I hope this is satire, because it makes relatively little sense. For one thing, while there is some truth to the idea that the younger generation will have to deal with the consequences longer, only some. A 50 or even 60 year can expect to live for several more decades reasonably and will likely see a lot of the consequences foisted upon them by the results of the votes.
Moreover, while it is true that giving the younger generation more power would help hasten certain good social reform, it is also likely to bring in many short sighted policies that would have been blocked wtih greater wisedom.
Sadly, this article makes a number of excellent points. A company, especially a publicly traded company that is accountable to many people, needs to make rational decisions. Those rational decisions often involve settling even when the claim is weak.
Now, in a larger sense this may make a point that our patent system needs to be reformed to make it more difficult for patent trolls to function and to ensure that fewer low quality patents are issued. But that is a job for Congress and does not factor into the strategic decision that an executive facing a patent lawsuit must make.
You seem to be quite against the idea, but this seems to be precisely what ArsTechnica is doing ( http://arstechnica.com/subscriptions/ ) and it seems to be working out relatively well for them, and at least conceptually I would say it makes sense to me.
TransSiberian Orchestra (TSO) is one of the few bands that puts out actual albums where the whole is greater than the sum of the parts, and I have listened to their albums in order start to finish as a cohesive experience. And yet, even for them I tend to have certain tracks that I will also listen to in isolation.
For most other bands, there is no reason to listen in order and the album is a compilation of largely unrelated songs. for them, I don't even bother ever listening to the album as a whole.
My point, is the band and fans both are best served by permitting the fans to listen as they chose. This is true even if you are putting out real albums, and if you are putting out compilations of songs then you cannot even claim an artistic reason to encourage fans to listen to the album.
This is just my personal opinion, but I do not see the phone games for a couple of bucks competing with a full scale production game on, say, a PS3.
I buy some of both and I've never chosen one of the other or said I won't buy the PS3 game because I laid down a dollar for a game I play while waitin for the checkout counter. They serve different entertainment purposes for me.
Now, I do see the $1 games competing with things like the nintendo DS, and I recently questioned whether I should buy a Ipod touch or the DS for my son when preparing for a long trip, but that is somewhat different.
"What gives CA precedent over other states where donations originated from?"
California has precedent because that is where the plaintiff filed suit. I am in no way a lawyer, but at least initially the plaintiff is "the master of the claim." and may file suit in any place where jurisdiction is proper. That does not meant that that place is the only one where they could have filed.
"All I can see is that they want CA because it works in their favor."
It sounds like you are assuming that jurisdiction must be proper in one and only one place, but that is not true. Again, I am not a lawyer, but most of the time jurisdiction may be proper in multiple places. It is then up to the plaintiff to decide which of those possible jurisdiction to file the case in.
If jurisdiction is being challenged as improper, then the key question is the "minimum contacts" analysis to determine if it is proper. Even if it is proper, the defendant may attempt to show that it is more appropriate through a challenge such as forum non conviens. However, when such a transfer (rather than dismissal for lack of jurisdiction) is requested the court has wide discretion and will often give the benefit of the doubt to the plaintiff.
I am not a lawyer, but where he received money from is quite relevant in determining proper jurisdiction.
The landmark case that set the initial precedent was International Shoe Co. v. Washington, 326 U.S. 310 (1945). This has been interpreted by cases such as Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). The precise test is still somewhat open to interpretation, but the basic idea is that if you direct your business at a state then you are availing yourself of that state's laws and therefore it is at least consistent with the Constitution for that state (or a federal court located in that state) to exercise jurisdiction.
Again I am not a lawyer, but it seems whether or not he solicited and received donations from California in connection with his work on the PS3 is very relevant to seeing if jurisdiction may be exercised there. Of course, he may still try to have it removed from that court under doctrines such as forum non conviens even if jurisdiction may be properly exercised there.
I am not a lawyer, but generally, implied terms are extremely common. For example, every contract generally has an implied term of "good faith" if it is not made explicit. The UCC in particular tends to add numerous implied to terms to contracts for the sales of goods, unless those terms are overridden explicitly (in fact, a few of them can't be overridden.) Courts will also create implied terms when they must to cover situations that were not contemplated by the parties at the time the contract was created, such implied terms often do things like assign the risk of the unforseen event between the parties.
Again, I am not an expert, but there are a number of factors courts tend to consider when deciding whether or not something is an implied term such as whether it is necessary to effectuate the explicit terms of the contract and the past dealings of the parties with each other, and also what is common in that field of business. Basically, the same concepts they use in interpreting a contract since adding implied terms really is very much like interpretation.
"We need to understand that technology is nothing without content and content would be nothing without technology."
I must respectfully disagree with the first part of this statement, though I agree with the bulk of your post.
Technology without content remains an enabler and a tool to create, analyze, communicate, and more. Now, technology without content would be limited and reduced, but still very substantial.
And if we take your "content" to mean "professionally produced content" then my disagreement becomes even stronger. A large portion of the best content I look it is produced by dedicated amateurs, many of whom have no monetary motivation at all, rather than by professionals.
"Even so, "fair use" literally screams out as an affirmative defense that would almost certainly carry the day by a motion to dismiss the complaint at the pleading stage."
I am not a lawyer, but I do not think fair use would let you sustain a motion to dismiss. Motions to dismiss normally arise due to things such as lack of jurisdiction or failure to state a claim upon which relief may be granted.
An affirmative defense is a matter upon which judgment is granted, so I think at best a summary judgment (or judgment as a matter of law) could be gained. But for summary judgment to carry the day, there would have to be no questions of material fact. That may be the case here, but I do not think there is enough information to determine that.
So, I agree that fair use would almost certainly work as a defense, but the newspapers could not use it for dismissal. They would at least have to go to the point where a motion for summary judgment could be filed (after the discovery phase) and might very well have to go through a full trial.
"But this wasn't a situation where the image was taken by the media and used without permission. It was handed to them by the family who, it turns out, didn't have the rights but that shouldn't be held against them or the media. "
As the law stands now, you are quite correct, and this is the precise reason I am so leary of ever hiring a professional photographer service.
The more interesting question is what the law ought to say. If I have paid for your services in creating it, been a subject of the photograph, and had at least artistic veto power over the end product, and perhaps directly contributed to the artistic decision making process as a whole, then it seems that copyright should either not exist or should vest in me.
I greatly respect the work of photographers that create true works of art, such as Ansel Adams. I strongly support their ability to copyright their work. But for those, they often work hard to preplan a shot, often have great control of the setting, lighting, props, any models involved (and pay them, rather than being paid by them) to create those works of art.
I think the average portrait studio type of shoot for the average family does not have enough artistic elements so that it ought to qualify for copyright, and that if it does it should vest in the family who both commissioned and contributed to the creation of the picture. (Note: This is not to denigrate at all the skills of family portrait photographers, a good one will take much better pictures than a bad one. But it seems to me that those skills are much more technical than artistic and used far more to achieve the family's vision than the photographers.)
I tend to tear them up and use them along with kindling to light the firewood when my kids want to roast marshmellows, so they aren't totally worthless.
I am afraid that this is very different from a sit in. In many of the cases, the participants in a sit-in a breaking the law. But there, they do so openly with their identities plain and the risk of being arrested obvious and immediate. To quote Martin Luther King in his Letter from a Birmingham Jail, "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law." At least many who have participated in sit ins over the years did precisely that, standing (or sitting) in their own physical person, knowingly risking the legal consequences of their actions.
I do not see that here. This is a situation where I suspect the vast majority of people initiated their part of this, and then moved on to other things in the comfort of their own home. I suspect many of them did not realize that their IP addresses were not protected (and likely some who did took other measures to protect it). They did not even subject themselves to the discomfort of actually having to sit in somewhere away from their own home, much less knowingly and willingly risk the legal consequences.
(I will acknowledge that here they may be charged under harsh anti-hacking laws with long sentences where most participants in sit-ins faced misdemeanors along the lines of disturbing the peace or, in the particular case that led to MLK's letter violating a court order resulting in contempt of court. But I do not think this invalides my point.)
On the post: Should Young People Have Their Votes Count More?
Moreover, while it is true that giving the younger generation more power would help hasten certain good social reform, it is also likely to bring in many short sighted policies that would have been blocked wtih greater wisedom.
On the post: Settling Lawsuits Sometimes Makes Sense. Period.
He's right
Now, in a larger sense this may make a point that our patent system needs to be reformed to make it more difficult for patent trolls to function and to ensure that fewer low quality patents are issued. But that is a job for Congress and does not factor into the strategic decision that an executive facing a patent lawsuit must make.
On the post: Why Every News Site Should Focus On Being First Class All The Time
On the post: AC/DC Says Their Songs Will Never Be Available For Download; Rest Of Internet Laughs
For most other bands, there is no reason to listen in order and the album is a compilation of largely unrelated songs. for them, I don't even bother ever listening to the album as a whole.
My point, is the band and fans both are best served by permitting the fans to listen as they chose. This is true even if you are putting out real albums, and if you are putting out compilations of songs then you cannot even claim an artistic reason to encourage fans to listen to the album.
On the post: More Video Game Makers Fear The Free Market And Don't Know How To Compete
I buy some of both and I've never chosen one of the other or said I won't buy the PS3 game because I laid down a dollar for a game I play while waitin for the checkout counter. They serve different entertainment purposes for me.
Now, I do see the $1 games competing with things like the nintendo DS, and I recently questioned whether I should buy a Ipod touch or the DS for my son when preparing for a long trip, but that is somewhat different.
On the post: Judge Lets Sony Go After PS3 Jailbreaker's PayPal Account
Re: Re: Jurisdiction
California has precedent because that is where the plaintiff filed suit. I am in no way a lawyer, but at least initially the plaintiff is "the master of the claim." and may file suit in any place where jurisdiction is proper. That does not meant that that place is the only one where they could have filed.
"All I can see is that they want CA because it works in their favor."
Yes, precisely, that is what "forum shopping" is.
On the post: Judge Lets Sony Go After PS3 Jailbreaker's PayPal Account
Re: Re: Jurisdiction
If jurisdiction is being challenged as improper, then the key question is the "minimum contacts" analysis to determine if it is proper. Even if it is proper, the defendant may attempt to show that it is more appropriate through a challenge such as forum non conviens. However, when such a transfer (rather than dismissal for lack of jurisdiction) is requested the court has wide discretion and will often give the benefit of the doubt to the plaintiff.
On the post: Judge Lets Sony Go After PS3 Jailbreaker's PayPal Account
Jurisdiction
The landmark case that set the initial precedent was International Shoe Co. v. Washington, 326 U.S. 310 (1945). This has been interpreted by cases such as Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). The precise test is still somewhat open to interpretation, but the basic idea is that if you direct your business at a state then you are availing yourself of that state's laws and therefore it is at least consistent with the Constitution for that state (or a federal court located in that state) to exercise jurisdiction.
Again I am not a lawyer, but it seems whether or not he solicited and received donations from California in connection with his work on the PS3 is very relevant to seeing if jurisdiction may be exercised there. Of course, he may still try to have it removed from that court under doctrines such as forum non conviens even if jurisdiction may be properly exercised there.
On the post: Questions About Copyright On Stormtrooper Costume Hit UK Supreme Court
Implied Terms
Again, I am not an expert, but there are a number of factors courts tend to consider when deciding whether or not something is an implied term such as whether it is necessary to effectuate the explicit terms of the contract and the past dealings of the parties with each other, and also what is common in that field of business. Basically, the same concepts they use in interpreting a contract since adding implied terms really is very much like interpretation.
On the post: Stop Thinking That Tech & Content Are Fighting Each Other
Technology nothing without content?
I must respectfully disagree with the first part of this statement, though I agree with the bulk of your post.
Technology without content remains an enabler and a tool to create, analyze, communicate, and more. Now, technology without content would be limited and reduced, but still very substantial.
And if we take your "content" to mean "professionally produced content" then my disagreement becomes even stronger. A large portion of the best content I look it is produced by dedicated amateurs, many of whom have no monetary motivation at all, rather than by professionals.
On the post: Photographer Who Took Family Portrait Of Girl Shot In Tucson Suing Media For Using The Photo
Re: Re: Work for Hire
I am not a lawyer, but I do not think fair use would let you sustain a motion to dismiss. Motions to dismiss normally arise due to things such as lack of jurisdiction or failure to state a claim upon which relief may be granted.
An affirmative defense is a matter upon which judgment is granted, so I think at best a summary judgment (or judgment as a matter of law) could be gained. But for summary judgment to carry the day, there would have to be no questions of material fact. That may be the case here, but I do not think there is enough information to determine that.
So, I agree that fair use would almost certainly work as a defense, but the newspapers could not use it for dismissal. They would at least have to go to the point where a motion for summary judgment could be filed (after the discovery phase) and might very well have to go through a full trial.
On the post: Photographer Who Took Family Portrait Of Girl Shot In Tucson Suing Media For Using The Photo
Re: Normally, I'd support the photographer
As the law stands now, you are quite correct, and this is the precise reason I am so leary of ever hiring a professional photographer service.
The more interesting question is what the law ought to say. If I have paid for your services in creating it, been a subject of the photograph, and had at least artistic veto power over the end product, and perhaps directly contributed to the artistic decision making process as a whole, then it seems that copyright should either not exist or should vest in me.
I greatly respect the work of photographers that create true works of art, such as Ansel Adams. I strongly support their ability to copyright their work. But for those, they often work hard to preplan a shot, often have great control of the setting, lighting, props, any models involved (and pay them, rather than being paid by them) to create those works of art.
I think the average portrait studio type of shoot for the average family does not have enough artistic elements so that it ought to qualify for copyright, and that if it does it should vest in the family who both commissioned and contributed to the creation of the picture. (Note: This is not to denigrate at all the skills of family portrait photographers, a good one will take much better pictures than a bad one. But it seems to me that those skills are much more technical than artistic and used far more to achieve the family's vision than the photographers.)
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Firewood
On the post: Government Putting Quite A Lot Of Effort Into Tracking Down 'Anonymous'
This is different from a sit in
I do not see that here. This is a situation where I suspect the vast majority of people initiated their part of this, and then moved on to other things in the comfort of their own home. I suspect many of them did not realize that their IP addresses were not protected (and likely some who did took other measures to protect it). They did not even subject themselves to the discomfort of actually having to sit in somewhere away from their own home, much less knowingly and willingly risk the legal consequences.
(I will acknowledge that here they may be charged under harsh anti-hacking laws with long sentences where most participants in sit-ins faced misdemeanors along the lines of disturbing the peace or, in the particular case that led to MLK's letter violating a court order resulting in contempt of court. But I do not think this invalides my point.)
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