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twodot posted:Whether or not the arguments presented meet rational basis isn't a matter of fact, so I don't see the difficulty you're talking about here. Even if that were the case, the appellate courts don't need to use the arguments presented to find a rational basis. (Regardless we should just let gay people get married) The arguments were presented by witnesses as factual evidence, not as legal argument from lawyers, so credibility is part of the evaluation. Because the arguments presented were based in factual evidence evaluated as untrustworthy, the appellate courts can't just say "we think the evidence is trustworthy actually", they have to say that the trial judge was wrong to some degree above and beyond simply they disagree with him (exact standard, as noted by Green Crayons, being circuit dependent, and I don't do anything outside of the Fed Circ so I have no idea what the 6th requires.)
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Mar 22, 2014 05:32
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twodot posted:I don't think this addresses what I said at all. I don't think the judge said their facts were wrong, just that their facts weren't a rational justification of the ban, and even if that were the case, appellate courts don't need to consider the arguments presented in lower courts when deciding rational basis, so even if the arguments you are talking about here are completely dead, higher courts can still ask other people to present similar arguments. You should read the decision before commenting on this, because the judge literally said "The Court finds Regnerus' testimony entirely unbelievable and unworthy of serious consideration." Similar language for the other witnesses for the state. (And yeah, I don't know the Sixth again, but frequently you can't introduce new argument and you essentially never can introduce new evidence in appeal.)
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Mar 22, 2014 16:19
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Though it won't happen, I still think the simplest divider that's easily justiciable is this: if you think you deserve to be shielded from the results of your corporate actions (I.e. limited liability), then you can't claim there's no dividing line between your justifications for action and corporate justifications (corporate beliefs). If a corporation is an extension of your beliefs, then remind me why you deserve to be insulated from judgments against the corporation being held against you personally. Put your money where your mouth is, basically.
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Mar 25, 2014 16:28
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bartkusa posted:Is there any legal difference between prohibiting people from giving money, and prohibiting candidates from accepting money? Is there any legal difference between prohibiting black people from voting and prohibiting voting registrars from letting black people vote?
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Apr 2, 2014 18:24
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AtraMorS posted:Yes, there is. In the first case, the black person trying to vote goes to jail. In the second, the registrar does. Either way there aren't any black people voting or women getting abortions, though. Women getting abortions is actually a great example - think of the laws that specify how clinics have to operate or where they can locate that get struck down because they lay an undue burden on women's right to an abortion. Generally speaking, restraining a right by attacking it at the recipient rather than the initiator isn't any less of a restraint for purposes of constitutionality.
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Apr 2, 2014 20:50
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AtraMorS posted:Yes, and the person who sits in the defendant's box is still a pretty important legal difference. A white registrar is going to have a very different experience in a Jim Crow-era courtroom than a black person would (they'd probably have better access to legal counsel as well, although that's rather beside the point). Likewise, if you're going to argue that the outcomes are the same, you'd have to ignore the disparate prison demographics that result from attacking recipients vs. initiators. Not from the perspective of whether the law impacts the constitutional right to vote or obtain an abortion, which was kind of the key. Pretend the penalty is that the vote is thrown out and nothing else. Now tell me the difference again? If you make it illegal to accept a donation, then yes, the politician is the violator rather than the donor, but EITHER WAY the donor can't donate. If donation is protected speech, how you restrain it is irrelevant to the analysis of whether the right is restrained. It might change any relevant government interests, but that was neither plead here nor is it at all apparent how it'd be different. But either way, the constitutional right is still violated.
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Apr 2, 2014 22:07
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Yeah, we agree - my point was purely in regards to the question being asked re: constitutionality of a law preventing accepting donations vs preventing giving them.
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Apr 3, 2014 02:23
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Hollismason posted:I am a little unclear on the latest ruling, with regards to campaign financing. Does this mean that you can just give whatever you want regardless and there are no restrictions, and since Corporations are considered for purposes of that people cna corporations just dump huge sums of money into races now? No. It means that the aggregate limits on contribution (total amount given to anyone over a timespan) are gone, but individual limits (max to give to a given candidate, committee, party, etc. per election cycle) are still there.
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Apr 3, 2014 19:23
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UberJew posted:This amounts to a practical removal of any limit on contributions, since it's just limited by how many shell entities you care to spin off. Which is basically just a tax in the form of administrative costs to pay lawyers to establish the shells. Not quite. Because PACs have limits on how they contribute/spend, and those limits can be imputed to individuals in some circumstances, you can't just form "perry pac1" through "perrypac100000" and contribute money to each of them. It's definitely not a good thing but it isn't going to be anywhere near as easy as you paint it to evade. Of course it will also somewhat rely on the FEC being effective so... Yeah, it's not a good thing.
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Apr 4, 2014 09:19
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KernelSlanders posted:I'm still getting my popcorn (with buttery flavoring). We haven't had a good Lanham Act case in a while. I mean, other than Lexmark earlier this year.
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Apr 21, 2014 18:29
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BirdOfPlay posted:Everyone's talking about the others, but what's the dealio with this one? Is it a reverse-engineering case involving something like what the guy does in Paycheck? Or is it something like the Pirate Bay, but with patents? Neither. Akamai is a patent case that's going to review what's called "divided infringement" - basically, what kind of liability is available in a situation where a single patent covers something but that something is performed by two separate entities. As an example, let's say I had a patent on "a method comprising throwing a ball and catching the ball." Joe throws the ball. Bill catches it. No single party performs all the steps of the patent. So, who's liable? The answer, right now, is no one, unless Joe exerts control over Bill's actions or vice versa.
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Apr 21, 2014 23:15
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UberJew posted:If you're wondering if Aereo did this intensely stupid thing or that technologically ridiculous thing to adhere to the frankly baffling state of regulations the answer is always yes. That's why SCOTUS granted cert, because it's not a question of whether Aereo is following regulations, but that they are and gosh darnit it just ain't fair, they're dodging the spirit of the law to ruin the livelihood of us poor broadcasters (who long since murdered the spirit of copyright law and buried it in a pool of lime in their basement, making the whole case frankly hilarious) Well, that and because Aereo only adheres to regulations if you accept Cablevision as controlling, which it isn't in other circuits. And that assumes Aereo doesn't violate retransmission regulations - since they WILL transmit out of market (to anyone with an in market zip code on their credit card), that's a distinct difference from the Cablevision situation.
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Apr 23, 2014 02:12
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UberJew posted:Depends on how the opinion is written. SCOTUS can in fact pretty easily write one that kills the entire concept of cloud storage, though I doubt Roberts wants to do so. I think the Justices are quite aware of the cloud storage issue, which is why they will center the whole thing on retransmission consent instead, find Aereo to be a MVPD, and thereby allow the broadcasters to demand fees for transmission ( your "free in a local market" thing is a misreading of must-carry - broadcasters can force MVPDs in their local market to carry them but are barred from receiving fees for it; otherwise, the MVPD has to pay the retransmission fees.) Avoids all the public performance issues entirely, doesn't touch cloud services because it's a separate statutory regime.
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Apr 23, 2014 03:34
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Allaniis posted:Not quite true. Aereo also does an IP check and blocks you if it detects an IP not located in the correct zipcode sector, even if you are a subscriber. Not actually relevant to retransmission anyway, for the reasons I explained further on, but good to know - thanks!
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Apr 23, 2014 06:17
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Paul MaudDib posted:If you're retransmitting content when you're streaming video from your antenna to your mobile device, you're also retransmitting content when you stream your CD rips from your MyBook Live hard drive or from your TiVo. Except that there is a legal difference between retransmission a user does themself and retransmission performed by a third party. Mike Risch had a good post on Aereo yesterday: http://madisonian.net/2014/04/22/three-pictures-aereo/
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Apr 23, 2014 19:37
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Paul MaudDib posted:What is the difference? Let's say I rent my TiVo from my cable company (companies like DirecTV rent DVRs which can do "cloud streaming"). Then a third party owns the device which is streaming me media, therefore the third party is retransmitting? Cable company has already paid the broadcaster a fee to retransmit their content. quote:Without a user connected to watch it, the box isn't going to retransmit a damned thing. Personal streaming is obviously a private performance. That's in contrast to a radio or TV rebroadcast, which happens whether someone's connected or not. And? The rebroadcaster doesn't rebroadcast when it's turned off either, but you aren't going to argue that doesn't make it a rebroadcaster, right? The problem is that when a user is connected it retransmits, and the law doesn't really care that when a user isn't connected it doesn't. Your other examples don't fall into retransmission for a variety of reasons. Also, personal streaming is not obviously a public performance under the law - see Columbia v Redd Horne, 749 F2d 154, in which private "streaming" of videocassette into private booths was a public performance. Still good law in the 3rd as far as I know! Also note that YouTube videos are public performances, despite being streamed to a single entity in any one location and likely a different ephemeral copy for each entity given the realities of caching and CDNs.
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Apr 23, 2014 23:15
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Paul MaudDib posted:I think you're misusing the word "retransmit" here. DirecTV certainly pays the distribution fees to transmit the content, but I've never heard of them paying a fee to retransmit content later. Like, there's a line item on your DirecTV bill, "Fee For Streaming DVR Recordings"? Or DirecTV pays such a fee in aggregate separate from the initial license for the content? Can you provide evidence for this claim? DirecTV pays television broadcasters a fee to retransmit their OTA content. Not to transmit it. They pay a transmission. ( technically public performance) fee to direct content providers like Comedy Central or CNN who don't broadcast, but retransmission of OTA content is under a separate statutory regime. Go google "retransmission consent". It's an enormous political/regulatory issue in the broadcast industry and the core of what's at stake in Aereo, so you should probably understand it before making assertions about how the whole regulatory apparatus works.
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Apr 24, 2014 20:40
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MisterBibs posted:Kinda a broad question, but I'm curious: Badger of Basra posted:It's just this. The two retirements he had were liberals. If any of the conservatives had resigned, we would be getting a whole different kind of 5-4 ruling. Or, to put it differently, if it had been McCain we'd be seeing a bunch of 7-2s.
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Apr 25, 2014 08:24
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, since I suppose I could look it up, but what happened that such an expectation didn't come true? Was it Obama mis-guessing what would happen? Too many conservative judges not retiring yet?
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SedanChair posted:Most intellectual conservatives have idiosyncratic positions. It's how they assure themselves that they are not toeing a party line. And the 4th Amendment is Scalia's one idiosyncratic position, but even there it seems mostly driven by distrust of government/worry they're going to watch him showering (read Kyllo). Don't worry, Nino - I guarantee NO ONE wants to see you in the shower.
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Apr 25, 2014 19:37
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Evil Fluffy posted:At the least, consent would imply a majority voting to support the judge being put on the bench. Technically, consent is whatever the Senate says it is. If the Senate decided consent meant "you asked us and we didn't have a majority vote no" then that's what it would mean. It's just that no Senate ever will give up the right to approve major nominations.
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Apr 26, 2014 00:21
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The Warszawa posted:It's not just Concepcion, it's Dukes, and then you've got the generalization of the specific context of Twombly to everything in Iqbal, which is (doctrinally) boring a fuckhole into Rule 8 (though judges may in fact be self-correcting on that). Not everything yet - patent trolls still get to do Form 18 pleading instead of meeting Twombly. Speaking as someone who does defensive patent lit for a living, I wish Twombly applied. (loving Fed Cir.)
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Apr 26, 2014 20:56
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Prism posted:Is that intended to read 'Yeah, we took it. We haven't decided if we took it in a way that means we need to pay you for it or if we just control everything you own, but it's gone now and you can't have it back.'? Because that's pretty much how it reads to me. It's basically: "We took it under all conceivable definitions of taking. If we took it under Power A, we owe you money for it because constitutionally Power A requires compensation. If we took it under Power B, we don't because it doesn't." The opinion then goes on to decide which way they did it. The snippet is just setting up what they're deciding. They don't get it back either way, the only question was whether it counts as a 5th amendment takings or whether it was under the tribal land management power.
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Apr 29, 2014 18:25
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Allaniis posted:The Supreme Court slapped the Fed. Cir in the face again and returned more power to district courts with regard to attorney fees in patent litigation suits. See Octane Fitness v. Icon Health & Fitness and Highmark v. Allcare Health Management Systems. The next time a district court awards shifted fees would be my bet. StarMagician posted:Can someone put together an effortpost explaining how these sorts of cases make it to the Supreme Court? I'm assuming that there's a legal organization somewhere that wanted more power for the District Courts, and it's one that has no opinion on and no interest in the merits of various health food companies. I would also be surprised if Octane Fitness were looking to spend years and hundreds of thousands of dollars trying to go all the way to the Supreme Court with whatever dispute it was. Actually, it was definitely Octane - they were hoping to force ICON to pay their legal fees for the dispute. Not backed by anyone else, just their own interests. (having billed something like 120k in work to clients in March all by myself, I can understand the desire to recover attorneys fees.)
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Apr 30, 2014 05:58
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Allaniis posted:It also helps larger companies by fending off legitimate claims from smaller competitors, due to the increased risk. These are basically nonexistent in practice though. Akamai is being argued today. It's interesting, but Nautilus will likely have a larger impact on the patent world than either of it's bigger name brethren (Akamai and CLS bank, unless the Court does something more extreme than expected in CLS.)
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Apr 30, 2014 06:46
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Ron Jeremy posted:Why should the defendant have the burden of maintaining the states evidence against him? Because they generally have the burden of not destroying evidence in their possession.
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Apr 30, 2014 22:45
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Cheekio posted:I think the 'burden of proof' conflation is that cold storage and transport of perishable goods isn't free, and is actually quite expensive. If the statue was against fish less than 20' long instead of 20", it would be obviously burdensome for someone to maintain and provide 72 19' perishables to the court. Nothing to do with the legal term, but someone has to pay for that evidence to get to court and apparently it's ok to decide the fisherman, not yet proven guilty, is expected to foot the bill, which does kind of suck. He destroyed it on the trip back to shore. There's no preservation cost issues to worry about here.
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May 1, 2014 06:13
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Green Crayons posted:Any thoughts on whether the fact that he's currently serving on California's supreme court is providing him the experience he needs to be a credible nominee? Possible but unlikely - there's a real prejudice against nominating people who haven't served on federal courts (although Kagan so not impossible.) Bigger problem is that he already lost a nomination fight so there's reluctance to put him into another one - no one wants to have a SCOTUS nominee shot down.
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May 1, 2014 13:29
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mdemone posted:We like Liu though, correct? I seem to remember last time Obama was picking, Liu was a name people talked about on the long-list as potentially very exciting for progressives. Liu would be fantastic. I was around the Senate for his nomination process and he's brilliant, progressive, and genuinely a nice person. He'd be a great partner for Sotomayor on the Court in that they each have slightly different areas where they stand out and areas where they're flawed. I just don't hold out a ton of hope for him to get confirmed, is all.
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May 1, 2014 13:46
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AmiYumi posted:Yes. And? It's not like ignoring/sleeping through them makes for better jurisprudence. Thomas actually pays attention - he frequently discusses issues with Breyer and it's not infrequent to hear a Thomas-esque question come out right after one of those discussions. Don't mistake not asking questions for not paying attention. Thomas doesn't think oral arguments are particularly worthwhile, but he does pay attention.
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May 8, 2014 01:04
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evilweasel posted:I have personally witnessed Thomas napping at oral arguments. Having witnessed an ERISA argument, I don't blame him at all.
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May 8, 2014 01:45
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SedanChair posted:I thought he just had one of those big rear end coach conversions. Probably has some kind of commercial license for it. If I remember right, he has a big rear end converted bus that he and his wife go on vacations in every summer. It's kind of a nice image, a Supreme Court justice and his wife just packing up and driving the gently caress around the country for their vacation.
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May 8, 2014 13:37
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Hieronymous Alloy posted:Hey, give me some credit, I at least have enough sense to actually check Griswold before I make a post like that :P Depends on what the original theory of the 3rd Amendment was. While Griswold and co may cite it for privacy arguments, the current Court isn't going to go for that - they'll limit it sharply to actually imposing the physical presence of a soldier in a home, which was the original intent.
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May 9, 2014 19:20
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OddObserver posted:Perhaps far worse: speaking as a computer person (and not a lawyer), depending on details it may make it impossible to create They only held that APIs can have a copyright, not that you can't reproduce them for interoperability reasons. It's not that bad. For precedent, they were theoretically interpreting 9th circuit precedent - a district court might choose to follow it, but they probably aren't bound to.
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May 11, 2014 02:30
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OddObserver posted:Yes, but if an API is copyrightable then it seems a reimplementation of it might be a derivative work (since it has to include the now-copyrightable method names + signatures), It was remanded for a determination if fair use, and while fair use does require a court interpretation, it's almost certainly going to be found to be fair use to reimplement the API, which the next person sued for will point to, meaning that over time it becomes understood that it is fair use and the suits stop. (If you actually read the court case you'd understand why it probably doesn't apply to network protocols or file formats.)
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May 11, 2014 10:38
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Mr. Nice! posted:The part you're concerned about, that is reimplementation of various APIs is ok. Google pretty blatantly just copy/pasted huge chunks of code. Well, yes and no. Google copied the function definition code (the .h file, basically) and wrote their own implementations of the functions. But that's not why the decision said Google infringed - the decision said that the naming and organizational convention of the interface API was copyrightable. It's more problematic than you make out because it wasn't that Google copied the code, it's that the interfaces themselves were copyrightable so even if Google had reproduced the interfaces via reverse engineering, they still would have infringed. (Note: I think the decision at the Fed Cir was wrong and that there basically is and should be an interoperability exception to copyright in computer API code, although the cases setting out that exception apply in different factual circumstances and are thus differentiable.)
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May 11, 2014 12:41
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Paul MaudDib posted:It's impossible to do a re-implementation if the API is now copyrightable, since if you don't use the API then the rest of the system has no way to call your code. Unless, of course, reimplementation of the API for interoperability reasons is considered a fair use. (Which the district court most likely will find it to be.) APIs are now copyrightable in the same sense medical coding systems are - they're copyrightable, but only a little bit (so-called "thin" copyrights.) This is probably the right result - there is a minimum quantum of creativity required in ordering and classifying the functions. But there is a strong public interest reason to allow for interoperable languages as fair use, and I would expect the district court to rule that way on remand (and the 9th Circuit likely to uphold it, the Federal Circuit being the circuit this went to was a weird artifact.)
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May 11, 2014 18:54
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ShadowHawk posted:Yes, but if the API itself is copyrightable (and thus verbatim copying of the definition is wrong), then we have to rely on fair use defense, which in turn is subject to a whole number of tests we might fail with various fact patterns. It would effectively make Wine illegal if it was only fair use to use it except when it was being used to run commercial software or run on a commercial system. That's the entire point of it -- the free software we've already ported. Fair use isn't anywhere near as unpredictable as people make it out to be, though, and with a copyright as thin as the API copyright, factors like commercialization will be correspondingly less important.
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May 12, 2014 04:03
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Mr. Nice! posted:3% of the 37 APIs matching and verbatim copying are two very different beasts. There's no way that this ruling should stand when it contains a glaring factual error. The verbatim copying was with respect to the names and organization of the functions, which Google admitted to (copying here meaning they used the same names and organization, not that they necessarily hit copy-paste.) The Fed Circuit didn't make a factual error, as much as you want them to have done so.
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May 13, 2014 12:44
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KernelSlanders posted:Or phonebooks... Feist is different because the information copied in Feist was factual information which contained no new content and the arrangement contained no creative expression. In contrast, the API isn't factual information because there's no inherent reason a function needs to be called java.max() and the arrangement into packages and whatnot does have creative expression (in the same way medical billing code systems do.)
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May 13, 2014 16:21
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duz posted:Well up until this decision, what they did was perfectly fine and is common in software. And even after this decision, may still be perfectly fine. The decision was that APIs are copyrightable, not that you can't reimplement them for interoperability reasons. That question is still open.
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May 14, 2014 15:14
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