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Comment: Re:copyright length insanity (Score 1) 395

by webmaestro (#29153657) Attached to: New York MTA Asserts Copyright Over Schedule

I don't think you can really say that copyright laws have been "created almost entirely to meet corporate interests." Perhaps they have evolved over time to cater to the interests of businesses, but copyright was envisioned in Article I, Section 8, Clause 8 of the Constitution (the Copyright Clause); long before the modern notions of a corporation (i.e., ones not chartered by a sovereign) were in existence in the US. Something cannot be created to meet the interests of something else that did not exist at the time.

You also claim that one must acknowledge that the current system is deeply flawed before we can make any progress to a better system. But is the current system only one point on potential copyright spectrum. The discussion must not only take into consideration the public, but the authors and even the interests of corporations, which are ultimately an abstraction of the individual shareholders. Your perspective might be that the system is flawed, and we need to throw out the current system and start over, but I think many would disagree (a good portion of whom were congressmen or senators that wrote the current copyright laws). Any discussion must take in to account the interests of all parties, not just those who "acknowledge that current copyright laws...are completely out of whack."

Media

+ - Indecency on Television after FCC v. Fox->

Submitted by webmaestro
webmaestro (323340) writes "Professor Mary-Rose Papandrea, a professor at Boston College Law School, writes an interesting and very informative piece about the recently decided Supreme Court case FCC v. Fox. In this case the Supreme Court upheld the FCC's regulation of "fleeting expletives" — bad words that are uttered only once on TV — but did so on the grounds that the FCC's change in policy was not "arbitrary and capricious." The court declined to analyze the case under the First Amendment, which it will very likely have to do when this issue or even this very case comes up again. Prof. Papandrea looks at the problems with the FCC's regulation in this case, and how there are many indications that the prior case on this subject, FCC v. Pacifica, may be overturned. Ultimately, this case could have very large implications on the extent the FCC can regulate indecent speech on television and radio. If Prof. Papandrea is correct, the phrase "you can't say that on TV" may soon become unnecessary."
Link to Original Source

Comment: Re:No show == guilty? (Score 1) 182

by webmaestro (#27742675) Attached to: $74k Judgment Against Craigslist Prankster

Correct. This is not that big of a deal. Wish them luck in collecting this money.

Why is that? Just because the guy didn't show up because he was in a different state doesn't mean that they won't be able to collect. The plaintiff can take this default judgment to Washington (where the defendant resides) and have it domesticated and be able to enforce it just as if the suit was originally brought there. This is mandated by the Full Faith and Credit Clause of the Constitution. Also, he won't be able to relitigate the case in Washington because of res judicata or collateral estoppel.

His best chance of getting out of this is a collateral attack on the Illinois court's personal jurisdiction. This would actually be a pretty good case based on his letter to the court and the state of flux that civil procedure law is in based on Internet contacts. His contacts with Illinois were pretty minor and might not meet "minimum contacts" for the federal court in Illinois to have personal jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310 (1945).

What he should have done is made a special appearance to contest the personal jurisdiction. (the appearance is "special" in that it won't subject you to personal jurisdiction by your presence in the state to contest the jurisdiction - a legal catch-22). Rather it sounds like he did a little Internet research and sent a letter to the judge instead of hiring a lawyer. I guess he thought he could try to get out cheap that way, he failed.

Comment: Re:Constitutional? (Score 1) 315

by webmaestro (#27567191) Attached to: When Politicians Tax Violent Video Games

You seem to have a good knowledge of several terms that relate to law, but unfortunately the underlying concepts elude you. There is a reason that individuals usually go to law school for three years, and have to pass a rigorous examination before being able to practice law.

First, the Commerce Clause is not a basis for taxation, that would be Article I, Section 8: "The Congress shall have power to lay and collect taxes, duties, imposts and excises..."

Second, the First Sale Doctrine is not a constitutional doctrine, but a principle from the Copyright Act that an author loses the ability to control the distribution of a copyrighted work after it is lawfully made and sold. 17 U.S.C. Sec. 109. It does not relate to taxes whatsoever.

Third, it does not matter whether the federal government has authority under one part of the constitution for its regulation if it also violates another part of the constitution. For instance, a regulation that is valid pursuant to the Commerce Clause but which also violates the First Amendment is nevertheless invalid. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Therefore even a valid tax under Art. I Sec. 8 would be invalid if its violative of the First Amendment's Free Speech Clause.

Fourth, while your description about direct and indirect taxes is mostly correct (though not actually related to the question posited), your example about what may be income, "(loans, etc.)," is wrong. A loan is not income because it comes with an offsetting obligation. See Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955) (giving the three-prong standard for what is "income" for tax purposes: (1) accession to wealth, (2) clearly realized, (3) over which the taxpayer has complete dominion). The offsetting obligation to repay the loan means its not an accession to wealth.

Finally, your statement that a state can do whatever it wants as long as it doesn't violate its own constitution is clearly erroneous. State action as well as legislation are invalid or illegal if it violates the Federal Constitution. Often if a state actor violates the constitution you can sue for money damages under 42 U.S.C. Sec. 1983. Examples of state legislation being invalid would be, for instance, if a state and federal regulation were inconsistent. The state regulation would be preempted under the Supremacy Clause. See, e.g., Edgar v. Mite Corporation, 457 U.S. 624 (1982). Also, a state law that would violate the federal constitution is just as invalid as if the federal government had passed it. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas sodomy law as violative of the Due Process Clause of the Fourteenth Amendment). An even better example is Romer v. Evans, 517 U.S. 620 (1996) in which the Supreme Court struck down part of the Constitution of the State of Colorado as violating the Due Process Clause of the Fourteenth Amendment. If part of a state constitution can be unconstitutional under the federal Constitution, a fortiori any state law passed pursuant thereto could also be held unconstitutional.

While I personally applaud any attempt to educate people about the law, this is not the way to do it. Giving people misleading or just plain wrong information can make them worse off than if they never had the information in the first place.

Comment: Re:Constitutional? (Score 1) 315

by webmaestro (#27566999) Attached to: When Politicians Tax Violent Video Games

I am all but certain (as certain as you can be when it comes to the Supreme Court deciding things) that a tax like this would be held unconstitutional as a content-based restriction on speech in violation of the First Amendment. The whole distinction between direct or indirect tax is of no consequence as this isn't a question of the Sixteenth Amendment or Article I Sec. 2.

Generally, the government can't treat certain speech differently than others âoebecause of its message, its ideas, its subject matter, or its content." Police Depâ(TM)t v. Mosley, 408 U.S. 92, 95 (1972). This is of course only a general rule, and there are exceptions. Obscenity and "true threats" are obvious examples because they are not considered protected by the First Amendment at all. Miller v. California, 413 U.S. 15 (1973); United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997). Other forms of speech, such as child pornography can also be restricted because of the harm to children that they cause, not necessarily its affect on the speaker or receiver. New York v. Ferber, 458 U.S. 747 (1982)

However the court has never held that violent speech receives anythings less than full protection of the First Amendment. Therefore any restriction that is based only upon the content of the speech is presumed invalid unless the government could meet what is referred to as strict scrutiny. To pass strict scrutiny the government would have to demonstrate that there is a compelling governmental interest, that the law is narrowly tailored to achieve the interest, and that it is the least restrictive means of achieving that interest. It is highly unlikely that taxing of violent speech could be considered narrowly tailored or the least restrictive means to achieve any legitimate government interest relating to violent video games, if there even exists a legitimate compelling government interest in burdening adults in obtaining violent video games.

Basically, this is no more constitutional than if a state were to try to tax books that talked about homosexuality or magazines that had articles that condemned republicans.

Comment: Re:Jurisdiction? (Score 1) 363

by webmaestro (#27380529) Attached to: UK Libel Law Is a Global Threat To Web Free Speech

But this has nothing to do with extradition, it's not about criminal cases at all. It's all about UK civil judgments for money damages which can be enforced in the US if you have "minimum contacts" with the UK. And these minimum contacts don't have to be physical, so you can never have set foot in the UK nor have any UK assets but still have to pay up.

Comment: Re:Why should I care about foreign court orders? (Score 1) 363

by webmaestro (#27380499) Attached to: UK Libel Law Is a Global Threat To Web Free Speech

Once you have a judgment in a foreign country they can try to bring that case to a US court to enforce it against you here. Most states have passed a version of the Uniform Foreign Money Judgments Recognition Act - which, as its title implies, allows people to enforce (called domesticating) foreign judgments in the States.

In order for a foreign judgment to be enforced the foreign court has to have, among other things, jurisdiction. But just because you've never gone to the UK doesn't mean they don't have jurisdiction. In general, to be subject to personal jurisdiction, you must have a sufficient level of personal or business contacts with the state in which the court sits that you could reasonably expect to be sued there. So if you directed speech to the UK the US court may find that you have sufficient contacts for specific personal jurisdiction, and would then enforce the UK judgment against your US assets.

Comment: Re:Why should I care about foreign court orders? (Score 5, Informative) 363

by webmaestro (#27380491) Attached to: UK Libel Law Is a Global Threat To Web Free Speech

UK judgments, and really those from any country, can be enforced against US citizens, even those that have never been to that country and have no assets anywhere other than in the US. Now a US court will require that the party trying to enforce the foreign judgment demonstrate that you had sufficient contacts with the foreign state to warrant personal jurisdiction, but directing speech to people in that country may be enough to enable the other party to enforce that judgment in the US. Its not just "oh, I don't live in the UK and have never been there, so I can't be sued there." Nothing is further from the truth. That is why is is a global threat to free speech.

Comment: Re:If this is a public school it's obvious (Score 1) 931

by webmaestro (#26596537) Attached to: A Teacher Asking Students To Destroy Notes?

Public schools, if this even was a public school, it could be private after all, are state government institutions, not federal. This is an important distinction because only works of the federal government are in the public domain, not works of state governments. See 17 USC Sec. 105 - "Copyright protection under this title is not available for any work of the United States Government..." Works of state governments are entitled to copyright protection just like work of individuals or corporations.

Also, even if the notes were somehow in violation of copyright law there is no available self-help remedy in copyright. Meaning you're not allowed to go and take away infringing material from someone else, you have to rely on the courts to do that. Any time you try to take anything from anyone else by force - even if it's your property - that is a crime and a tort - like O.J.'s little escapade in Las Vegas.

Comment: Re:Mugging is a civil offense? (Score 1) 931

by webmaestro (#26596485) Attached to: A Teacher Asking Students To Destroy Notes?

Well it's not called theft when it is a civil matter, it's either trespass to chattels or conversion. If the item hasn't been destroyed and you want it back it is trespass to chattels where you can also get paid for depriving you of the use of your property while it was taken. If the teacher took it and burned it or threw it away you would sue for conversion. For conversion you would be entitled to the value of the item taken. You may also be able to get punitive damages for either of those, as they are intentional torts.

Comment: Re:The school owns it. (Score 1) 931

by webmaestro (#26596427) Attached to: A Teacher Asking Students To Destroy Notes?

Actually there is a big difference between those people. First of all we don't know that he even goes to a public university, so therefore the teacher may not be a state employee. The other difference is if it was a public school they would be a state employee, not a federal employee like a Congressman or president. The Copyright act provides that works of the federal government are in the public domain, but says nothing about state employees. Therefore states do own the copyright of the works of their employees.

Never appeal to a man's "better nature." He may not have one. Invoking his self-interest gives you more leverage. -- Lazarus Long

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