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Domain: bitlaw.com
Stories and comments across the archive that link to bitlaw.com.
Comments · 349
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Limitation on exclusive rights: computer programsFirst sale doctrine says you're free to do whatever you want with the physical disc; it doesn't say anything about the licensed content therein. That's the job of 17 USC 117 and foreign counterparts.
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Re:No wonder Apple wants to stop PsystarCourts really do frown upon lopsided unsigned pre-purchase contracts. Sources, please? The only case I know of on the subject decided that shrink-wrap licenses are enforceable.
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Re:Terrorism
If a secrecy order is imposed, the START of the patent term is the date that the secrecy order is lifted. http://www.bitlaw.com/source/mpep/120.html
Bzzzttt! Try again. If you read MPEP 120, which you linked to, you will note that it is the notice of allowance that is kept from being sent out. Action is suspended until the secrecy order is lifted. In other words, there is no patent until the secrecy order is lifted. So, the one in the NPR article which was filed in 1944 and became a patent in 1955 would have expired in 1972. I guess it took 11 years to become a patent since there was a secrecy order preventing that. The patent itself would not be a secret. And considering that the patent I am referring to is published on NPR and is a patent you can find publicly: [linky], it is obviously not classified anymore. -
Re:Terrorism
Even though you obviously missed the point of the GP's post, I'll also tell you that you're probably wrong about the patents being expired.
If a secrecy order is imposed, the START of the patent term is the date that the secrecy order is lifted. http://www.bitlaw.com/source/mpep/120.html
According to TFA, the patent on the bomb hasn't been declassified, so, presumably, there would be a patent still once it was granted. -
Re:Uh. Hardware is not software...
Interesting that you got modded up for this: because your statement is basically false. Mask works are not copyrightable and instead are held under a separate portion of intellectual protection law. In fact, if the mask work has a (C) copyright symbol, that's totally wrong. It needs to be an (M). Licensing has some gotchas as well; I would not rely on any current software license for a mask work.
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Re:The catch with CCSo what happens when Google Images shows [CC-by-nc-*] pics as search results with ads on the page? That's commercial use isn't it? It's also commercial use when Google Images indexes and thumbnails search results from sites that have predominantly all-rights-reserved images. Either way, it's more than likely exempt from copyright. An argument under US law, for example, would use fair use (17 USC 107) and the search engine rule (17 USC 512(d)). What defines commercial use? CC-by-nc 3.0 and the other nc licenses spell it out. I'll quote the relevant section to make it easier for all of us to RTFL: You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. I'm assuming that case law defines "commercial advantage".
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Re:The catch with CCSo what happens when Google Images shows [CC-by-nc-*] pics as search results with ads on the page? That's commercial use isn't it? It's also commercial use when Google Images indexes and thumbnails search results from sites that have predominantly all-rights-reserved images. Either way, it's more than likely exempt from copyright. An argument under US law, for example, would use fair use (17 USC 107) and the search engine rule (17 USC 512(d)). What defines commercial use? CC-by-nc 3.0 and the other nc licenses spell it out. I'll quote the relevant section to make it easier for all of us to RTFL: You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. I'm assuming that case law defines "commercial advantage".
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Re:thepiratebayIs it really _illegal_ in USA to download (and _not_ upload) music/films?
Yes, it is an infringement to reproduce an unlawful transmission on your computer's storage. But such infringement appears not to be subject to legal action (17 USC 1008) as long as you eventually back up the downloaded tracks to a "digital audio recording medium", which is defined by law to include blank media sold as "music CD-R".
Incidentally, there is a subtle difference between something being not an infringement, like fair use, resale of copies, or backups of computer programs, and something being non-actionable infringement. It may affect a few corner cases elsewhere in copyright law.
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Re:Quick Points
Lost my link; the quote is from: http://www.bitlaw.com/copyright/license.html
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Re:Sony won't have to release source code to game.The GPL is about distribution. No, the GPL is about copyright. It's about both. The GPL is fairly permissive when it comes to exclusive rights in copyrighted works other than "(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending".
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Re:Are emails copyrighted?
A work has to be registered for you to sue for copyright infringement but it doesn't have to be registered before the infringement takes place before you sue. It does, however, need to be registered before the infringement takes place to be able to get statutory damages. See 17 USC 411 & 412.
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Re:Yay DRM.
Not necessarily. At least one court has found that a shrink wrap license is enforceable.
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Re:My PSP story (since others are sharing)the law considers you stealing the intellectual property of Sega and Nintendo.
First, a point of rhetoric: The U.S. copyright statute (Title 17, U.S. Code) doesn't call infringement "stealing"; it calls it "infringement". And copyright statute doesn't call copyrights "intellectual"; it calls them "copyrights".
Besides, doesn't the act of deliberately taking a work out of print make a statement about the copyright owner's idea of "the potential market for or value of the copyrighted work", or more specifically, the lack thereof?
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17 USC 602There's no law that lets you forbid importation of products. Then what's Title 17, United States Code, section 602, and foreign counterparts? I'm sure you'll find that the staff of Valve is wearing imported clothes, taking advantage of cheaper things overseas. Imported clothes that the copyright, patent, and/or trademark owner has specifically authorized for importation. They probably shop at Walmart. Wal-Mart stores carry products that the copyright, patent, and/or trademark owner has specifically authorized for importation. They're hypocrits, willing to take advantage of globalization to increase their own profits, but they sabotage the product to prevent you from doing the same. They're not hypocrites. They're copyright owners.
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Re:Firehose antics...
"If a "provisional" nonstatutory obviousness-type double patenting (ODP) rejection is the only rejection remaining in the earlier filed of the two pending applications, while the later-filed application is rejectable on other grounds, the examiner should withdraw that rejection and permit the earlier-filed application to issue as a patent without a terminal disclaimer."
Clear now? -
17 USC 117; nine non-Exidy ROM setsyou cannot use the ROM off any medium other than the one it was intended for, ie the Game Board. In what country? As I understand it, if the owner of a game board dumps its ROM to play on a computer, U.S. law (17 USC 117) considers this dumping an essential adaptation and thus not an infringement. There is also 1 rom placed in the public doamin by the author and 2 more of questionable origin. See the MAME site for more info. That was then, when Gridlee and Robby Roto were the only ones. Since then, Exidy has licensed nine of its old ROM sets for non-commercial redistribution. Not to mention that you can use these 'MAME' cabinets to play hundreds of other LEGAL PC based computer games like Quake, Unreal etc or any other game that fits into the cabinet paradigm. Unfortunately, too many PC games do not fit into cabinets. I'd love to something else to play on a 4-player cabinet like that used by Teenage Mutant Ninja Turtles, perhaps something like Super Smash Bros., but too many PC games are designed for only one player per machine.
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Exhaustion of distribution right after first saleI've never understood why libraries are allowed to lend out copyrighted works to anyone without reprisal from the *IAA. Because brick-and-mortar libraries buy and lend existing copies, rather than reproducing them for each patron, their activities fall under the protection of 17 USC 109 and foreign counterparts.
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Last week me not spel patent xmainer now am 1
> a Amazon Simple Storage Service.
In Computing, Simple == Obvious. Patents should be new, useful, novel and not-obvious. http://www.bitlaw.com/patent/requirements.html
S3 has been done before and often and like Amazon's previous patents, this one has a high "Duh" factor. But Amazon must know that. The problem with patents and laws in general is that big companies and government know they can do something wrong and get away with it for a long time. Even if it's reversed in the distant future, mission accomplished.
I dream of a day where computing systems are designed by computer scientists, not lawyers. -
17 USC 602Even just buying an original DVD from Japan to play on your imported PS2 counts as piracy for Sony, or at least they'll try to handwave it as such. See Title 17, United States Code, section 602, which bans importing more than one copy of a game. This means that imported handheld games and those imported console games that lack split-screen mode have no multiplayer. The excuse on movie DVDs was that it eats into theatre ticket sales: someone who bought the US DVD early has often seen the movie that way before it even gets into the theatres. And because some movies are based on underlying works, and copyrights on these underlying works expire at different times in different countries. For instance, Peter and Wendy and other pre-1923 works in the Peter Pan universe are public domain in the United States, but they are copyrighted in the European Union until the end of this year, and they are copyrighted in the United Kingdom until Great Ormond Street Hospital goes out of business. In this case, region 2 DVDs would be subject to a royalty payable to GOSH, but region 2 DVDs would not. OK, I can even live with that mercantile reason. But that just simply doesn't apply to games. There simply is no big-screen theatre version of, say, Gran Turismo. At one time, the video game industry's counterpart to theatrical release was arcade release. In the case of Street Fighter II and its clones, this was true for a long time. Sony got my money fair and square there.
But Sony Computer Entertainment America stole your money from Sony Computer Entertainment Europe.
Still, PSP and PS3 are largely region-free for gaming.
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Re:Fair enough - tax refunds?The NCAA controls broadcast rights for their games. This has been tested in court. But not in the way you think. We hold that Motorola and STATS have not unlawfully misappropriated NBA's property by transmitting "real-time" NBA game scores and statistics taken from television and radio broadcasts of games in progress.
The National Basketball Association v. Motorola, Inc. The only difference here is that Moto was using 2nd-hand information and the blogger was using 1st-hand. You might try to argue that 1st-hand vs 2nd-hand makes a whole world of difference, but the end result is exactly the same in either case. -
Re:When you buy a new PC...
Copyright law deals with the right to Make and Distribute copies.
As mentioned earlier here You have the right to make copies necessary for the utilization of the software, and as such no license is required to use it. For one thing, it would be stupid to buy software, and have the author claim it didn't come with an (implied, at least) license to use it. Fortunately, you don't need one anyway. -
Re:When you buy a new PC...
The legal technicality that is used by software is that copying the program from the install media to your disk and then to RAM requires extra rights (not valid in all jurisdictions).
And America is one of those jurisdictions where you have those rights anyway. -
Re:constitutional lawyers?
Read this.
Basically, the constitution contains an abstract concept of protection of "writings or discoveries" (now called "intellectual property") and states that Congress has the authority to establish laws that protect these to "promote the progress of science and useful arts."
Some things I notice here are...
- Science must be making progress in order to be promoted. DRM is regression of rights, thus it cannot be protected.
- Arts must be useful to be protected. I doubt entertainment can be considered "useful" in the way that was meant when the Constitution was written.
- Newer forms of media are not "writings" nor are they "discoveries". They cannot be protected.
- Algorithms are discovered, and thus, they can be protected.
- Trademarks are not even considered to be part of this framework.
In other words, everything you knew about patent, trademarks, and copyrights is probably wrong. Unfortunately, getting someone to apply this correctly now is going to be facing an uphill battle. -
Statutory damagesif he's basing the fine on (SumOfIllGottenGains)*x%, even if that X is 500, 500% of zero is still zero. Not according to 17 USC 504, which gives a formula for statutory damages.
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When copyright law bans parallel importYou can always import - that wouldn't be illegal (at least, not technically) In some countries, the exhaustion of exclusive distribution rights under copyright after the first sale applies only to distribution within a country. For example, Title 17, United States Code, section 602 appears to prohibit importing more than one copy of a given work. Tough cookies if the game is for Game Boy, Game Boy Color, Game Boy Advance, or Nintendo DS, and you want to play multiplayer mode. With import stores dotting the internet, there's no excuse to outright pirate anything - not even games that aren't available in your region. You need to mod your console to play imports, or you need to buy three consoles. Which are you suggesting?
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Re:prior art searching
An application isn't assumed valid, however, according to 35 USC 101, the inventor of a given invention "may obtain a patent therefor, subject to the conditions and requirements of this title". Translation, if you submit an application, barring minor informalities in the application itself, it is up to the examiner to show the invention is not eligible for a patent.
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Re:How to Circumvent GPLv3 v1 DRAFTWhat part of a "distributor" undertaking actions to "distribute" copies of a work does not sound like "distribution" to you?
Yes, distribution is in fact one of the rights held only by the copyright holder and those licensed by the copyright holder. In fact, distribution is one of the rights afforded exclusively to the copyright holder and licensees under US copyright law and under the WIPO and WCT treaties. So if you don't follow this license, you can't _distribute_.
Bitlaw page about copyright
US Copyright Office
Wikipedia page on copyright
Findlaw's copyright page
Wikipedia WIPO page
Dutch copyright law page on Wikipedia (in English)
Japanese copyright law chapter II (note section 3, subsection 3) (translated to English, obviously)
The entry for the terms in the Table of Contents for the GPL v2 is called "TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION".
Here's the fourth paragraph of Preamble of the GPL v2, and notice it doesn't say "if you are the one to make the copies you distribute" anywhere:For example, if you distribute copies of such a program, whether
gratis or for a fee, you must give the recipients all the rights that
you have. You must make sure that they, too, receive or can get the
source code. And you must show them these terms so they know their
rights.
Notice that it doesn't say you have to have modified it to be bound by the license.
Here's paragraph 5 of the license proper (emphasis mine):5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.
The only reason the license repeatedly says "copy and distribute" is that it is granting both rights. It is not because the two are separable and you must agree to the license only if you do both. -
Re:War is peace
GPL doesn't restrict anything. Copyright laws do. GPL, as the L in the initials says, is a license that exempt you from the no-distribution no-derivative-work limitations that is the core of the copyright concept, as long as you agree with the GPL conditions. How can people distort that simple reality and say GPL restricts freedom is a mystery to me.
Well said.
It is simple as that. Without GPL, fair use aside, you cannot (legally) use, you cannot derive, you cannot distribute.
Actually, you don't need a license to merely run software you've legally acquired. See 17 USC 117. That's why the copyright lobbies keep making the inane argument that when you walk into a store and exchange money for a product, you don't actually own anything. -
Military secret, not a political problem
The reason given for the fact that the boots were not commercialised before the fall of the Communism was that they were classified as a military secret. Very frustrating for the inventor, but nearly all western patent regimes allow the government to classify any invention as a military secret - in the US they're called "Secrecy Orders" - see http://www.bitlaw.com/source/mpep/120.html and http://patentbaristas.com/archives/2006/12/06/is-
t he-government-keeping-more-inventions-secret/ for more information.
Better yet, there's obviously no way we can know how many inventions are covered by such orders, or what they cover.
Note that this has nothing to do with Communism or capitalism, which is the thesis the author's trying to build. The R&D regimes are actually identical: invent something militarily useful and it will dissappear from public knowledge. -
Re:PlayStation consoles break.I haven't seen any precedence to support this but I think that downloading ROMS from the Internet (even if you own the game) is in a gray area, at best. Putting ROMs, ISOs, and UDFs on the Internet is copyright infringement. But in the United States, installing (i.e. copying) an authentic game disc to a PC hard drive is not infringement per 17 USC 117 as long as the end user operates the copier himself and does not distribute the copy. It's easier to be within epsilon of legit when emulating the PS1 because most PS1 emulators support reading the game directly from the authentic game disc. Remember that Connectix and Bleem defeated Sony Computer Entertainment in court; the victory was pyrrhic for their investors but set legal precedents.
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1201(a)(2) as well as contributory infringementIt may infringe other aspects of the law, but it in no way resembles a motion picture so can hardly violate copyright.
As I read 17 USC 512(3)(A)(i), notice and takedown provisions that refer to "an exclusive right" do not refer solely to exclusive rights defined by section 106 but to any exclusive right in a copyrighted work. Furthermore, 512(3)(A)(i) mentions "[i]dentification of the material that is claimed to be infringing or to be the subject of infringing activity" (my emphasis), which appears to cover contributory or vicarious infringement allegations.
So the movie studio's response would look like this: "We are aware that the infringing work itself is not a copy of our motion pictures. However, the infringing work is the blueprint for a circumvention device, which directly infringes our exclusive right to control access to our works subject to 17 USC 1201(a)(2) and contributorily infringes our exclusive right to reproduce and distribute our works subject to 17 USC 106."
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200 years? It's closer to twenty.
It's a proven system, over 200 years old.
You might want to check up on your history. Parts of the patent system may be a couple of centuries old, but software patents aren't in that class. Until 1980 the Patent Office didn't allow software patents at all until it was forced to do so by the Supreme Court. Even that wasn't really a "software patent" in the sense that Amazon's one-click patent is; it was just a computer program that was part of a larger invention. Unfortunately this bone-headed decision has blurred the long-established principle that ideas can't be patented. Since computer code is basically just the instantiation of an idea, software patents make ideas patentable. That has led to further deterioration by allowing things like business methods to be patented. So now you even have these clowns claiming that story plot lines can be patented.
The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems.
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Re:Time for USA to fix its patent system
No, a rubber company was the first to get a software patent. See: Diamond vs. Diehr:
http://www.bitlaw.com/software-patent/history.html /
See also:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=US&vol=450&invol=175/ -
Copyright infringement, not theft
All these responses and we're still just arguing English semantics. The legalese is apparently quite clear. Pre-air distribution (besides being a breach of the Right to Distribute) is also a breach of the Right to Perform. Details at Bitlaw. Since the infraction is copyright infringement, it is not theft.
From an ethical standpoint and specific to the copyrighted material being discussed, the infringement on the Right to Perform is damaging to the copyright holder (FOX). It translates directly to a very real loss in advertising revenue. I don't see any issue with FOX going after this infringement, and I don't see how YouTube's refusal to cooperate would have been a good PR move. I fully support this guy being busted for pre-air distribution and I don't see that the law did anything unethical to bust him.
That being said, I hope we don't see FOX going after people for distributing the same episode after it has been aired, since I can't see such an infringement translating into real revenue loss for FOX. -
Re:The important part is the proof!
They use a Neb-Bot to scan ant automatically send accusations (a few dollars a day), then you and your service provider sorts it out. The time and cost is moved from them to others
They probably do do this. And I hope that someday someone starts a business with a business plan similar to this (after running it by a lawyer of course):
1) Make a DIXV consisting of a 'Fair Use' sized clip of a work, followed by a 115 minute review/dicussion of the work in question, by definition their own copyrightable work independent of the copyright of the work reviewed.
2) Have a technically proficient Notary Public (or such) review the DIVX and determine the exact hash it would have under bit torrent. Witness and date that fact.
3) Put up DIVX as torrent via a friendly ISP including in the name the work being reviewd. Keep a log to prove that the file being shared is always the one witnessed in step 2.
4) Wait for take down notice by bot. ISP shuts down torrent.
5) DIVX owner sends letter to sue ISP for big bucks.
6) ISP official notes that DIVX is not what notice giver claimed it was. Making it actionable under DMCA Section 512 (f)
7) ISP sues notice giver under DMCA 512 (f)
8a) if win, PROFIT! ISP keeps 'fee', DIVX owner gets award.
8b) if lose, ISP officially apologizes to DIVX owner. Owner accepts and settles for $1 out of court.
It'd be the notice giver's own fault for losing if they did not take due dilligence for checking what they wanted taken down before makeing the misrepresentive claim. The cheap 'bot' solution would no longer be cheap. -
I'll give you BUZZZTT Wrong!
copied directly out of someone's comments on Micheal's blog:
II. CONDUCT A THOROUGH SEARCH OF THE PRIOR ART
Prior to classifying the claimed invention under 35 U.S.C. 101, Office personnel are expected to conduct a thorough search of the prior art. Generally, a thorough search involves reviewing both U.S. and foreign patents and nonpatent literature. In many cases, the result of such a search will contribute to Office personnels understanding of the invention. Both claimed and unclaimed aspects of the invention described in the specification should be searched if there is a reasonable expectation that the unclaimed aspects may be later claimed.
check 37 CFR 1.501 Citation of prior art in patent files.
http://www.bitlaw.com/source/mpep/2106.html -
GPL and EULAs in US law vs. UK lawThe Free Software Foundation's position (I mailed them and asked) is that once you have a copy of the software you OWN it, the way you own a book or a TV or a car, copyright (and thus the GPL) only applies when you make a copy to give to someone else.
You're right. Unlike the typical proprietary software EULA, the GNU General Public License does not take away material rights of the owner of a copy, such as rights under Title 17, United States Code, sections 109 (right to resell a copy; right for nonprofit libraries to lend a copy) and 117 (right to copy computer software into RAM and to make backups). But unfortunately, United Kingdom law does not have anything directly corresponding to 117, so in that country, the GPL applies to plain users.
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GPL and EULAs in US law vs. UK lawThe Free Software Foundation's position (I mailed them and asked) is that once you have a copy of the software you OWN it, the way you own a book or a TV or a car, copyright (and thus the GPL) only applies when you make a copy to give to someone else.
You're right. Unlike the typical proprietary software EULA, the GNU General Public License does not take away material rights of the owner of a copy, such as rights under Title 17, United States Code, sections 109 (right to resell a copy; right for nonprofit libraries to lend a copy) and 117 (right to copy computer software into RAM and to make backups). But unfortunately, United Kingdom law does not have anything directly corresponding to 117, so in that country, the GPL applies to plain users.
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Re:GPL is NOT an agreement
You're both right; it's only your first sentence 'Quite wrong.' that's incorrect.
The GPL is the document that grants the right to have your own personal copy of the code, but it's unconditional; you don't have to accept the GPL, or do anything else that would constitute 'agreeing' to it. Everyone has the right to have GPLed software on their machines, granted by the GPL, whether they accept the GPL or not.
However if they don't accept the GPL, they don't have the rights to modify or distribute or distribute modified versions of the software. Those rights are only offered on a conditional acceptance of the terms in the GPL (which they 'accept' by attempting to exert rights that only copyright law grants). So he's right and you're mostly right.
(Oh, and for the record, if you, say, have a copy of the code on a CD-ROM, then it's not just the GPL that necessarily gives you the right to have 'a copy of the code on your machine'; around the world, there are laws similar to 17 USC 117 that deny the copyright holder the right to prevent you running code you're in possession of) -
You've misunderstood guideline 4 of fair use
One of the tests of Fair Use is "the effect of the use upon the potential market for or value of the copyrighted work." Obviously the use was intended to have a negative impact on the market value of the show and therefore fails the fair-use test.
That's a serious misinterpretation of the intent. Let's take a look at the full fair use guidelines:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
They're general areas to be considered, not simple binary tests to be applied. Note that the four are to be considered together as factors, not as a series of independent cases. Also note that it doesn't reference the fair-use-claimant's intent.
Your reading of guideline 4 is completely wrong. With a reading of "if the guideline is relevant then it's not fair use", how do you interpret guideline 1? It's not fair use for commercial or nonprofit educational use? I guess fair use only exists for for-profit educational use. How about guideline 2? No fair use of nature photography? No fair use ever because every copyright protected work has some sort of nature?
Ultimately by your reading of guideline 4 there is no fair use for reviewers ever. The entire purpose of a review is to impact a product or service's market value. That's obvious nonsense in light of the law specifically says that fair use exists for, "criticism, comment, news reporting".
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UMG v. MP3.comHe downloads roms of all the games he has.
At $750 to $30,000 a piece. The fact that you own a copy is no defense. Only using a copier yourself is the lawful way to get commercial games into a PC based emulator.
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Re:Trademark
Actually "Toyoda" is an old Japanese family in Nagoya, one member of which is the founder of Toyota. What we know as Toyota today grew from "Toyoda Automatic Loom Works" so the name wouldn't really by an issue. It would be hard to argue there is dilution here because in his case the public knows from his family name where he is from and his relation to Toyota. http://www.bitlaw.com/trademark/dilution.html
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17 USC 117
You may not copy a work to your computer's disk, to its RAM, or portions thereof to its cache, processor and other components without permission.
Get real. I quote from Title 17, United States Code, Section 117:
Notwithstanding the provisions of section 106 [17 USC 106], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
- that such a new copy or adaptation is created 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
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Re:Why SMALL businesses reject software patents
fault is not with the USPTO
from MPEP 2142 http://www.bitlaw.com/source/mpep/2142.html"The examiner bears the initial burden of factually supporting any prima facie conclusion of obviousness. If the examiner does not produce a prima facie case, the applicant is under no obligation to submit evidence of nonobviousness...the examiner must then make a determination whether the claimed invention "as a whole" would have been obvious at that time to that person."
At which they have failed miserably to date. If the MPEP is the rope of the upon which this dead and stinking albatross hangs from our necks, it needs to be changed. Because the majority of the current applications are for gaming the system and primarily to impede a competitor and/or build a defensive patent portfoliio to be bartered when accused of infringement by other weasals gaming the system. There is foul layer of "intent to deceive" underlying most of these players. There MUST be an assumption of obviousness and that an APPLICANT must present documentation showing a reasonable effort to research the absence of prior art for those aspects which they claim are novel. There should also be HEFTY PENALTIES (how about their last patent released to the public domain.) when that research is shown to be wilfully deficient.
In an ideal world, as concieved by our founding fathers, patents served a useful purpose for both the SMALL inventor and the public, it has not scaled well to todays flood of bogus concepts. Without a complete and total overhaul (unlikely) it no longer serves its intended purpose because it was predicated on honest and straight forward application submitted by inventors raised on a tradition of honor and ethics, both of which are usually lacking in the modern corporate person.
I am afraid that the analogy with plumbers and carpenters is still very much apropos, to a 'person of ordinary skill in the art' 'the claimed invention "as a whole" would have been obvious'. That rise/run is equally applicable in stairs as well as roofs or that it takes 4 elbow joints to route around an obstacle are (pardon the double negative) not non-obvious concepts. -
Re:Why SMALL businesses reject software patentsSorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.
This may be true but this has nothing whatsoever to do with the term "obvious" in the US patent system."Novel" means that a single piece of prior art describes the invention. We're all on the same page here. There is incredible confusion about the term "obvious" in the US Patent system. It means that, at the very least, the invention is fully described in two or more pieces of prior art (plus some requirements that I'll skip for brevity). There is no "simplicity" aspect of "obvious" in this US Patent system.
"Obvious" in the US patent system only means that if you could combine two or more pieces of prior art, then the invention would not be "novel". It does not mean that "simple" inventions are unpatentable.
And you can read this for yourself straight from the USPTO's manual for patent examiners: MPEP 2143. I'm referring specifically to the third requirement at that link. The other two are important, but if you cannot find every piece of the invention in the prior art, then it is legally non-obvious. There is no such thing as a "simplicity" or "complexity" requirement.
In other words, according to law, if the plumber or the coder solved a routine problem with a solution (or a piece of a solution) that cannot be found in the prior art, that is an invention. Maybe he was the first programmer to horrifically abuse a loop iterator in that particular fashion. Hey, maybe it's a dumb invention, but if it's not in the prior art, it is an invention.
Now, as a separate topic, you might be completely right that this causes problems. However, the fault is not with the USPTO - they enforce law and policy as it is delivered to them, no matter how poorly understood that system is here on Slashdot. Whether this situation is good or bad I'm not going to entertain at length. I just want to point out that your conclusion, that plumbers and coders solving problems is "obvious", is not relevant to the definition of "obvious" in the patent system.
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Re:Or maybe it's just a GOOD government in action.
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Re:Or maybe it's just a GOOD government in action.
Sorry, no contract is legally binding if you're not allowed to read it before purchasing.
At least one federal court disagrees. -
Re:Which of the following are illegal ?
1) Trading CDs via US Mail
Legal. This is basically the first-sale doctrine.
2) Ripping CDs that I own to mp3, and playing them on my computer.
2a) Backing up CDs to mp3 on my computerLegal as long as you follow the provisions of the Audio Home Recording Act. Your equipment and media (computer and hard drive) must have royalties paid on them and they must not permit serial copying (making a copy of a copy). Also, the copies must be for non-commercial purposes.
3) Ripping CDs that I own to mp3, and then putting them on my mp3 player for my own personal use.
Same as 2) above.
3a)Loaning the mp3 player to my friend with the ripped music from question 3
Legal. You acquired the mp3s legally under the AHRA. Loaning the player to your friend does not violate any of the excluse rights granted to the copyright holder.
4) Borrowing a CD from the library, ripping the CD to my computer and listening to the music on my mp3 player, and deleting the music when I return the CD to the library.
4a) Never deleting the music from the computer/mp3 playerLegal under AHRA. Note that you must rip straight from the CD to the computer and again straight from the CD to the MP3 player.
5) Emailing an mp3 from question 2 to one friend to listen to, and requesting that he delete it once he is finished.
5a) emailing an mp3 to 10 friends and asking them to delete it once its been listened to?
5b)Illegal. You are making a serial copy.
6) Using a p2p service to trade mp3s from CDs they own with mp3s from CDs you own
Illegal. You are making a serial copy. Also, I do not know of any p2p services which comply with the royalty and serial copying requirements of the AHRA.
7) Using allofmp3 to download music
Not sure. It could be contributory copyright infringment.
8) Stripping copy protection from iTunes or PlaysForSure music files, to play them on your mp3 player.
Illegal. Removing the DRM violates section 1201 of the DMCA. If you allow the software to remove the protections (by burning to CD for example), you would still have to make a serial copy to turn it into an MP3.
9) How does the RIAA show that the music you have on your computer are not backup mp3 files from CDs that were destroyed or lost by you?
They don't. The question is, how do you prove that they are? I believe that's the direction the burdon of proof works under the AHRA.
9a) Can I use a p2p service to acquire a song I legally owned from a CD I owned, but was destroyed or lost?
Illegal. Same p2p issues as above.
Like everyone else on the internet, IANAL.
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Performing the song publicly
But more importantly: (d) The songs you buy from iTunes Music Store are licensed for private listening only, either inside a home or on headphones. If the phone plays a song when it rings while you are shopping, that's considered performing the song publicly, as far as I can tell from the definition of "publicly" in copyright law.
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Importation is infringement
BTW, "the play of import software" - so imported software is a no-no, but domestic software is okay?
Regional lockouts in video game consoles are made specifically to enforce 17 USC 602 and foreign counterparts, which claims that importation of a copy of a work without permission of the copyright owner is infringement despite the first sale limitation (17 USC 109 and foreign counterparts) that applies domestically.