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Yes, another example is the Domino Sugar trademark infringement suit against Domino's Pizza. The court found in favor of Domino's Pizza (i.e., not infringing). And this was a case of two food products. The key test is whether the same name use is "likely to cause confusion, or to cause mistake, or to deceive." If a court thinks there's little chance of confusing pizza and sugar, I think Google has a pretty good chance that someone won't confuse a fictional book character and a telephone.

Incorrect.

My! Aren't we intrepid.

As for Carbolic Smoke, it clearly doesn't apply

Dealing with this first. It was cited to show that you don't need to know the identity of the party with whom you are contracting in order to be bound. All joking aside, what do you mean "it clearly doesn't apply!?" Not only does it show that, it shows that you should have learnt this in your very first contracts lecture!

The right to run the software is not one of the exclusive rights included in copyright (see 17 USC 106).

Not contested.

Furthermore, the right to make copies incidental to executing the software is specifically permitted to the owner of a copy of the software (17 USC 117).

Indeed under 117(1) "the owner of a copy of a computer program" is allowed to make a copy for "as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." Thus images contained on one medium (eg. disk) that are loaded (copied) into another (eg. RAM) do not constitute the making of an infringing copy. As poor as the drafting may be, this at least is the clear intent of the provision.

I agree, at first glance, this would also appear to permit the purchaser of physical medium containing an OS to install (copy) the OS sans licence. You have to remember, however, the 117 only protects the owner of the copy. And you probably don't have unfettered ownership of it. Have a look at that cardboard box, does it anywhere contain indicating that your use for the product is subject to entering into a licence agreement? Being the careful guy you are, when you bought that box, you of course read that licence agreement. I mean who would hand over their money knowing that use was subject to an agreement without first checking it out, right? ;) Pay especial attention to the first clause!

This very point of law is currently before the court in Apple v Pystar. However, both you and Pystar face the same problem: there is ample authority suggesting that purchasers of physical media containing software, the use of which is expressed as being subject to licence, are not owners, but mere licencees, and are thus not protected by 117 (eg. Wall Data , MAI Systems , Adobe v Stargate , the last not being about 117 itself, but about the licencee status of purchaser.)

This, in turn, is the point of law on which MDY will be appealing in MDY v Blizzard. One should of course never second guess a court's decision, but it would be surprising if either MDY or Psystar were able to prevail against what appears to be the established authority. One thing I will predict, however, is that if these cases end as previous authority suggests they will, there will be a howl of idignation from slashdotters who have at best read the statutory provisions, but are otherwise bosltered only by their ignorance of the law surrounding them.

The shiny plastic disc is a copy of the software (17 USC 101).

Agreed, but note also under 202 that "Ownership of a copyright ... is distinct from ownership of any material object in which the work is embodied." It would seem a strange result if a specific exception such as 117 were able to be used as a backdoor to undermine this basic principle of copyright law! This is why 117, in speaking of "owner[s] of cop[ies]," confuses matters. It should have been preferred to grant exceptions to lawful users of said computer programs, irregardles of whether they are owners or mere licencees. Which only goes to show that one should never elect a non-lawyer into the legislature! ;)

Therefore I have the right to run it.

I feel for you dude! That must have fe

Incorrect.

My! Aren't we intrepid.

As for Carbolic Smoke, it clearly doesn't apply

Dealing with this first. It was cited to show that you don't need to know the identity of the party with whom you are contracting in order to be bound. All joking aside, what do you mean "it clearly doesn't apply!?" Not only does it show that, it shows that you should have learnt this in your very first contracts lecture!

The right to run the software is not one of the exclusive rights included in copyright (see 17 USC 106).

Not contested.

Furthermore, the right to make copies incidental to executing the software is specifically permitted to the owner of a copy of the software (17 USC 117).

Indeed under 117(1) "the owner of a copy of a computer program" is allowed to make a copy for "as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." Thus images contained on one medium (eg. disk) that are loaded (copied) into another (eg. RAM) do not constitute the making of an infringing copy. As poor as the drafting may be, this at least is the clear intent of the provision.

I agree, at first glance, this would also appear to permit the purchaser of physical medium containing an OS to install (copy) the OS sans licence. You have to remember, however, the 117 only protects the owner of the copy. And you probably don't have unfettered ownership of it. Have a look at that cardboard box, does it anywhere contain indicating that your use for the product is subject to entering into a licence agreement? Being the careful guy you are, when you bought that box, you of course read that licence agreement. I mean who would hand over their money knowing that use was subject to an agreement without first checking it out, right? ;) Pay especial attention to the first clause!

This very point of law is currently before the court in Apple v Pystar. However, both you and Pystar face the same problem: there is ample authority suggesting that purchasers of physical media containing software, the use of which is expressed as being subject to licence, are not owners, but mere licencees, and are thus not protected by 117 (eg. Wall Data , MAI Systems , Adobe v Stargate , the last not being about 117 itself, but about the licencee status of purchaser.)

This, in turn, is the point of law on which MDY will be appealing in MDY v Blizzard. One should of course never second guess a court's decision, but it would be surprising if either MDY or Psystar were able to prevail against what appears to be the established authority. One thing I will predict, however, is that if these cases end as previous authority suggests they will, there will be a howl of idignation from slashdotters who have at best read the statutory provisions, but are otherwise bosltered only by their ignorance of the law surrounding them.

The shiny plastic disc is a copy of the software (17 USC 101).

Agreed, but note also under 202 that "Ownership of a copyright ... is distinct from ownership of any material object in which the work is embodied." It would seem a strange result if a specific exception such as 117 were able to be used as a backdoor to undermine this basic principle of copyright law! This is why 117, in speaking of "owner[s] of cop[ies]," confuses matters. It should have been preferred to grant exceptions to lawful users of said computer programs, irregardles of whether they are owners or mere licencees. Which only goes to show that one should never elect a non-lawyer into the legislature! ;)

Therefore I have the right to run it.

I feel for you dude! That must have fe

Actually, reading the summary judgement order from the Glider case (MDY vs. Blizzard, http://virtuallyblind.com/files/mdy/07-14-08_Order.pdf ), they come up with some ninth circuit case law, from Wall Data vs. LA County Sheriff's Dept. ( http://altlaw.org/v1/cases/1139595 ), about who a "copy of a computer program" is owned by for the purpose of s. 117, that reads much like what coiledsnake was saying. From the Wall Data case: "Generally, if the copyright owner makes it clear that she or he is granting only a license to the copy of software and imposes significant restrictions on the purchaser's ability to redistribute or transfer that copy, the purchaser is considered a licensee, not an owner, of the software."

In the Wall Data case, the Sherrif's Dept. imaged Wall Data's software onto more systems than they had licenses for, and then used some management software to prevent more than the licensed number of copies from being used at once, despite the software's EULA having a specific provision that licenses could only be transferred every 30 days.

MDY vs. Blizzard interprets this as a "two-part test", which seems a little rich considering that the bit about "significant restrictions on the purchaser's ability to redistribute" only makes sense because the Wall Data case hinged on the EULA restriction on transferring of licenses. But at any rate, MDY vs. Blizzard also doesn't impose much of a standard for whether "the copyright owner makes it clear that she or he is granting only a license": they decide that since a EULA existed that itself said that "all copies of" the software, then the EULA must apply, and so the software is clearly licensed. (Whether or not the EULA was located in a filing cabinet in a disused lavatory with a sign on the door saying "Beware of the Leopard" was not discussed. =) ) But certainly if whoever installed the software had to click through agreeing to the license as part of the installation process, any court would find that it was clear to that person who did the install that the software is licensed, and that would probably meet this clarity standard.

It's not clear to me, that the Ninth Circuit has any idea what the remaining point would be of s. 117 under this interpretation, but at any rate... =)

So, as long as enough people were licensed copies of Blizzard's software and not sold them, and enough people who used MDY's software for its primary intended purpose would have broken their licenses by doing so, then MDY gets stuck with indirect infringement of some kind (for instance, contributory infringement).

When you send something via UPS or FedEx, you are giving your parcel to a 3rd party for storage and delivery.

I'm curious how US courts regard postcards. It seems to me that unencrypted email is more similar to a postcard than a package. I don't expect privacy for emails, not because I know how the law in my country treats that issue, but because I send them over a public network in plain text. Even if the law says it's private it still isn't.

A post under TFA: quotes "The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be." (Emphasis mine, I have reached a different conclusion than the poster who highlighted "wherever they may be" instead.

I've found a copy of the passage the quote came from, Ex parte Jackson http://www.altlaw.org/v1/cases/408308
Immediately preceding that is:
In their enforcement, a distinction is to be made between different kinds of mail matter,--between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.

It would seem to me that it is not inconsistent if there comes a judgement that email is not under 4th amendment protection and that to answer my own question, postcards probably aren't either.

I don't think so. I read at length about the name change at the time it occurred, and no licensing was mentioned. As I said, they had paid a San Francisco ad agency the whopping sum of 750 grand to come up with that name; I doubt they would have paid so much if a part of it required licensing! Further, AT&T now owns the domain telesis.info. And finally, there's this, the proverbial nail in the coffin:

http://altlaw.org/v1/cases/444211

PTG actually sued another company, International Telesis Communications, for service mark infringement. ITC lost, so perhaps they licensed "Telesis" *FROM* Pacific Telesis. You might have had it backwards.

Nominative use is the phrase you are looking for, and the "mechanic" precedent is Volkswagen V. Church. Same as I can make a piece of hardware and say "This works in Windows XP" but if I want the little "Designed for Windows XP" logo then I have to pay. Seems pretty fair to me, I personally want to know where the stuff I'm using is coming from. After all, if it wasn't for trademark protection what is to keep some domain squatter from getting a name close to Ubuntu and pushing a malware ridden distro AS Ubuntu?

Reading TFA (I know, but I got bored) it sounds like this guy is trying to cash in on the Ubuntu name and got pissy when they said he needed permission to splat their logo all over his site. Considering the fact that it IS for commercial use (even he admits that ) I can see why Canonical might have a problem with that. After all, I can't put out a book saying "How to make Windows Vista NOT suck. Really!" and cover it with MSFT logos and not expect MSFT to come knocking at my door. Why should Ubuntu be any different? Did he give the first draft to Canonical to let them make sure that any of his "tips" didn't end up causing problems down the line? I kinda doubt it. Considering the fact it is a "commercial project" (his own words) I think the folks at Canonical are being very fair. You know Apple or MSFT would have probably hit this guy with a C&D so fast it would have made his head swim.

There was a similar case in which a young girl was accused of posessing illegal drugs, and was forced to submit to a strip search. The search turned up nothing. However a court found that the search was legal because school administrators are only held to a standard of "reasonable suspicion," rather than "just cause." Strip searches are generally considered illegal searches, however they can be upheld in a court of law under four standards in the case of New Jersey v. T.L.O..

In the case of Angela Lee Williams, her property was searched to no avail over a period of a few days, turning up nothing. This search was conducted on the basis of an accusation by another student. The searches finally culminated in a strip search, by a female administrator with a female secretary present, which only required the student to disrobe to the extent that she was still wearing her underwear. The officials found nothing. Williams sued, and lost, based on the standards established in T.L.O..

Williams was accused of posessing a substance the school had previously identified as being problematic. The search was justified based on the accusation and based on the prevalence of substance abuse at the school.

I'm curious as to what case you're referring? Could you link me to it?

Nope. You just have to make a convincing case that you didn't have access to the work you're accused of infringing.

Mack's song was at the top of the charts, which made for a compelling argument that Harrison had access to it, even if the copying was subconscious. If Mack's song had received only minimal airplay, things might have turned out differently.

E.g., consider Roth Greeting Cards v. United Card Co.:

Since direct evidence of copying is rarely available, copying may be established by proof of access and substantial similarity. NIMMER 141.2 at 613. Although in some circumstances the mere proof of access and substantial similarity will not demand that the trier automatically find copying, the absence of any countervailing evidence of creation independent of the copyrighted source may well render clearly erroneous a finding that there was not copying.

If you had evidence that you had created your independently (e.g., in the form of earlier drafts or versions that lacked the some of the "substantially similar" characteristics), you might very well be able to substantiate independent creation.

Under U.S. copyright law, she's the creator and you are acting under her direction so your writing is her work, fixed in a tangible form.

NO.

Yes.

"[A] party can be considered an author when his or her expression of an idea is transposed by mechanical or rote transcription into tangible form under the authority of the party."

Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132 (3d Cir. 1991).
http://www.altlaw.org/v1/cases/545582

Lindsay v. R.M.S. Titanic, 97 Civ. 9248 (SDNY 1999).
http://www.coolcopyright.com/cases/fulltext/lindsaytitanictext.htm

Relying on popular knowledge of copyright law is a nice way to make someone else rich.

Outside? Outside what? Outside the lines of the students' legal rights? Schools, Colleges and Universities are not a magical place where their laws trump the law of the land.

Actually, they are.

Students are not protected by the 1st Amendment while on or even off school property.

Students are not protected by the 2nd Amendment while on school property. (numerous links, as you can imagine)

Students are not protected by the 4th Amendment while on school property.

Students are not protected by the 5th Amendment (Bartlett, Larry. Self-Incrimination and Public School Students, Journal of Law and Education, v15 n2 p167-80 Spr 1986).

Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.

What has that got to do with anything?

Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.

What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.

One noteworthy example of the utility doctrine being used was in Brandir, where the creator of those undulating bike racks tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.

I know it's popular to suggest that marijuana isn't that bad, and perhaps it is. But that's really not a judgment to make until the facts are in. It's been less than 20 years since the more potent varieties have shown up, and it would be surprising if there were any reasonable conclusion for at least a decade or two.

oh really * King LA, Carpentier C, Griffiths P. âoeCannabis potency in Europe.â Addiction. 2005 Jul; 100(7):884-6 * Henneberger, Melinda. "Pot Surges Back, But Itâ(TM)s, Like, a Whole New World." New York Times 6 February 1994: E18. * Brown, Lee. âoeInterview with Lee Brown,â Dallas Morning News 21 May 1995. * Drug Enforcement Administration. U.S. Drug Threat Assessment, 1993. Washington, DC: U.S. Department of Justice, 1993. * Kleiman, Mark A.R. Marijuana: Costs of Abuse, Costs of Control. Westport: Greenwood Press, 1989. 29. * Bennett, William. Director of National Drug Control Policy, remarks at Conference of Mayors. 23 April 1990. Higher potency say nothing, absolutely nothing about safety. A larger amount of a safe chemical in a plant leaves less room for other shit. http://www.uccs.edu/~rmelamed/Evolutionism/medical_uses_of_cannabinoid_2/aging_2/thc_toxicity.html http://www.bio.net/bionet/mm/toxicol/2003-February/003377.html http://www.altlaw.org/v1/cases/417545

You can't copyright a game. Hasbro is suing them over the trademark. Scrabulous should have used a name that doesn't sound like Scrabble, then there would be nothing Hasbro could do. Perhaps Scrabulous could change their name to Crapple.

Well, according to the written law you can't trademark a game in general either. All you can protect with trademark law is a mark that enables the general public to identify a single source or manufacturer of products versus others of a similar type. If Scrabulous can successfully prove in court (once and for all) that the general public identifies the name "Scrabble" with the game in general (that is, its functional, non-copyrightable, game mechanics, the kind of stuff that could be/has been patented) and not with Hasbro's particular brand of Scrabble, then they can win their case. I'm not sure if there has ever been a case where this has been clearly tested in court one way or the other, since the big IP owners always seem to end up 'settling' with the little guys before it's ever fully decided.

See for example Anti-Monopoly, Inc. v. General Mills Fun Group for some intelligent legal discussion regarding the "monopoly" trademark and how the genericness test for game trademarks could be applied in general. Read the fictitious example on "EN PASSANT". (The Anti-Monopoly case went all the way to the Supreme Court, but then Parker Brothers bought out their opponents before they lost their precious trademark.)

See also this earlier Scrabble trademark case, where the dubious legal grounds of the trademark is suggested, but never fully tested. From the ruling: "The extent to which [SCRABBLE] has come into general use to describe a game or games rather than their origin or source of supply is fairly open to proof." And finally: "We express no opinion on the merits of S&R's claims."

Basically, if these guys find some lawyers who actually have a clue about the relevant law they might have a chance, but chances are they'll just buckle like most other small companies in the face of corporate behemoths. I mean come on, the combined legal weight of Hasbro AND EA coming down on them? These guys wouldn't stand a chance in hell even if their game was named "zzyzx".

Oh, I know Apple is an overly-litigious company, but the Steve Jobs genuflecting tards on this site think Apple is the Golden Child who can do no wrong.

That being said, they probably have a case. OTOH, in this case, DataGeneral, who did the same Apple does (tied the OS to the hardware), was found to be in violation of the Sherman Antitrust Act -- i.e., 'illegal tying'. You know. Like what Microsoft was successfully sued by DOJ for.

It really doesn't give them that option, except insofar as it might make someone think they have that option, which is the whole point.

I think they would run squarely into this issue ("you don't own this Victrola, we do, and we're just leasing it to you, so you have to do whatever we say").

It's easy to print scary notices on things; it's harder for them to actually be valid.

This is completely wrong. The owner of a copy CAN rent that copy without permission of the copyright owner, with two exceptions: software and "phonorecords." See 17 U.S.C. 109.

Here, for example, is a case questioning whether somebody can rent audiobooks, and concluding that doing so does not violate copyright: http://altlaw.org/v1/cases/1141914.

Good point. I've had to remind people of this in the past, although in a bit different text. The best quote I've found, written by Justice Frankfurter:

Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. STATE OF MD. v. BALTIMORE RADIO SHOW -- 338 U.S. 912