>Fortunately, Sandia National Laboratories is heading an effort to develop a new set of benchmarks...

Bummer for you, Sandia. NASA already did that with the NAS Parallel Benchmarks. Here's a hint: you're funded by the US Government (just like NASA), and NPB died when the Japanese started kick US butt on NPB.

"Fingerprinting has a history of 100 years showing that it works."

Fingerprinting has a history of well over 100 years, but what we see is that it works as long as it is not seriously challenged. In its only major rigorous challenge, the 50Kx50k text, substantial problems emerged.

Keep in mind that fingerprints are never admitted into evidence, never used for identification, never even examined. Never. A finger touches a surface and it leaves a partial copy. An investigator finds it and puts powder (matrix) on it, which creates a visible picture of the copy. It is often not possible to get a good photo of the copy, so someone uses tape or other gear to get an image of the picture of the copy. Then someone photographs the tape containing the image of the picture of the copy. Then a print of the photograph of the tape of the image of the picture of the copy is created. If there are no more steps, which would be unusual, that print is what is actually used for evidence or analysis. Scientifically-minded readers will have already tallied up at least a partial list of the errors introduced at each step of the process.

And what sort of analysis is done? The best lab in the country, the FBI, uses an analysis process taught by a high school grad who washed out of college after two years. Obviously, other labs do not enjoy such high standards. What standards do they use, you may ask? None. There are no required national standards for fingerprint analysts. There are guidelines that suggest that a high school diploma should be required, but the advisory guidelines bind no one.

But at least they use a rigorous process with well-defined standards?

"The International Association for Identification assembled in its 58th annual conference... based on a three-year study by its Standardization Committee, hereby states that no valid basis exists at this time for requiring that a predetermined minimum of friction ridge [fingerprint] characteristcs must be present in two impressions in order to establish positive identification."

So no, there are no standards, which is a good thing because the relevant international body has determined that there is "no valid basis" for establishing one.

So now they say that they can get better results by looking at someone's ears? Hm... Well, the good news is that they're probably right. The bad news is that they've got a long way to go before they can say that it's any great accomplishment.

Although one does not patent code, one can patent an invention and use that patent to preclude someone from writing software that practices the invention. There are people who have released code that practices patented inventions, but that does not mean that it is not possible for a patent to cover something implemented in software. It just means that a patent grants the holder a license to sue an infringer. There are various reasons for which a patent holder may not sue an infringer, but the infringer is still infringing that patent and it makes no difference that the infringer does so with software or hardware.

Having said that, it is possible to copyright code. In fact, copyright attaches automatically. So there is a means of protecting a specific piece of code. However, one can work around copyright by writing code that does the same thing differently.

Patents aren't really concerned with censorship or speech. One way to use a patent to censor speech in a particular medium is to exercise a patent that you hold to prevents use of that medium. You won't beat that with a free speech argument.

Contributing to infringing a US patent elsewhere in the world is a peculiar idea because a US patent is exactly that - US. Once you are outside of US territory (with the interesting but inapplicable exception of space), the US patent effectively does not exist.

Internal arithmetic always includes the exact solution, but only the rarest circumstances does it actually give the exact solution. For example, an acceptable interval answer for 1/3 would be [0.33,0.34]. That interval includes the exact answer, but does not express it.

This post is long because the brief is long.

First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.

The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.

From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.

They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.

Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.

Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized ... that in our judicial system compensatory and punitive damages ... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.

Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least hundreds of thousands of dollars, the court has to consider the aggregate award of $675K. Defendant argues that because $675K is a big number, defefndant shouldn't have to pay it. Defendant conveniently overlooks the fact that if he'd stolen less, he'd have had to pay less. His argument that an aggregate of $675K is just too big a penalty means in essence that once you steal enough stuff so that the penalty is high, you can steal even more and the penalty can't go any higher. This one's pretty easy to analyze. Substitute the name "Bernard Madoff" for "Joel Tennenbaum" and see what you think of the argument. Suffice to say, it is not in society's interests to hold that increasing the magnitude of wrongdoing lowers the penalty for each wrongdoing. In non-legal terms, the aggregate damages argument is bullshit.

As defendant notes in his brief, the Supreme Court (that's the one that actually counts, in contrast to the ones that defendant cites) stated in Feltner v. Columbia that the jury decides "all issues pertinent to an award of statutory damages." When I said above that it didn't get any clearer than that, I had forgotten about this. This is the thing that doesn't get any clearer. According to the only court that matters, the jury decides. And in this case, the jury has decided. Game over.

The lawyers can read the brief. Let me break it down for the non-lawyers:

Tennenbaum admits that he deliberately broke the law. Tennenbaum's lawyer cites cases that state clearly that Congress has the authority to set policy in this area for the nation. The policy that Congress set is $750-$150K per song. You can hate Congress for doing that, but why hate RIAA for using the law for its clear purpose? Tennenbaum didn't just steal a song and cost the companies $21 as the brief states; he appropriated unto himself a license for unlimited free distribution of those songs. For that, he got tagged about $5600/song. Call the record companies and ask if you can get that same license for less. You can't.

They're not suing people for taking music. They're suiing people for mass distribution of music. There's a difference. And Tennenbaum's lawyers know it.

>The parties involved in a contract will always be material. duh.

The parties are almost never material. When I buy lunch from a restaurant, I enter into a contract to give the restaurant money in exchange for food. As long as I get food and they get cash, it is basically true that no other information is material to the transaction. I can tell them that I'm the Sultan of Brunei and as long as the "Sultan of Brunei" pays in full for his Supersized Fries, it's all good.

>False clearly implies intentional. Incorrect can be accidental.

No, false implies wrong. Intentional versus accidental goes to state of mind (mens rea, if you want to sound like a lawyer). In any event, intent is not in play here. In the example that I gave in the previous post of promising to cut taxes in exchange for your vote, I may be deliberately lying because I actually plan to raise your taxes. Despite my deliberate deception to get something of value, that valuable item being your vote, there is no crime. Your earlier statement to the effect that giving false information to get something of value is always a crime is incorrect.

>Contracts are entered by two parties in agreement If one party is falsifying its identity there is no agreement.

Incorrect. As noted in the Sultan of Brunei example above, identity of the parties need not be material.

If identify is material then giving a false identity may affect the contract. However, even in that case, it need not void the contract. For example, in a contract involving exchange of cash for goods, if I give counterfeit cash then I have violated a material term just as I would violate a material term by misstating my identify where identity is material. However, that need not void the contract. The contract may still be valid and enforceable, and it may be that I am forced to come up with real money.

Finally, in answer to your original question of how accessing the system without authorization is not unauthorized access, it actually comes down to the penalty, not the conduct. As the judge explained on page 21 of the opinion, what Drew did could well constitute unauthorized access. However, for reasons that he went on to explain, although she might be civilly liable in some other context, she could not be held criminally liable for the conduct alleged in this particular court case.

It is possible that you are not a skilled lawyer. Starting with the easy stuff first...

>Giving false info to obtain something of value is a crime. PERIOD.

Incorrect. First, I may mistakenly give false information by, for example, accidentally transposing digits in a phone number on a form. Not a crime.

Second, I may give false information that is not material to the transaction. For example, when dealing with someone who has the discretion to complete a transaction with me or someone else but not both (i.e., has a single item for sale and two potential buyers) and who is wearing an ugly hat, I may tell that person that the hat is attractive in an attempt to get the person to deal with me. Not a crime.

Third, the thing of value may not be something that the court feels like adjudicating. I man tell you that I will lower your taxes if you give me your vote, which is something of value. Not a crime.

Numerous other examples suggest themselves. Not crimes.

>She never violated the TOS. The TOS is a contract which she never agreed to (the nonexistent user she created did).

If you enter into a contract, say to buy a house, and sign the name of a non-existent person at the bottom, your imaginary friend did not just enter into a contract - you did. The signature element of a contract is satisfied by the parties giving objectively reasonable indications that they intend to enter a contract. Nodding ones head, stating agreement orally, or making a mark of whatever sort (a signature, a big red X, whatever) are all acceptable indications. Crossing your fingers behind your back, mentally adding certain reservations of which the other party is unaware, and using someone else's name are all things that do not negate the agreement to be bound by the contract.

Do points 1, 3, and 4 need arguments spelled out? Is there some basis for disagreement on, for example, point 4 as to whether the US government routinely demonstrates courage in the face of demands that it spend other people's money on unsustainable but politically popular projects? If there were some thread of support for such an argument then I guess I could go back and spell out the obvious, but it hardly seems necessary, does it?

The question about how private insurance stacks up is an interesting one, although not relevant to this discussion. Even if a particular incumbent is incompetent for a job, that does not mandate that an untested incompetent be hired for life to replace him. And never lose sight of that fact - once the government gets power, it never gives that power back. When you hire government, you're making a hire for life. Has the US government really demonstrated that level of competence and trustworthiness?

The case for private insurance essentially boils down to two elements of choice. First, there are ~1300 private insurance companies, each offering a plurality of plans. Further, the 1300 companies are regulated by the states, so the plans that they offer are influenced by state regulatory boards to serve the specific needs of people in each state. There is no possibility that the fed plan will include either that many choices or that level of individual targeting of essential features, so the fed plan will necessarily be inferior in the degree of choice and the suitability of coverage. It's possible, I suppose, that a monolithic federal bureaucracy will also have advantages over the present system, but it will necessarily have those disadvantages.

The second element of choice is whether to have coverage at all. Insurance is a negative expected-value instrument, mathematically speaking. It means that you expect to put more in than you take out. In simplest terms, it only works when most people lose money on the deal. Most readers have paid more into car insurance, home owners insurance, etc. than they'll ever get out because that's how insurance is supposed to work.

Contrast that with things that are properly within the scope of government such as building roads, bridges, and schools. Those are positive expected-value instruments because we expect to get more value from a road or a bridge than the cost to build it. There is at least an economic justification for allowing government to confiscate my money to do those things.

There are some people for whom negative expected-value instruments like insurance are worth it. They value the peace of mind, certainty, and other things more highly than they value the money they lose. That's fine. They are free to make that choice and we wouldn't want it any other way.

The way to offer those elements of choice without locking in an incompetent incumbent for life is to use private insurance.

The other thing to consider is that the roads, bridges, schools, and other things that are properly within the scope of government control (but even then not exclusive government control) is that they generally neutral in that they tend to accrue to the benefit of all and, taken as a whole, tend to spread the benefits more-or-less uniformly. Forcing all to participate in an insurance scheme that is designed to lose money would be a bad idea anyway, but here it is worse because it is not neutral. It forces me to lose money to subsidize people who make poor choices.

I understand that it also forces me to subsidize the unlucky, which is fine, but most of the money that the government will confiscate from me will go to support the obese and smokers. 70% of our health care costs are spent on five diseases, four of which are caused or substantially aggravated by lifestyle choices. I haven't made any of those choices the wrong way, so I do not favor a system of confiscating my money to support those who have. I favor a system in which people who make choices intelligently keep our money so that we may invest it in positive expected-value instruments like education.