Nice little fallacious argument you have going there.
Let me see if I can accurately restate what you are implying: 'Stopping copyright infringement isn't nefarious, so any means of stopping copyright infringement is OK.'
Instead of stopping with authoritarian surveillance of citizens, and unconstitutional search and seizure, why don't you just move right ahead with more vigorous methods -- something like... a day in jail for every suspected infringing file on your computer.
One could go on from here with any number of ridiculous impositions upon the populace and draconian punishments. Apparently by your simplistic argument, they would all be fine, so long as one is pursuing the unlimited goal of halting infringement.
Probably the most nefarious thing about COICA, as it has been proposed, is that the government creates incentives and liability protections to encourage corporate entities to search the content of communication between other private parties -- without probable cause that a crime has been committed.
How could it be permissible for the government to allow, much less encourage a private entity to do what the government itself could not constitutionally do.
Note that this is all supposedly in support of laws that are, as I know you are well aware, per Article I, Section 8, Clause 8; to promote the arts and sciences. There is absolutely nothing written there about those concepts that have become the raison d'etre for rivers of lawyers-- "property" and "theft"
Edward Bernays, "the father of public relations", became [in]famous for his techniques for manipulation of the public starting in the 1920's, but I had no idea that he was Freud's nephew till I clicked on your link.
Thanks.
The courts, including SCOTUS, continue to punt on dealing with the glaring problem which is obvious to the rest of us -- that EULAs do not in practice function in the same way as normal contracts do, even though in theory a EULA should represent a valid contract.
Its somewhat encouraging that, as noted during the past year on TD, two of our most prominent judges -- Richard Posner and John Roberts have publicly recognized the problem. How long it will be before any actual movement on the issue occurs is anybody's guess, however. -- Let's hope its sometime before all eternity.
One can only hope that by continuing to call out examples of ridiculous EULA situations, that eventually the inherent problems in this application of contract law will get the attention they deserve in opinions of the courts.
Re: Lawyers and the truth.. Will we have ever learn
"
I bet he made a lot of brownie points with his IP clients with his blog. What is funny about this guy is that he only allowed four comments on his blog before he closed it. I wonder why?"
-- because as soon as he noticed that Terry Hart had stopped by on the 22nd of April to comment on his post, he knew that no one else in the whole wide world would have anything more knowledgeable or wise to add to the topic.
-- this sorta makes one pleasantly look back at the good old days when conflict of interest consisted of flying doctors to "educational programs" held at casino resorts in the Bahamas in order to help them "learn" when to prescribe the purple pills, as opposed to the pink and black ones.
"The theory is that that seller has a very strong reputation"
So now they've lowered the price dramatically, but after the reduction, Bordeebook still has a used copy listed for $976.98 (at least right now).
--->Meanwhile, over at Borders , you can pick up the book for $67.
Even after this hit the national news media, it seems these guys haven't figured out that customers can price compare on the internet.
At least in the future these sellers may not have to wonder how they developed a strong reputation ... as idiots.
Hint to Bordeebook: There's this thing people call "shopping"
"Your fake indignation about copyright length was debunked long ago. ... It's a smokescreen; the stuff you guys rip off is usually less than a year or two old."
Right, so you won't mind if we put copyright length back to some reasonable number where the founding fathers had it ---> 14 years?
Believe it or not, there are plenty of people who are not movie and music downloaders who think that IP law is out of control, and it isn't being used in a way that promotes its original purpose.
Explain to me again about how guaranteed royalties that extend through my entire life, and on into my great-grandchildren's life inspire me to work longer. Once I've become comfortable, then I'm not going to be motivated -- period.
You know that, and anyone who has observed human nature knows that.
"could he just put an anonymous hold on the bill..."
Ron Wyden was the main sponsor of the Senate Resolution to eliminate anonymous holds. He certainly has put holds on bills he doesn't like, but not anonymously.
"Big Pharma used to do manufacturing really well, out of necessity because the FDA regulated them. Now that's been proven to be a joke, so there's no appreciable benefit to buying Advil over ibuprofen any longer"
The reason Big Pharma "used to be", but no longer is -- good at manufacturing is due in no small part to the fact that they outsourced their manufacturing over the past couple of decades.
Many of the drug shortages we've seen have been due to production stoppage because of quality control problems in their off-shore plants.
Of course this hasn't bothered them at all because ... quite fortuitously, when there is a problem with production, supply diminishes, and then prices go up.
The drug company is happy so long as they can get the supply restored in a few months, but at a new higher market price point.
--> Poor quality with high prices is a classic characteristics of a market with insufficient competition.
In the face of this however, the FDA is not only standing by, -- as has been discussed her for the past couple of weeks, they are actually pursuing policies that further decrease competition.
The Feds want their way, and they don't care about constitutional law or about the principles upon which that law was built. The executive branch has become a law unto themselves, and the other two branches of government are standing by and letting it continue.
AC:
You make some good points about COICA, and indeed the slippery slope issue is extremely concerning to many.
I'd like to point out that when it comes to those situations where the "counterfeit" goods look and feel just like the originals, what is happening is that the company that is contracted to produce the goods is delivering the agreed upon number of goods, and then proceeding on to make a few more... what shall we call them-- "original counterfeits?" ... which they can sell on their own for additional profit. They sell the items through back alley vendors for less than the usual price, but still make a better profit margin than they do with their up-front business. This activity has been repeated in multiple countries in Asia over several decades, so its not anything new.
So in considering COICA, why again do we need a more stringent and invasive criminal law directed at private American citizens?
And why isn't this more appropriately a matter that pertains to contract law?
"Unlawful copying is no less an unlawful taking of property than garden-variety theft."
Just to be clear, that was Justice Breyer writing for himself regarding the writ of certiorari in the Grokster case. (For the non-lawyers who aren't up on their Latin here, that's the initial document the Court issued saying they would accept the case). He was not writing the opinion of the Court as this quote was not part of the Grokster decision.
-->Notice who headlines this Senate RES. 28 which establishes a rule against secret holds:--- Why its our friend Senator Wyden.
Gee, I wonder where AJ and "Anonymous" have been. Shouldn't they have been out accusing Senator Wyden of 'grandstanding' again.
When companies release public figures on development costs, those figures are quite often opaque and meaningless. Take Microsoft's claim that they spent 6 Billion dollars developing Vista.
Really??? (For something that was essentially a downgrade from XP?)
You can bet that a whole lot of extraneous stuff is rolled into the total figure. For MS, how about the cost of all that free soda in all those coolers scattered throughout the MS campus during the Vista development period.
Of course for the NYT, maybe instead of free soda it was some expensive Kool-aid
I don't see anything contradictory to the Groklaw report there.
This should be interesting, since it pits Microsoft, the BSA and the MPAA on one side versus Amazon, Dell, Intel, Motorola, IBM and Walmart among others on the opposite side.
KV Pharmaceutical is the only company currently allowed to produce and market hydroxyprogesterone for the treatment of halting premature labor. That is a monopoly.
No the FDA is not preventing anyone else from ending KV Pharmaceutical's monopoly by filing their own ANDA, but KV Pharmaceutical wouldn't have the monopoly at all were it not for FDA regulatory activity.
Let me try again to explain to you how this happened.
The FDA certainly did withdraw approval for the distribution of hydroxyprogesterone in 2000.
In 2006, the FDA issued a determination that the withdrawal had been for non-safety reasons, and that therefore they would allow an ANDA.
In the period since that time, the FDA has forced compounding pharmacies from the market for this drug. Compounding pharmacies generally rarely advertise their services to physicians, and definitely not to patients. They produce the compounds on a case by case basis at the request of physician. Nonetheless that is sufficient to provide an alternative source if the price of a drug is deemed exorbitant. It is the FDA's act of preventing the compounding pharmacies from selling hydroxyprogesterone that allows the KV Pharmaceutical to enjoy monopoly market leverage needed to charge $30,000 for a treatment regimen.
Sure anyone else can submit an ANDA for this drug, because KV Pharmaceutical doesn't have a patent, but that doesn't mean there isn't a regulatory monopoly at this moment. You seem to be equating monopoly with patent protection. I am telling you there are other paths to monopoly.
You should realize that filing an ANDA isn't necessarily a trivial endeavor which will be automatically be approved in a very short time. Testing and verification of results is still required and then paperwork must still be presented and committees must review it.
Observe that it took 5 years from the time that the FDA issued its determination that it would allow an ANDA until the first ANDA was approved this year.
At this point, there is no telling how long it will be till the next one is approved, but until it does there is no competition for KV Pharmaceutical.
That is the definition of a monopoly
The guaifenesin issue predates the 2006 initiative on tightening the regulation of Unapproved Drugs. The FDA moved against guaifenesin manufacturers in 2002. Adams Labs came to the FDA and offered to do detailed testing of an existing drug, but in a new sustained release product -- Mucinex. Prior to that time, guaifenesin had been primarily sold as a generic immediate release drug. In 2002, virtually all guaifenesin, except Mucinex, disappeared from the market overnight. After a couple of years, immediate release guaifenesin reappeared in the US market, and I don't know the details surrounding the FDA's regulation of that return to market.
What I do know is that when generic guaifenesin disappeared, Mucinex was sold at about 4X the cost of the preceding generic products.
On the post: Senator Wyden Warns That Domain Seizures And COICA Undermine Internet Freedom
Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
Let me see if I can accurately restate what you are implying: 'Stopping copyright infringement isn't nefarious, so any means of stopping copyright infringement is OK.'
Instead of stopping with authoritarian surveillance of citizens, and unconstitutional search and seizure, why don't you just move right ahead with more vigorous methods -- something like... a day in jail for every suspected infringing file on your computer.
One could go on from here with any number of ridiculous impositions upon the populace and draconian punishments. Apparently by your simplistic argument, they would all be fine, so long as one is pursuing the unlimited goal of halting infringement.
Probably the most nefarious thing about COICA, as it has been proposed, is that the government creates incentives and liability protections to encourage corporate entities to search the content of communication between other private parties -- without probable cause that a crime has been committed.
How could it be permissible for the government to allow, much less encourage a private entity to do what the government itself could not constitutionally do.
Note that this is all supposedly in support of laws that are, as I know you are well aware, per Article I, Section 8, Clause 8; to promote the arts and sciences. There is absolutely nothing written there about those concepts that have become the raison d'etre for rivers of lawyers-- "property" and "theft"
On the post: The EU Commission Tries To Defend ACTA And Fails Miserably
Re:
Thanks.
On the post: Replying To An Email Does Not Create A Contract (And Does Not Require Walmart Pay $600 Billion)
Its somewhat encouraging that, as noted during the past year on TD, two of our most prominent judges -- Richard Posner and John Roberts have publicly recognized the problem. How long it will be before any actual movement on the issue occurs is anybody's guess, however. -- Let's hope its sometime before all eternity.
One can only hope that by continuing to call out examples of ridiculous EULA situations, that eventually the inherent problems in this application of contract law will get the attention they deserve in opinions of the courts.
On the post: SWAT Team Raids Home Because Guy Had An Open Wireless Router
Re:
On the post: SWAT Team Raids Home Because Guy Had An Open Wireless Router
Re: SWAT
... too many police are[should be] grown-ups who get to use other people's [tax]money to play adolescent soldier games.
On the post: If You Can't Understand The Difference Between Money And Content, You Have No Business Commenting On Business Models
Re: Lawyers and the truth.. Will we have ever learn
-- because as soon as he noticed that Terry Hart had stopped by on the 22nd of April to comment on his post, he knew that no one else in the whole wide world would have anything more knowledgeable or wise to add to the topic.
On the post: Big Patent Holders & Big Patent Law Firms Bring Judges To Belgium For Boondoggle...
On the post: The Infinite Loop Of Algorithmic Pricing On Amazon... Or How A Book On Flies Cost $23,698,655.93
Re: Re: The Real Question is:
So now they've lowered the price dramatically, but after the reduction, Bordeebook still has a used copy listed for $976.98 (at least right now).
--->Meanwhile, over at Borders , you can pick up the book for $67.
Even after this hit the national news media, it seems these guys haven't figured out that customers can price compare on the internet.
At least in the future these sellers may not have to wonder how they developed a strong reputation ... as idiots.
Hint to Bordeebook: There's this thing people call "shopping"
On the post: Senator Wyden: I Will Do Everything In My Power To Block COICA
Re: Re: Re:
Right, so you won't mind if we put copyright length back to some reasonable number where the founding fathers had it ---> 14 years?
Believe it or not, there are plenty of people who are not movie and music downloaders who think that IP law is out of control, and it isn't being used in a way that promotes its original purpose.
Explain to me again about how guaranteed royalties that extend through my entire life, and on into my great-grandchildren's life inspire me to work longer. Once I've become comfortable, then I'm not going to be motivated -- period.
You know that, and anyone who has observed human nature knows that.
On the post: Senator Wyden: I Will Do Everything In My Power To Block COICA
Re: Well if he wants to stop it...
On the post: Desperate Drug Companies Raising Prices On Drugs Still Under Patent
Re: Re: Re:
Many of the drug shortages we've seen have been due to production stoppage because of quality control problems in their off-shore plants.
Of course this hasn't bothered them at all because ... quite fortuitously, when there is a problem with production, supply diminishes, and then prices go up.
The drug company is happy so long as they can get the supply restored in a few months, but at a new higher market price point.
--> Poor quality with high prices is a classic characteristics of a market with insufficient competition.
In the face of this however, the FDA is not only standing by, -- as has been discussed her for the past couple of weeks, they are actually pursuing policies that further decrease competition.
On the post: Feds Say It Doesn't Matter If No One Reads A Privacy Policy; It Still Means Gov't Can Have Your Info
On the post: Senator Leahy Ignores Serious First Amendment Concerns With COICA
Re: Re: Re: Time to take a little action, at least....
On the post: Senator Leahy Ignores Serious First Amendment Concerns With COICA
Re:
You make some good points about COICA, and indeed the slippery slope issue is extremely concerning to many.
I'd like to point out that when it comes to those situations where the "counterfeit" goods look and feel just like the originals, what is happening is that the company that is contracted to produce the goods is delivering the agreed upon number of goods, and then proceeding on to make a few more... what shall we call them-- "original counterfeits?" ... which they can sell on their own for additional profit. They sell the items through back alley vendors for less than the usual price, but still make a better profit margin than they do with their up-front business. This activity has been repeated in multiple countries in Asia over several decades, so its not anything new.
So in considering COICA, why again do we need a more stringent and invasive criminal law directed at private American citizens?
And why isn't this more appropriately a matter that pertains to contract law?
On the post: Senator Leahy Ignores Serious First Amendment Concerns With COICA
Re: Re: Re: Re: Re: Actually Mike......
Just to be clear, that was Justice Breyer writing for himself regarding the writ of certiorari in the Grokster case. (For the non-lawyers who aren't up on their Latin here, that's the initial document the Court issued saying they would accept the case). He was not writing the opinion of the Court as this quote was not part of the Grokster decision.
On the post: In The End, Secret Hold On Whistleblower Protection Narrowed Down To Two Senators
Re: From Senator Feinstein
Gee, I wonder where AJ and "Anonymous" have been. Shouldn't they have been out accusing Senator Wyden of 'grandstanding' again.
On the post: Good Question: How The Hell Did The NYT Spend $40 Million On That Paywall?
Re: Re: Easy...
Really??? (For something that was essentially a downgrade from XP?)
You can bet that a whole lot of extraneous stuff is rolled into the total figure. For MS, how about the cost of all that free soda in all those coolers scattered throughout the MS campus during the Vista development period.
Of course for the NYT, maybe instead of free soda it was some expensive Kool-aid
On the post: Microsoft Wants To Make It Illegal To Buy From An Overseas Company That Uses Unauthorized Software
Re:
I don't see anything contradictory to the Groklaw report there.
This should be interesting, since it pits Microsoft, the BSA and the MPAA on one side versus Amazon, Dell, Intel, Motorola, IBM and Walmart among others on the opposite side.
On the post: FDA Suddenly Bans Drugs That Have Been On The Market For Decades
Re: Re: Re: Re: Re: Re: Re: Re: Re: And!
KV Pharmaceutical is the only company currently allowed to produce and market hydroxyprogesterone for the treatment of halting premature labor. That is a monopoly.
No the FDA is not preventing anyone else from ending KV Pharmaceutical's monopoly by filing their own ANDA, but KV Pharmaceutical wouldn't have the monopoly at all were it not for FDA regulatory activity.
Let me try again to explain to you how this happened.
The FDA certainly did withdraw approval for the distribution of hydroxyprogesterone in 2000.
In 2006, the FDA issued a determination that the withdrawal had been for non-safety reasons, and that therefore they would allow an ANDA.
In the period since that time, the FDA has forced compounding pharmacies from the market for this drug. Compounding pharmacies generally rarely advertise their services to physicians, and definitely not to patients. They produce the compounds on a case by case basis at the request of physician. Nonetheless that is sufficient to provide an alternative source if the price of a drug is deemed exorbitant.
It is the FDA's act of preventing the compounding pharmacies from selling hydroxyprogesterone that allows the KV Pharmaceutical to enjoy monopoly market leverage needed to charge $30,000 for a treatment regimen.
Sure anyone else can submit an ANDA for this drug, because KV Pharmaceutical doesn't have a patent, but that doesn't mean there isn't a regulatory monopoly at this moment. You seem to be equating monopoly with patent protection. I am telling you there are other paths to monopoly.
You should realize that filing an ANDA isn't necessarily a trivial endeavor which will be automatically be approved in a very short time. Testing and verification of results is still required and then paperwork must still be presented and committees must review it.
Observe that it took 5 years from the time that the FDA issued its determination that it would allow an ANDA until the first ANDA was approved this year.
At this point, there is no telling how long it will be till the next one is approved, but until it does there is no competition for KV Pharmaceutical.
That is the definition of a monopoly
On the post: FDA Suddenly Bans Drugs That Have Been On The Market For Decades
Re: Guaifenesin, another example
What I do know is that when generic guaifenesin disappeared, Mucinex was sold at about 4X the cost of the preceding generic products.
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