Not as different as you might think. Depending on the firm, particular uses may vary, but in my experience (smaller firms) these aren't anything so formal as a database, they are just collections of documents. Their authorship is rarely noted, and sometimes not even a product of the firm - its common courtesy to provide templates to other lawyers and much of the language used somewhat informally standardized across the profession (there are only so many ways to articulate a boilerplate contractual term). Its also common practice to take any language you think is good in any document you see and incorporate it into your templates. So for many documents authorship is impossible to parse.
Briefs are different (and more unique), but my point isn't that lawyers commonly copy briefs verbatim - they don't. Copying a brief earns you no money - if you bill for work you don't do, that is fraud. My point is a general one about the legal profession - we rarely, if ever, draw up things from scratch, and what drafting we do is premised upon a belief that the drafting will improve the quality of representation.
Lawyer here. Practically, copying a brief verbatim is generally not that useful. The most important part of a good brief is the argument applying the law to the particular facts of your case, which will generally be different for each case. What can be usefully derived from another brief is the case cites, which are clearly not copyrightable.
Plus there is a strong public policy rationale in favor of reduced copyright protection in briefs submitted to the court. One of the foundations of our legal system is transparency in the decisions of the courts and papers considered in making those decisions. That is why things like pleadings and motions are generally public documents. Strong copyright protection in crucial components to legal process would seriously undermine this principle.
Finally, it is extremely uncommon in the law to draft documents from scratch; because there is so much to take into account when drafting, it is very risky to do so off of the top of your head. For this reasons law firms will usually have an archive of template documents which will be used as a foundation for things like drafting new contracts and pleadings. These templates are the product of many lawyers editing and tweaking over the years. Briefs are somewhat less amenable to this, but are often used as references. So much of the practice of law is basically copying and adapting preexisting documents
The security breach was of the PSN - the hackers weren't after my FF13 save games, they were after credit card numbers and other personal info from our PSN accounts.
So it appears that this is an attempt by Sony to prevent customers from suing them for their egregiously poor security measures. For this reason, the class action bar is especially troubling, as that would be the most effective way for Sony to be sued case like this, where the damages are spread out among a large number of people in small increments. And the threat of class action suits is generally the only thing keeping companies honest absent a regulatory regime (and even in a regulatory regime, class action lawsuits can be more effective for a variety of reasons, such as regulatory capture or an inadequate enforcement scheme). Although they aren't terribly effective at compensating people (except lawyers), they are still better than arbitration).
Communications (usually) involve two or more parties. I am no expert on Cali law, but generally if one of those parties wishes to disclose information from the communications there is no privacy issue. If a third party were to intercept the communications, it might be a different story. There may be separate contractual issues if they agreed to not disclose information, but here there appears to be no such agreement.
I agree that fanboizm isn't a compelling explanation. However, the iPad gets a huge mindshare boost from being the first; it was able to establish market dominance and become the tablet archetype before there was any serious competition. As a result, when people think tablet they think iPad. So, in effect, the decision making process of the average consumer goes as follows 1) wanting an iPad 2) seeing things that are like iPads but not noticeably better 3) buying an iPad
Any challenger has to be able to move people away from that idea that the iPad is the default. If the challenger is merely comparable (or even just slightly better) in a category--as the best alternatives are with OS, hardware and design--it won't be sufficient to shake people off the iPad. Price is the only way for a challenger to distinguish themselves sufficiently to overcome the iPad default mindset.
App development could have that effect too, but most non geeks I know don't seem to know enough about the various app ecosystems for it to be a deciding factor.
And as the userbase has grown, and as it's expected to grow, the average level of education and technical sophistication drops
So the market failure cause by information asymmetry will worsen. This weighs more strongly in favor of non-market solutions, such as through legislation, regulation and litigation.
I'm not sure you can draw a clean line between descriptive and normative statements in this situation. Should is, generally, a normative word as it implies a duty or obligation when used in conjunction with human action. Promiscuous is a normative word as it describes actions outside of the acceptable bounds prescribed by a group's norms. In that context "expect" can mean both/either that the outcome can be predicted and/or that the individual bears some responsibility for predicting it.
If we are talking about individual actions, then no there is not much we can do and the statement can be mostly descriptive. If we are talking about collective societal actions, acquiescence in the face of market failure is choosing the norms of the free market over the norms of privacy protection through political action. One way to drive the system towards protection of privacy is to allow lawsuits for its violation. Or to allow legislation or regulation.
If you are an average person who takes average measures today then you run a high risk of getting pwn3d.
If you're a little bit smarter than average, you can reduce your risk.
I apologize for my tone - it was more snotty than warranted (although more appropriate to the preceding comment that "[a]nybody can learn how to block such things" which implied a lack of expertise was some kind of person failure on the part of victims).
However, I do think people who are promiscuous about running scripts generally don't know that they are doing so. Its a mistake to expect people to take precautions against dangers they don't know exist and to give them no recourse if they don't. That's basically a darwinian approach - only the strong/savvy have a right to privacy.
And in an imperfect world you should also expect the legal system to punish your rapist.
I think that the more knowledgeable one becomes on a technology and its dangers, the less qualified they are to opine about what security measures average people should be expected to take. The vast majority of people I know over 35 probably haven't even heard of JavaScript. And if they have they probably think its Java.
However, a judge in one of them has pointed out that there's no evidence of harm, at least not enough harm to matter to the court under the law.
I would recommend reading the decision itself (http://www.scribd.com/doc/62531370/Bose-v-Interclick) in addition to the commentary, as this is statement is inaccurate.
The court dismissed plaintiff's claims under 18 USC 1030 because Congress has mandated that civil claims are only authorized by this statute when the plaintiff has suffered at least $5,000 in economic harm. This is a much narrower articulation of "harm" than that implied by the article.
The court found plaintiff's allegations of deceptive business practices (NY GBL Sec. 349) and trespass to chattel to be sufficient (dismissing against Interclick's Adertiser clients, but not Interclick itself) stating that "courts have recognized similar privacy violations as injuries for the purposes of section 349" (at 21)
Also, to be pedantic, no decision was made as to whether there was evidence to support the allegations. A motion to dismiss addresses only whether the allegations, if true, create a valid cause of action.
Its not voluntary if you don't know about it and agree to it. Most facebook users don't know about it (but have probably unwittingly "agreed" to it via the TOS). Non facebook users have most certainly not agreed to it.
So if you want to have open wifi, but dissuade people from using if for things which will bring a swat team to your door, naming it FBI_SURVEILLANCE_VAN makes alot of sense.
I agree with you that the effect will be to dissuade people from taking stands against malevolent conventions. Although I think this side effect is a non-factor in the decision to implement real names. I think its more likely that the policy is intended to facilitate the gathering of more useful marketing data by allowing a more complete profile to be constructed and making it more difficult to obscure personal information.
The idea that real names enhance discourse is based on the false assumption that misbehavior is usually anti-social, and will be reduced by community shaming. In fact the most horrific cruelty in human history has been done in furtherance of community norms such as racism, misogyny and religious intolerance.
But, why isn't anyone talking about a very serious problem: the fact that we allow ratings agencies to have so much power in the first place?
I'm sure this was mentioned in comments to the last post, but in case it wasn't it should be noted that Dodd-Frank included two shots across the ratings agency bows: 1) it removed their exemption from expert witness liability and 2) it required federal agencies to remove "baked-in" reference to ratings agencies from the regulations they promulgate. Both of these had the potential to seriously impede the ratings agencies. In fact after the law made them responsible for their opinions they immediately began refusing to allow their ratings to be published (although the SEC appears to have given them a perpetual waiver and a bill to remove this provision has emerged from the House subcommittee a few weeks ago without much fanfare). Of course, both reforms appear to have been eviscerated through the typical process of backroom dealing and regulatory capture. Whoops!
Actually, I think the vast majority of lawyers would agree that there are too many lawyers. Our guild is doing a terrible job of ensuring demand always outstrips supply.
Cooley is actually pretty notorious. Third and fourth tier schools tend to have a massive culling after 1st year, where the bottom quarter/third get kicked out, but Cooley is so large that its cull is especially brutal. That being said, the Cooley grads I've known haven't been any worse on average than other lawyers.
I think that the propensity for making arguments which benefit your client without taking into account its effect on society in general is unrelated to the oversupply of attorneys. I think the pro-IP camp is strongly represented by lawyers whose clients are pro-IP. The problem with Regent grads was their ideological uniformity and authoritarian leanings, not their knowledge of the law.
Very true. Although in this case, Google didn't have a choice - this was a search warrant, not a subpoena.
Subpoenas can be challenged by making a motion to quash, search warrants cannot. That is why a search warrant requires a magistrate to validate the existence of probable cause.
What's especially disgusting about this is that the remedy for an unconstitutional search is exclusion from evidence in the criminal proceeding. Since it is clear that here they are using the criminal justice system on a pretensual basis in order to obtain information. Its absolutely revolting that the prosecutor would take part in this.
Re: Re: Re: A few problems...
Not as different as you might think. Depending on the firm, particular uses may vary, but in my experience (smaller firms) these aren't anything so formal as a database, they are just collections of documents. Their authorship is rarely noted, and sometimes not even a product of the firm - its common courtesy to provide templates to other lawyers and much of the language used somewhat informally standardized across the profession (there are only so many ways to articulate a boilerplate contractual term). Its also common practice to take any language you think is good in any document you see and incorporate it into your templates. So for many documents authorship is impossible to parse.
Briefs are different (and more unique), but my point isn't that lawyers commonly copy briefs verbatim - they don't. Copying a brief earns you no money - if you bill for work you don't do, that is fraud. My point is a general one about the legal profession - we rarely, if ever, draw up things from scratch, and what drafting we do is premised upon a belief that the drafting will improve the quality of representation.
Re: A few problems...
Lawyer here. Practically, copying a brief verbatim is generally not that useful. The most important part of a good brief is the argument applying the law to the particular facts of your case, which will generally be different for each case. What can be usefully derived from another brief is the case cites, which are clearly not copyrightable.
Plus there is a strong public policy rationale in favor of reduced copyright protection in briefs submitted to the court. One of the foundations of our legal system is transparency in the decisions of the courts and papers considered in making those decisions. That is why things like pleadings and motions are generally public documents. Strong copyright protection in crucial components to legal process would seriously undermine this principle.
Finally, it is extremely uncommon in the law to draft documents from scratch; because there is so much to take into account when drafting, it is very risky to do so off of the top of your head. For this reasons law firms will usually have an archive of template documents which will be used as a foundation for things like drafting new contracts and pleadings. These templates are the product of many lawyers editing and tweaking over the years. Briefs are somewhat less amenable to this, but are often used as references. So much of the practice of law is basically copying and adapting preexisting documents
Re: Re: So, "agreeing" to the PS TOS means..
The security breach was of the PSN - the hackers weren't after my FF13 save games, they were after credit card numbers and other personal info from our PSN accounts.
So it appears that this is an attempt by Sony to prevent customers from suing them for their egregiously poor security measures. For this reason, the class action bar is especially troubling, as that would be the most effective way for Sony to be sued case like this, where the damages are spread out among a large number of people in small increments. And the threat of class action suits is generally the only thing keeping companies honest absent a regulatory regime (and even in a regulatory regime, class action lawsuits can be more effective for a variety of reasons, such as regulatory capture or an inadequate enforcement scheme). Although they aren't terribly effective at compensating people (except lawyers), they are still better than arbitration).
Re:
Communications (usually) involve two or more parties. I am no expert on Cali law, but generally if one of those parties wishes to disclose information from the communications there is no privacy issue. If a third party were to intercept the communications, it might be a different story. There may be separate contractual issues if they agreed to not disclose information, but here there appears to be no such agreement.
Re: Re: I'm not sure you understand...
I agree that fanboizm isn't a compelling explanation. However, the iPad gets a huge mindshare boost from being the first; it was able to establish market dominance and become the tablet archetype before there was any serious competition. As a result, when people think tablet they think iPad. So, in effect, the decision making process of the average consumer goes as follows 1) wanting an iPad 2) seeing things that are like iPads but not noticeably better 3) buying an iPad
Any challenger has to be able to move people away from that idea that the iPad is the default. If the challenger is merely comparable (or even just slightly better) in a category--as the best alternatives are with OS, hardware and design--it won't be sufficient to shake people off the iPad. Price is the only way for a challenger to distinguish themselves sufficiently to overcome the iPad default mindset.
App development could have that effect too, but most non geeks I know don't seem to know enough about the various app ecosystems for it to be a deciding factor.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Where
So the market failure cause by information asymmetry will worsen. This weighs more strongly in favor of non-market solutions, such as through legislation, regulation and litigation.
Re: Re: Re: Re: Re: Re: Re: Where
I'm not sure you can draw a clean line between descriptive and normative statements in this situation. Should is, generally, a normative word as it implies a duty or obligation when used in conjunction with human action. Promiscuous is a normative word as it describes actions outside of the acceptable bounds prescribed by a group's norms. In that context "expect" can mean both/either that the outcome can be predicted and/or that the individual bears some responsibility for predicting it.
If we are talking about individual actions, then no there is not much we can do and the statement can be mostly descriptive. If we are talking about collective societal actions, acquiescence in the face of market failure is choosing the norms of the free market over the norms of privacy protection through political action. One way to drive the system towards protection of privacy is to allow lawsuits for its violation. Or to allow legislation or regulation.
Re: Re: Re: Re: Re: Where
I apologize for my tone - it was more snotty than warranted (although more appropriate to the preceding comment that "[a]nybody can learn how to block such things" which implied a lack of expertise was some kind of person failure on the part of victims).
However, I do think people who are promiscuous about running scripts generally don't know that they are doing so. Its a mistake to expect people to take precautions against dangers they don't know exist and to give them no recourse if they don't. That's basically a darwinian approach - only the strong/savvy have a right to privacy.
Re: Re: Re: Where
And in an imperfect world you should also expect the legal system to punish your rapist.
I think that the more knowledgeable one becomes on a technology and its dangers, the less qualified they are to opine about what security measures average people should be expected to take. The vast majority of people I know over 35 probably haven't even heard of JavaScript. And if they have they probably think its Java.
Court did find plaintiff alleged harm
I would recommend reading the decision itself (http://www.scribd.com/doc/62531370/Bose-v-Interclick) in addition to the commentary, as this is statement is inaccurate.
The court dismissed plaintiff's claims under 18 USC 1030 because Congress has mandated that civil claims are only authorized by this statute when the plaintiff has suffered at least $5,000 in economic harm. This is a much narrower articulation of "harm" than that implied by the article.
The court found plaintiff's allegations of deceptive business practices (NY GBL Sec. 349) and trespass to chattel to be sufficient (dismissing against Interclick's Adertiser clients, but not Interclick itself) stating that "courts have recognized similar privacy violations as injuries for the purposes of section 349" (at 21)
Also, to be pedantic, no decision was made as to whether there was evidence to support the allegations. A motion to dismiss addresses only whether the allegations, if true, create a valid cause of action.
Re: Re:
Its not voluntary if you don't know about it and agree to it. Most facebook users don't know about it (but have probably unwittingly "agreed" to it via the TOS). Non facebook users have most certainly not agreed to it.
Re: technology as magic
"If this quote is accurate, either Herr Weichert has a very poor grasp of how the internet works, or I do."
Ummm...hate to be the bearer of bad news, but:
http://news.cnet.com/8301-13578_3-20006532-38.html
Re: Old Joke
Also this - http://lifehacker.com/5829089/discourage-neighbors-from-using-your-wi+fi-by-naming-your-network-some thing-scary
So if you want to have open wifi, but dissuade people from using if for things which will bring a swat team to your door, naming it FBI_SURVEILLANCE_VAN makes alot of sense.
Re: Re: Communities are often sociopaths.
I agree with you that the effect will be to dissuade people from taking stands against malevolent conventions. Although I think this side effect is a non-factor in the decision to implement real names. I think its more likely that the policy is intended to facilitate the gathering of more useful marketing data by allowing a more complete profile to be constructed and making it more difficult to obscure personal information.
Communities are often sociopaths.
The idea that real names enhance discourse is based on the false assumption that misbehavior is usually anti-social, and will be reduced by community shaming. In fact the most horrific cruelty in human history has been done in furtherance of community norms such as racism, misogyny and religious intolerance.
Odio
is a pseudonym right? I mean his name basically means Sam Hatred, so he either does not exist or has moved into this dimension from a comic book.
Re:
maybe the secret patriot act interpretation Wyden and Udall were upset about was that the FBI could seize test answers without a warrant.
Ratings agency power
I'm sure this was mentioned in comments to the last post, but in case it wasn't it should be noted that Dodd-Frank included two shots across the ratings agency bows: 1) it removed their exemption from expert witness liability and 2) it required federal agencies to remove "baked-in" reference to ratings agencies from the regulations they promulgate. Both of these had the potential to seriously impede the ratings agencies. In fact after the law made them responsible for their opinions they immediately began refusing to allow their ratings to be published (although the SEC appears to have given them a perpetual waiver and a bill to remove this provision has emerged from the House subcommittee a few weeks ago without much fanfare). Of course, both reforms appear to have been eviscerated through the typical process of backroom dealing and regulatory capture. Whoops!
Re: Is This Where All The Bad Lawyers Come From?
Actually, I think the vast majority of lawyers would agree that there are too many lawyers. Our guild is doing a terrible job of ensuring demand always outstrips supply.
Cooley is actually pretty notorious. Third and fourth tier schools tend to have a massive culling after 1st year, where the bottom quarter/third get kicked out, but Cooley is so large that its cull is especially brutal. That being said, the Cooley grads I've known haven't been any worse on average than other lawyers.
I think that the propensity for making arguments which benefit your client without taking into account its effect on society in general is unrelated to the oversupply of attorneys. I think the pro-IP camp is strongly represented by lawyers whose clients are pro-IP. The problem with Regent grads was their ideological uniformity and authoritarian leanings, not their knowledge of the law.
Re: I hope he covered his tracks
Very true. Although in this case, Google didn't have a choice - this was a search warrant, not a subpoena.
Subpoenas can be challenged by making a motion to quash, search warrants cannot. That is why a search warrant requires a magistrate to validate the existence of probable cause.
What's especially disgusting about this is that the remedy for an unconstitutional search is exclusion from evidence in the criminal proceeding. Since it is clear that here they are using the criminal justice system on a pretensual basis in order to obtain information. Its absolutely revolting that the prosecutor would take part in this.