution requires.

> So, you're saying even the Supreme Court doesn't have the
> authority to interpret the constitution?

I'm not sure how you got from what I wrote to your stated conclusion. The Supreme Court can interpret anything it likes. That doesn't mean it's infallible, however.

Once upon a time the Supreme Court ruled that slavery was constitutional. They were wrong then and they can easily be wrong again in the future.

[Interestingly enough, the power to the Supreme Court claims for itself to void an act of Congress as unconstitutional is found nowhere in the actual Constitution. The Court was never given the power to do that by the Founders. It just assumed that power onto itself in the Marbury case.]
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JC Dill, 1 Jan 2010 @ 7:43pm

Contracts are not works of art
Contract are not works of art. Contract terms are merely a list of the items that are agreed to. They are no more a work of art than a shopping list (a list of items to purchase). I was told by an IP attorney that it is perfectly OK to copy wholesale from another company's contract, that it wasn't a violation of copyright. What you can't "just copy" are artful aspects often found in a contract FORM, the layout, font choices, etc. But the text of the contract terms is not covered by copyright.

Otherwise someone could come up with a new clause and re-write each sentence as many ways as possible and make it impossible for their competitors to implement the TERMS of the clause in any of their contracts.

Further, it's perfectly reasonable to copy a contract wholesale as fair use if the purpose is for discussion and criticism.
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STUNNED but not surprised, 10 Jan 2010 @ 8:27am

OUTRAGEOUS!
WTF? putting aside who is 'right' or 'wrong' (too limiting),
why is this corporation and the judge they bought
allowed to shut down POLITICAL SPEECH?

This is absolutely stunning and needs more exposure
online and in the media!!!!!

Thank you.
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idic5, 27 Jul 2013 @ 8:25pm

H-1B guestworker not= immigrant
People assign immigrant status to H-1b workers all the time. THE current immigrations bill (2013) has H-1b policy in it. 99 pct of every article I read about this bill does not bring the H-1b guestworker increases.

Bernie Sanders says around 6 - 8 pct of H-1b visas are used in the way that the visa was intended - to provide companies with labor and skills it cannot find in america. the rest is abuse. The limits s/b DECREASED , not increased.
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