3 ms·

> "if there are no examples of the principle" it's a big stretch from "I didn't happen to describe any perfectly" to "there aren't any". > "an offense can be

• thaumasiotes 12y ago
  > changing IPs is OK and accessing a website is OK, but when you've received a C&D letter and you circumvent an IP ban, that's lawsuit-worthy I don't see how this differs from the situation of entering a store while banned (and optionally disguised). It's quite clear that visiting the website was an offense regardless of IP cloaking. > Craigslist gave the world permission (i.e., “authorization”) to access the public information on its public website. Then, just as Brekka instructed that an “authority” can do, it rescinded that permission for 3Taps. Further access by 3Taps after that rescission was “without authorization.” > The banned user has to follow only one, clear rule: do not access the website. The IP ban was considered evidence that the requirement to stay off the website was properly communicated, but the C&D is surely sufficient for that purpose. (Orin Kerr actually blasts the judge for misunderstanding the law, saying that in his [Kerr's] view accessing the website after receiving a C&D would not in itself be an offense... but the judgment is officially the law, and Orin Kerr isn't.)
  • lotharbot 12y ago
    All of these are examples of actions which could be described in ways that make them sound like non-offenses (ie, a sequence of individual actions which don't sound like offenses if you ignore the context) but which are actually offenses when you look at all of the actions together. You can misleadingly describe 3taps' actions, entering a store you've been banned from disguised, or luring someone to the forest to shoot them, in ways that make them sound legit (please don't be that guy who takes issue with my not presenting them cleverly enough; you don't pay me enough to take the time to make the analogies airtight.) Taking this back to the original point about Monsanto: it's not legal to isolate their seeds and then grow them while using roundup, without first paying the fee to have their patented roundup-ready seeds. Because it's illegal to skip the license fee. Several layers of posts back, you described certain farmers' actions in ways that sound legit, but when you take the actions all together they're clearly attempting to use the special properties of Monsanto's seeds without paying, which is illegal.
    • thaumasiotes 12y ago
      This is going to begin in a somewhat disorganized fashion. You can "misleadingly describe" something by leaving information out, as when I describe fatally shooting someone as "discharging a firearm". But that isn't just phrasing something in a way that makes it sound better, that's leaving information out. In all the examples you've discussed, one of the component actions is a violation on its own; it's not possible to decompose them into actions which are actually innocuous (as opposed to "phrased to sound innocuous"). There is an element of illegality which remains present as you decompose the offense. That isn't true for the case of spraying your legally-obtained Roundup-ready wheat with Roundup. It appears to me that the reasoning here goes "if we do the obvious thing, a patent on Roundup-ready wheat will be worthless, and so therefore we need to contort the legal system until such a patent has value". But that isn't even a legal principle; it's quite possible to obtain various privileges through the legal system such that the normal benefits of those privileges cannot be extracted (even if I have a trademark on White (tm) brand paper, I can't stop other paper vendors from calling theirs white). The need to contort the legal system is an indication that patents on wheat varieties are a bad idea. At root, this is because wheat has volition of its own; it wants to spread. There is analogous law for animals which makes the owner responsible for what (say) his dog does; if that system were adopted here, the licensed RR-wheat grower would be liable for something like facilitating or contributing to patent infringement. I've assumed that a situation where a crime can be decomposed into parts that are entirely legal represents an undesirable twisting of the legal system. The closest analogy I know is the crime of blackmail, which is composed of entirely legal actions (if you threaten to do something illegal, it's actually a different crime, extortion). Legal scholarship is divided over blackmail; many people don't think it should be criminal at all precisely because it involves taking only legal actions. This establishes a couple of things: (1) Even if you don't think there's any value in the principle "two non-crimes don't make a crime", a lot of people do, which makes it a very reasonable criticism of a situation that violates it, and (2) crimes of this kind are extremely unusual, which means it's definitely worthy of comment, and requires a little more justification than a typical law. All of that is basically by way of saying the judgment represents a bad idea, and atypical law. The difficulties involved in giving meaning to a wheat patent suggest that we shouldn't try -- it's the same argument you see against drug and alcohol prohibition, price controls, commanding the tide to recede, etc. Going back to the original comments, I responded to someone saying that "Monsanto has sued someone for having his neighbor's seeds blown into his field, and won" was untrue. I maintain that the person I responded to was wrong, and his parent was correct, because it is acknowledged by all sides that, if his neighbor's seeds hadn't blown into his field, Schmeiser, taking the same actions he did take, would not have been violating Monsanto's patent. The germination of his neighbor's wheat, over which Schmeiser had no control, transformed his legal action into a crime.