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garagerock
Premium
join:2002-06-14
Louisville, KY | reply to garagerock
Re: Ignorance of the Law....
sweet! moderation city! | |
oliphant5
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join:2003-05-24
Corona, CA
| reply to Kaltes
quote:
"The failure of a service provider to qualify for any of the limitations in section 512 does not necessarily make it liable for copyright infringement"
Does not NECESSARILY...which is my whole point. While some complain that this NEW law will be used to haul off grandma...it's up to the DISCRETION of the prosecutor which is exactly how the U.S. Copyright Dept. has interpreted the DMCA law in these guidelines for prosecutors and every law is treated the same way.
There is no mandate that EVERY instance be prosecuted, whether it's the DMCA, Title 17 violations, or any other law no matter how much fiction you produce...and while you choose to ignore the reasonable care requirement of the DMCA, the UNITED STATES COPYRIGHT OFFICE hasn't. Since you obviously missed it...I'll quote them AGAIN for ya.
said by U Copyright office:
...must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers
What part of REASONABLY IMPLEMENT do you have trouble following?
As for the reasonable care (or lack thereof) and negligence precedence...here it is
said by Blyth v. Birmingham Water Works (1856) 11 Ex. 781:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.
This is the key phrase "The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.
So under any law (since negligence and criminal negligence are part of COMMON LAW), a person can also be liable or found having contributed to a criminal act (negligence or criminal negligence) simply by not taking REASONABLE CARE...that is, doing what a REASONABLE person would have done that would have lead to the prevention of the crime. Reasonable care provisions don't have to be written into every statute.
As for what is reasonable...again, it's descretion said by Carlson v. Chochinov (1947):
the ideal of that person exists only in the minds of men, and exists in different forms in the minds of different men. The standard is therefore far from fixed as stable. But it is the best all-round guide that the law can devise.
As for the duty component of negligence (duty to take reasonable care) I would argue that just like a gun owner has a duty to take reasonable steps to secure their firearms, a computer owner has a duty to take reasonable steps to secure their computer. What's reasonable? That's for a jury to decide as all-round guide of what reasonable care is, is determined by a jury...and what jury is going to string up a grandmother? Given that, what DA is going to waste his/her resources bringing up granny in front of a jury just to get bitch slapped by that jury and the media backlash that follows.
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Kaltes
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join:2002-12-04
Los Angeles, CA
| ""it's up to the DISCRETION of the prosecutor which is exactly how the U.S. Copyright Dept. has interpreted the DMCA law in these guidelines for prosecutors""
- That document from the copyright office was not released as a guideline for prosecutors. In fact, this new Act is not even a copyright violation, so the copyright office would have nothing to say about it.
""There is no mandate that EVERY instance be prosecuted""
- Exactly right, but you then ASSUME that prosecutors will act perfectly in every case. Prosecutors are not supposed to be abusing their discretion to send 25 year olds to jail and not 70 year olds, given the same set of facts. If the law is being enforced at all, then the prosecutor can not merely turn a blind eye to grandma.
- If however, the law is NOT BEING ENFORCED, as is the case with one portion of the NET act, then why pass the law at all?? ASHCROFT is supposed to be throwing p2p users in federal prison, but thus far he has REFUSED to do so. Pretty nice guy, eh?
- You can't simply claim that prosecutors are all-knowing people who will be able to magically determine who is guilty and who is not. They are human like you and I, and they simply don't know for sure. In the case of THIS proposed law, given the subject matter of this article (the hacking) prosecutors will truly have no idea, thereofre youre argument that prosecutors can somehow pick out the truly guilty persons and only send THEM to federal prison, is preposterous.
""while you choose to ignore the reasonable care requirement of the DMCA, the UNITED STATES COPYRIGHT OFFICE hasn't. Since you obviously missed it...I'll quote them AGAIN for ya: "...must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers"""
- I hate to repeat myself here, but that little quote does not say REASONABLE CARE. As I said before, reasonable care is a term of art, and the WORD reasonable does not mean reasonable care. "Reasonably implement" refers to a good-faith requirement, not an objective burden. Your problem is that you are using the COMMON LANGUAGE definintions for LEGAL TERMS. You can't do that, it isn't how the law works.
- I don't have trouble understanding what 'reasonably implement' means, but evidently you do.
""So under any law (since negligence and criminal negligence are part of COMMON LAW), a person can also be liable or found having contributed to a criminal act (negligence or criminal negligence) simply by not taking REASONABLE CARE""
- You quoted a case after googling some terms, congrats. Too bad this paragraph of yours that I have quoted here is NOT what the case said. It is merely your own incorrect conclusion. You don't even understand what reasonable care really is. Anyone can quote a case, the hard part is figuring out what that case MEANS. Thats what you learn in law school.
""As for the duty component of negligence""
- Like I said before, over and over, THIS CRIMINAL LAW DOES NOT USE A NEGLIGENCE STANDARD. Negligence is a civil tort that has nothing to do with criminal law, unless a criminal law expressly states that the negligence standard is to be used. The default is recklessness.
If you want any more lessons from me, I'm going to have to charge you. | |
oliphant5
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join:2003-05-24
Corona, CA
| First you bring up the DMCA and that ISPs have safe harbor and I show you that they do only if they show reasonable care in controlling their users. You rewrite the law thinking no one will bother to check. I quote you the summary provided by the U.S. Copyright Office...which is USED BY PROSECUTERS in interpreting the intent of the DMCA... clearly stating that ISPs have the duty (reasonable care) to control their users...you again ignore it.
Reasonable care isn't a different "art". Different art. What pseudo-intellectual drivel. The legal duty is the same standard...what would a reasonable person have done that you didn't do. Whether it's civil or criminal...THAT standard of what would a reasonable person have done in that situation is the same.
Here is the Webster's Law Dictionary definition of Reasonable Care since you are obviously or intentionally confused as to what Reasonable Care is.
said by Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.:
Reasonable Care
n : the care that a reasonable man would exercise under the circumstances; the standard for determining legal duty - syn: due care, ordinary care
Reasonable steps to implement a policy in order to avoid trouble is the duty (which duty is the required component for the reasonable care standard for both civil and criminal negligence) ISPs must complete if they wish to avoid trouble under the DMCA...now I'm sure you will ignore that clause...you've done it multiple times thus far. And as I stated before...ANY LAW can include reasonable care requirements...that's what reasonable care being part of COMMON LAW is.
Criminal negligence does IN FACT use the exact same reasonable care standard and no amount of your revisionist history or term redefining can change that.
Again...since you have so much trouble following along.
REASONABLE CARE CAN BE APPLIED TO ANY LAW A DA SEES FIT UNLESS A STATUTE EXPLICITLY EXEMPTS SOMEONE FROM A DUTY OF REASONABLE CARE IN THAT SITUATION which neither the DMCA or any other of their anti-piracy laws have.
If you can produce an explicit exemption clause of all duties of reasonable care in this new law...so be it...I'll agree with you. If you can't (just like you can't for the DMCA..in fact the DMCA explicitly requires reasonable care) then I'll know you are just trolling to get your post count up.
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Kaltes
Premium
join:2002-12-04
Los Angeles, CA
| Oliphant's Ignorance of the Law....
There are so many basic things about the law that you do not understand, oliphant, that I can not begin to educate you on the subject. In addition, I find it more fitting to allow you to remain in the ignorance you so cherish. If you really believe that 'I am just trolling to get my post count up,' then you are so far gone that not even a psychologist could help you out of the mental mess you've gotten yourself into. Your comments are not merely ignorant, they are beyond insanity.
#1. You fail to understand the difference between criminal law and civil law. The topic of this article is a criminal law, yet you incessantly attempt to misapply aspects of civil law. You continue to do this even after I have corrected you and shown you the error of your ways.
#2. You fail to understand what a 'term of art' is. This is such a basic concept in the legal world, that your failure to grasp it would, of course, lead you into a morass of improper reasoning.
#3. You fail to understand that a document released by the US Copyright office is not the law, and 'prosecutors' are not bound to even so much as look at it. I already gave you a response on this, which you ignored.
#4. You fail to understand what negligence means, even in a civil context. Any moron can find the elements on google: duty, breach, causation, damages. For some reason you have become obsessed with one aspect of one of those elements. The following statement illustrates that you actually have no clue as to what the negligence test really is: ""which duty is the required component for the reasonable care standard for both civil and criminal negligence"" -oliphant. Did you learn the law by sniffing glue and then hallucinating about it?
#5. You fail to understand how utterly moronic this quote from you truly is: ""REASONABLE CARE CAN BE APPLIED TO ANY LAW A DA SEES FIT UNLESS A STATUTE EXPLICITLY EXEMPTS SOMEONE FROM A DUTY OF REASONABLE CARE IN THAT SITUATION"" -oliphant. In case ANYONE ELSE is reading this topic, I will state that simply: a DA has no discretion over the mens rea standard for any law. Period.
#6. You fail to understand that 'reasonable steps' does not equal 'reasonable care'. The words used are different. This concept might be hard for you to grasp, so I suggest you call your 1st grade english teacher to confirm that, in fact, different words in the english language mean different things.
#7. You fail to understand that criminal negligence is a very rare thing, arising only when a statute specifically states that the negligence standard will be used. You seem to think that all criminal laws include this standard. This is yet another example of a situation where you have made outlandish assumptions about the law instead of educating yourself. I ALREADY told you that the default mens rea is recklessness.
#8. You fail to understand that if a user of this forum relies on your horrible legal advice/opinion and makes a bad choice which results in harm, you could be exposed to prosecution for THE UNAUTHORIZED PRACTICE OF LAW. Unlike typical forum fodder, the law in most cases involves RIGHT AND WRONG answers, and people who give WRONG answers can be held accountable. Attorneys may face malpractice, and non-attorneys may face THE UNAUTHORIZED PRACTICE OF LAW. Since you: (1) put forth legal opinions and analysis and (2) have acted in such a fashion as to attempt to pass yourself off as a reliable source, you are potentially exposing yourself to prosecution should any user actually believe you and act in reliance based on what you say.
The law is serious business. You might want to consider refraining from making legal arguments/conclusions/opinions until you are better informed. Good day.
disclaimer: no reader should rely on my posts as legal advice, and readers should seek the counsel of an attorney if they have any particular questions about the law. | |
oliphant5
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join:2003-05-24
Corona, CA | Oh please. Save your fiction for the Saturday Evening Post. | |
BosstonesOwn
join:2002-12-15
Everett, MA
clubs: | reply to garagerock
Re: Ignorance of the Law....
ahhh yeah what kaltes says.... damn thats alot of legal stuff.
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This package does not contain a winner... | |
Kaltes
Premium
join:2002-12-04
Los Angeles, CA
|  reply to oliphant5
Re: Oliphant's Ignorance of the Law....
said by oliphant5  :
Oh please. Save your fiction for the Saturday Evening Post.
It takes a big man to admit it when they are wrong, and I figured you weren't, so it looks like I was right (again).
If that is the best you can do as far as a response, I guess you can't come up with anything of substance. I hope you learned your lesson. As Apu says in the quickie-mart: "Thank you, come again." | |
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