Ignorance of the Law.... - dslreports.com

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."
	to forum · permalink · · 2003-11-21 20:20:04 ·
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. -- This package does not contain a winner...
	to forum · permalink · · 2003-11-20 21:51:49 ·
oliphant5 Got Identity? Premium join:2003-05-24 Corona, CA	reply to Kaltes Re: Oliphant's Ignorance of the Law.... Oh please. Save your fiction for the Saturday Evening Post.
	to forum · permalink · · 2003-11-20 10:07:55 ·
Kaltes Premium join:2002-12-04 Los Angeles, CA	reply to oliphant5 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.
	to forum · permalink · · 2003-11-20 02:20:43 ·
oliphant5 Got Identity? Premium join:2003-05-24 Corona, CA	reply to Kaltes Re: Ignorance of the Law.... 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. -- Don't get it, demand it! The Anime Network »www.theanimenetwork.com/index.html And something pretty good from the Cooler »elev.ru.orebro.se/ru0369/HAHAHAHA.MPG
	to forum · permalink · · 2003-11-19 19:34:49 ·
Kaltes Premium join:2002-12-04 Los Angeles, CA	reply to oliphant5 ""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.
	to forum · permalink · · 2003-11-19 18:22:23 ·
oliphant5 Got Identity? Premium 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. -- Don't get it, demand it! The Anime Network »www.theanimenetwork.com/index.html And something pretty good from the Cooler »elev.ru.orebro.se/ru0369/HAHAHAHA.MPG
	to forum · permalink · · 2003-11-19 10:31:02 ·
garagerock Premium join:2002-06-14 Louisville, KY	reply to garagerock sweet! moderation city!
	to forum · permalink · · 2003-11-19 09:53:12 ·
Kaltes Premium join:2002-12-04 Los Angeles, CA	reply to oliphant5 Re: Ignorance of the Law.... oliphant...... ""Before you keep quoting the content of the DMCA, perhaps you should actually read it first. "" Actually, I know more about section 512 of the DMCA than you'll ever know. You might be able to read it, but you don't understand what it means. I do. That is because I have a law school education and you don't. I'm not telling you aren't qualified to make any point, but you should have enough common sense to know when you are out of your league. In addition, you should not try to argue ABOUT THE LAW with someone who actually has an education. What, do you start arguing with your doctor about his diagnosis too? Google can only take you so far. Copy/pasting the opinions of people who DO know what they are talking about doesn't mean YOU understand what they are saying. Since you insist on attacking me personally, as well as claiming that you are something of an expert on the law when it is obvious that you aren't, I am not going to give your ignorant arguments the respect that the other posters on this forum deserve. If you stop posting ignorant and/or childish comments, I would be more than happy to refrain from belittling them. ""Sure sport...just like Title 17 gave everyone fair use rights that weren't overshadowed by the newer DMCA. No law is set in stone."" The DMCA did not alter fair use rights under Copyright law. The anti-circumvention aspects of the DMCA simply granted copyright holders additional rights separate from their copy-rights. You just read a website that gave second-hand opinions about the DMCA and you're over here thinking you're an expert, lol. Are you actually trying to claim that this proposed act TARGETS ISPs? No, that would be stupid, because #1 ISPs would use their lobbying strength to kill the bill and #2 this is a criminal law, so who is held CRIMINALLY responsible at the ISP? It is very obvious from the article that the Artists' Rights and Theft Prevention Act does not apply to ISPs. Your suggestion to the contrary, is NONSENSE. ""There IS NO SAFE HARBOR when it comes to providers not taking reasonable care to stop infringement. And reasonable care isn't exclusive to the DMCA guy."" - Im sorry, but I didn't see the words 'reasonable care' anywhere in section 512 of the DMCA, why don't you copy/paste an example for me? I would especially like to have you show me where it says that an ISP loses safe harbor when the ISP does not take (your words) "reasonable care to stop infringement". ""It's also REQUIRES that...LIKE I SAID providers (insert CO quote)"" - Sorry, but what the copyright office says is not law. Congress determines what the DMCA requires, not the copyright office, unless specifically authorized to do so by Congress, which is not the case for section 512. This is yet another misunderstanding you have that a legal education would have resolved. - I'd also like to point out that #1 the copyright office didn't use the word reasonable care #2 reasonable care is a term of art. Keep looking for that 'reasonable care' quote you owe me, lol! ""So contrary to what you just claimed...the DMCA EXPLICITLY makes ISPs liable for their users infringement if they don't take reasonable steps to stop it...just like now home users would have to take REASONABLE steps to stop it."" - This really demonstrates how utterly ignorant of 512 you are, you couldn't be more wrong. Using the SAME copyright office document YOU QUOTED, allow me to QUOTE RIGHT BACK: "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"
	to forum · permalink · · 2003-11-19 05:07:21 ·
oliphant5 Got Identity? Premium join:2003-05-24 Corona, CA	reply to Kaltes Re: Ignorance of the Law.... said by Kaltes : What you are talking about it totally unrelated, and in addition the DMCA already gives ISPs safe harbor from liability/prosecution regarding infringements of their users! Sure sport...just like Title 17 gave everyone fair use rights that weren't overshadowed by the newer DMCA. No law is set in stone. And WTF are you talking about safe harbor. There IS NO SAFE HARBOR when it comes to providers not taking reasonable care to stop infringement. And reasonable care isn't exclusive to the DMCA guy. If you had bothered to actually read Article II of the DMCA you would see that their immunity only extends to things like system caching, transporting of other's data, search technologies. It's also REQUIRES that...LIKE I SAID providers said by US Copyright Office: must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers - United States Copyright Office Summary of the DMCA of 1998. »www.loc.gov/copyright/legislation/dmca.pdf Before you keep quoting the content of the DMCA, perhaps you should actually read it first. So contrary to what you just claimed...the DMCA EXPLICITLY makes ISPs liable for their users infringement if they don't take reasonable steps to stop it...just like now home users would have to take REASONABLE steps to stop it. If ignorance is bliss you must be on cloud nine. -- Don't get it, demand it! The Anime Network »www.theanimenetwork.com/index.html And something pretty good from the Cooler »elev.ru.orebro.se/ru0369/HAHAHAHA.MPG
	to forum · permalink · · 2003-11-18 17:51:21 ·
Kaltes Premium join:2002-12-04 Los Angeles, CA	reply to oliphant5 said by oliphant5 : Again...no one is going to haul off grandma...but they will go after say a web hoster who after being told to remove files or cut access to a infringing user simply ignores the demands of the state. You really can't get anything right, can you? Did you even READ the news post? What you are talking about it totally unrelated, and in addition the DMCA already gives ISPs safe harbor from liability/prosecution regarding infringements of their users! Sheesh, just stop posting until you know what you're talking about! You're just spewing nonsense now because you want to get the last word.
	to forum · permalink · · 2003-11-18 17:40:57 ·
oliphant5 Got Identity? Premium join:2003-05-24 Corona, CA	reply to Kaltes No but if you have a gun in that unlocked car and someone takes it and kills someone with it, you can bet you will be held as criminally negligent. They can just as easily transfer this idea of contributory negligence to someone who due to their own carelessness permits their computer to be used for a crime...but it would have to be blatant or a DA would never bring the case...for instance, the owner is also involved in illegal file trading then claims only some of the files were his, or he owned a server and let his friends use it...and they used it to trade files or make files available (which is why ISP's and web hosting companies will shut you down your site immediately if you post copyrighted files in your webspace...because they too are liable both civilly and with this law, criminally). Again...no one is going to haul off grandma...but they will go after say a web hoster who after being told to remove files or cut access to a infringing user simply ignores the demands of the state.
	to forum · permalink · · 2003-11-18 17:15:38 ·
Kaltes Premium join:2002-12-04 Los Angeles, CA	reply to oliphant5 A few comments: ""That bullshit excuse doesn't cut it if you are caught with someone elses drugs"" - garagerock - If you are arrested for possession of those drugs, and you claim that those drugs aren't yours, and you don't know how they got there, AND THE JURY BELIEVES YOU, then you will, in fact, be found not guilty. So yes, it is a valid excuse. ""Do you have trouble reading? REASONABLE care."" - oliphant - Where does it say in the Artists' Rights and Theft Prevention Act that you have a duty of reasonable care to secure your PC, OR ELSE? If you think that reasonable care applies to EVERYTHING in life, you are dead wrong. A little knowledge can be a dangerous thing, and it is very clear that you know just enough about the law to make outlandishly wrong statements like you have been doing. - THE DUTY OF REASONABLE CARE is relevant to a civil suit for negligence, not a criminal law punishing willful violations of intellectual property law. WILLFUL violations do not use the negligence standard. Stop spewing misinformation on these boards. ""You're the fool who thinks there should be complete immunity in a case in which negligence permits your property to be used for criminal action."" - oliphant - So if you leave your car door unlocked, and a guy steals your car, then uses it to muder someone in a drive-by shooting, because your negligence permitted your property to be used for a criminal action, you should be found guilty of murder? If geniuses like yourself, oliphant, ran our society, people would indeed be getting the death penalty for unlocking their car door. The problem with you is that you don't THINK about what you say before you say it, so you spew nonsense that has more to do with your own resentment of the world than it does with a thoughtful policy argument. ""Potentially the world could end tomorrow. With your brilliant logic, why do anything today because of "what ifs" tomorrow."" - oliphant - Ponder this: You are a legislator. You ignorantly and NEGLIGENTLY propose/pass a law that results in a man being given the death penalty for leaving his car door unlocked. Your own law is then applied against you, since your negligence caused the death of a man who merely left his car door unlocked. You are subsequently put to death for your negligence. - That is what happens when you don't THINK before you make policy. People like you are incompetent to lead.
	to forum · permalink · · 2003-11-18 16:57:26 ·
oliphant5 Got Identity? Premium join:2003-05-24 Corona, CA	reply to BosstonesOwn Do you have trouble reading? REASONABLE care. If you have a firewall up or have taken other basic measures then you aren't going to be gone after. You should actually READ the thread before replying to it. -- Don't get it, demand it! The Anime Network »www.theanimenetwork.com/index.html And something pretty good from the Cooler »elev.ru.orebro.se/ru0369/HAHAHAHA.MPG
	to forum · permalink · · 2003-11-17 17:42:04 ·
BosstonesOwn join:2002-12-15 Everett, MA clubs: ·Comcast	reply to garagerock even if the safe guards are taken there is bugs in software. what happens if they get by your firewall?? go to jail ?? come on. They need to waste money on other things like getting broadband to the masses. -- This package does not contain a winner...
	to forum · permalink · · 2003-11-17 17:19:47 ·
garagerock Premium join:2002-06-14 Louisville, KY	reply to garagerock My point was, and continues to be, that if you are ignorant of "intellectual" property that's someone elses handiwork on your computer, you are liable. Period. You cannot, under the premise of law, state "I didn't know it was there". That bullshit excuse doesn't cut it if you are caught with someone elses drugs, someone elses dirty money, weapons, etc. (Unless you work for government ) Some poor bastard who gets pulled over in his car and the cops find marijuana seeds in the ashtray, even if they weren't his, goes to jail. Why is this any different? Ignorance of the law is no excuse. If you didn't know it was illegal, you should take safeguards to ensure that this kind of material doesn't end up on your computer. It's that simple.
	to forum · permalink · · 2003-11-17 08:25:22 ·


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