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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.

What about allofmymp3? They are not in the US, so our copyright does not bind them. Assuming they are legal in their homeland, are you safe I wonder?

Assuming you meant "allofmp3.com" (no "my"), the most common allegations of the site's illegality depend on so-called parallel import laws (17 USC 602 and foreign counterparts) and on an interpretation of saving the file on the user's hard drive as "reproduction".

If "it" is a natural phenomena, it is not subject to patent in the United States. Manual of Patent Examination Procedure - Section 2106 If "it" is a machine that converts a natural phenomena into traditional energy like electricity, then that machine could be patented but nothing stops you from developing improvements to it or an entirely different machine. Regardless, the patent for that machine would expire 20 years from its filing date and would then become public domain.

If you have a computer system on your desk, there are probably at least 100 different patented products on your desk. That hasn't barred you from owning and enjoying the technology, however. There would be an incredible demand for "free" energy, and therefore market forces would provide ample incentive for competing scientists to develop non-patented devices to harness that energy. Sure, there might be some nasty legal battles, but in the end the original inventor will be able to patent at best what he has contributed to the technology.

The US government can infringe any patent - they just have to pay you when they do it. I guess Amazon is going to take over the world now. Oh well.

And by the way: you wouldn't be seeing them at all if you just let the user download the video instead.

If a video producer uses stock components such as music or video, some of the stock providers charge several times more for the producer to let the public download the video than if the public can only stream the video. The definition of exclusive rights under U.S. copyright separates "reproduce and distribute" from "perform publicly", which tends to encourage such royalty structures.

In 1996 a federal court found that a shrink wrap license is an enforceable software license. Have some states passed legislation since then rendering them invalid?

(I'm not trying to be a PITA, I actually want to know.)

Which law exactly governs your continued ability to breach copyright over and over by copying Windows binaries into memory?

Title 17, United States Code, section 117 (and foreign counterparts). Look it up.

Incorrect. The Seventh Circuit found that a shrink wrap license (EULA) is an enforceable software license.

for some reason North America and Japan are considered to be the same region with the BluRay format.

I thought 17 USC 602 and other countries' parallel-import legislation banned importing discs without the copyright owner's consent.

The law that describes what qualifies as prior art is 35 U.S.C. 102.

Right now I have downloadable access to every NES, SNES, Genesis, and N64 game ever made, on my computer.

Yeah, for $150,000 per game (or foreign counterparts).

How about finding a used copy of the game without the "greatest hits" banner on the box?

According to the howto page on xbox-linux.org, even some of the non-greatest-hits discs are the new version, which doesn't have the buffer overflow. One has to look for the part number on the packaging, which isn't possible with an online purchase.

but that doesn't stop you from buying an older Xbox used.

If I'm buying a used Xbox, how do I make sure that it is older? Would most sellers appreciate it if I asked them for the Xbox's serial number?

Even if you had a cartridge dumper and put the output of that on your hard drive, technically even that is illegal.

Dumping your own Game Paks (and not distributing the dumps) is not an infringement of copyright under 17 USC 117, which covers the right to make copies and adaptations necessary to run a program on a given system. At least it's a lot more legal than downloading.

limiting you to their pre-chosen list means that they can verify that the emulator in fact works with those particular games

Or they could just license Nintendulator from Quietust and get all games except a few obscure Japan-only titles with obscure mappers working in one stroke.

They don't need any EULA to install or use your software, at least in the USA

You're referring to 17 USC 117, correct? In practice, section 117 has been superseded by section 1201, which allows a copyright owner to attach arbitrary restrictions to the decryption of the encrypted install package.

They don't need any EULA to install or use your software, at least in the USA

You're referring to 17 USC 117, correct? In practice, section 117 has been superseded by section 1201, which allows a copyright owner to attach arbitrary restrictions to the decryption of the encrypted install package.

Besides in the USA, software is only copyrighted not patented (yet).

but there is the bit about giving it to "friends" (in bold)

Except copyright judges are more than likely going to interpret "friends and acquaintances" in the EULA to refer to the same "normal circle of a family and its social acquaintances" referenced in the definition of "publicly".

Abandonware is NOT legal to copy around as it's NOT legally public domain.

Copying is not always infringement, as all the exclusive rights of 17 USC 106 are granted subject to sections 107 through 121. Specifically, if a copyright owner refuses to exploit a given published work, then doesn't that negate any "market for or value of the copyrighted work" on which abandonwarez can have a negative effect?

Just because the company hasn't done anything with their game doesn't mean they aren't entitled to enforce their copyright.

If a copyright owner chooses not to exploit a given published work in the market, what deleterious effect does abandonware have "upon the potential market for or value of the copyrighted work"?

Technically, they make a copy and the ISP doesn't.

Isn't the ephemeral copy in the RAM of a router still a copy? And don't operators of automated caches have a fairly broad exemption under United States copyright law, 17 USC 512(b)?

the United Parcel Service has a trademark on the color brown,but only in the context of being a worldwide delivery service

aren't there laws in many places against preventing such shipping. It *is* a free market after all.

No. In fact there are laws that explicitly allow a copyright owner to prohibit importing copies of a work. See 17 USC 602 and foreign counterparts.

Never mind. I'm a doofus. I was thinking that patents only last 17 years from date of issue. Turns out its 20 years from application date as hinted at below.

I found an interesting site about patents in the U.S. here:

http://www.bitlaw.com/patent/

Are you willing to say that the ability to "protect" or "fence" a certain category of property is sufficient grounds to make that category of property patentable?

No. There are several requirements for a patent, but whether or not it's protectable is not one of them.

My understanding is that statements of fact are not protectable under copyright. A database that has a collection of facts may be copyrightable as there is some original, creative thought in the selection of facts compiled (a single quote is public domain; a database of quotes is copyrightable as a collection even though the underlying data is not). As for whether or not the Diebold database is protectable would seem to be, is a log of votes a compilation, or a recording of a single factual event? And even if one were to argue that it is a compilation, wouldn't the IP rights go to those doing the compiling (the voters), not the DB admins (Diebold)?

I have not read Pavel's patent but from your description it seems to be of the "claim staking" variety.

When the idea of geostationary communications satellites was first proposed it was non-obvious (if only because very few people were thinking about such things). This perhaps could have been patented.

Thank you for quoting a statute I already know. Now let me quote you two things that do not make it that easy. First is the requirements set forth by Graham v. Deere that you can see in MPEP 2141

Second is the requirement for motivation as determined by the CAFC and viewable in MPEP 2143.01

Not as easy as you would think huh?

Thank you for quoting a statute I already know. Now let me quote you two things that do not make it that easy. First is the requirements set forth by Graham v. Deere that you can see in MPEP 2141

Second is the requirement for motivation as determined by the CAFC and viewable in MPEP 2143.01

Not as easy as you would think huh?

You'll note I didn't say steal the website, but steal the contents.

You meant "copy", not "steal". If Google "literally steals the contents of millions of web pages" as you claimed, then millions of web pages would disappear the moment they're added to Google's cache and would have to be re-uploaded. Besides, even if you define "stealing" to include any violation of any exclusive right under copyright, then it's still not "stealing". See 17 USC 512(b) and (d), enacted as a rider to the DMCA.

The web site which licensed the material has no authority to relicense, even implicitly through the existence or not of robots.txt, the commercial use of the material to third parties.

So? The U.S. government already grants limited copyright exemptions to automated indexing and cache services in 17 USC 512. If AP or Reuters licenses its works to any web site that serves a United States audience, it must take section 512 into account.

There are copyrights, and then there are copynorms.

You don't opt into anything someone can do with your content, merely by distributing your content.

True, but a copynorm had developed that when a copyright owner publishes a work on the World Wide Web for anonymous access, the copyright owner intends for it to be seen by as many people as possible, and thus automated systems have the right to cache it verbatim until the copyright owner decides otherwise. In October 1998, the United States Congress codified this copynorm as law in 17 USC 512(b), enacted as a rider to the DMCA.

What Diehr said is that a claim does not become unstatutory just because software is a part of it. They affirmed Benson and Flook, in that if the only novel/non-obvious part of a patent is the software, then the invention as a whole cannot be taken as novel/non-obvious. They also pointed out you can't just remove the software and look at what's left. The way the software interacts with other elements may be novel and non-obvious. However, practically none of the "software patents" that are discussed on slashdot fit that description. The kind of invention Diehr opened the way for would include software elements, but wouldn't be what we call a "software patent".

Yes, I'm aware lots of people see it differently. That's because lots of people are wrong. Hardly anyone reads the case carefully. For example the oyez summary incorrectly attributes to Stevens the idea that no software can ever be patentable. He said no such thing, and in fact said he had no difference of law with the majority, only difference of fact (his reading of the claims.) The bitlaw summary says the majority saw the software as the only novel part of the invention. The majority said the opposite. I don't care that lots of people agree that Diehr opened the way for software patents. Lots of people are wrong.

The patent office never wanted to grant patents for software. They were forced to do so by the supreme court in the 1981 Diamond v. Diehr.[bitlaw.com]

Oh, and one more major error in that ruling: search for the word "arbitrage", and you can see him follow the fallacy that "the law owes you a living". He observes that since ProCD's business model depends on his ruling, that he must rule in their favor.

Sorry, but no. If the law is inadequate to promote business, that's a matter for the legislature, not a jurist.

IANAL. However, I am a law student.

To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.

Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg , from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.

Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.

- Neil Wehneman

I suppose this whinging money-crazed fucktard is the first to go whinging about copyright law when some warez kid sticks his games up on a Bittorrent site. Well guess what, dude, copyright law works both ways. It gives the developers some rights, and it gives the consumers some rights. In the case of USIAN consumers, 17 USC 109 grants anyone the statutory right to alienate themselves of any physical copy of a copyrighted work, by giving it away, reselling it, selling it on Ebay or whatever. That's the law, and it's there precisely in order to stop money-crazed fucktards like Mark Rein from demanding that people pay two or three or four times for a product that is only being used once. So THERE. It's our hard-won fought-for legal right, fucktard. Deal with it.

Sigh. And I actually thought Epic were quite cool, too...

A (sort-of) hypothetical. I come up with a new process for manufacturing goods. This new process is unique, non-obvious, and useful. The embodiment of the process is a machine that executes the process. The rules for the machine - the control logic etc. - are implemented by a large electronics cabinet holding a bunch of opamps and relays all hard wired together.

Is this patentable?

Now, for the sake of power consuption, flexibility, etc. I replace my huge electronics cabinet with a computer and some I/O cards. It's the same invention, just a slightly different embodiment (and very slightly at that). Is the process still patentable?

I think this is the problem with arguing that all software patents are not O.K., while all hardware patents are O.K. The line is too blurry for me, since the point of a method patent is that the method is protected, regardless of the embodiment of the method. I don't patent the machine, I patent the method of executing my new manufacturing process (something that is vaugely tangeble, but I think worthy of patent protection). The implementation of this process would have been done with the "magnetics cabinet" 50 years ago, but today it's done with PLC's (simple industrial computers) running software to emulate the magnetics cabinet. Does that change mean that the process is no longer patentable? The SCOTUS of course said that the computer embodiment is patentable , and I agree with the decision. I think the USPTO f'd it up by allowing what are fundamentally "obvious" software patents, and software patents that are not implementations of patentable processes, but I don't think that all software should be exempt from patent protection.

Nothing has fallen into the public domain for almost a half century before I was born.

It's dead Jim.

That is not true. 1) Copyright in other nations (i.e.) Australia have expired, and so gone into the public domain in the US.
2) Some work in the US has gone into public domain ( from http://www.bitlaw.com/copyright/duration.html#old ):
if a work was published between 1923 to 1963, the copyright owner was required to have applied for a renewal term with the Copyright office. If they did not, the copyright expired and the work entered into the public domain. If they did apply for renewal, these works will have a 95 year copyright term and hence will enter into the public domain no sooner that 2018 (95 years from 1923).

Using someone elses original work without their permission is called taking.

So how do I know whether or not I'm "taking"?

As long as 'similar' is reasonably defined things are fine.

Trouble is that "probative similarity" and "substantial similarity" are not clearly defined in case law.

People are generating plenty of music without being sued, so things seem to be fine.

People are smoking pot without being thrown in jail too. Is your argument that it's not illegal if you don't get caught?

That said, copyright doesn't require you to guarantee your work is original, it simply offers creators a mechanism to deal with works they think are infringing.

OK, so if you find yourself the defendant in a lawsuit accusing infringement through subconscious copying, how will you finance a legal defense?

Being realistic, instead of dreadfully pessimistic, punitive damages are not going to exceed real damages by stupid amounts

As for "stupid amounts" see 17 USC 504(c). I can't even afford $750 plus attorney's fees plus court costs, let alone $30,000 plus attorney's fees plus court costs.

Again, the proof is in the pudding, people are still writing songs and calling them original.

So how do I make sure that I am not going to be the one that the major labels' affiliated music publishers decide to "make an example of" to help maintain their cartel? Would you recommend the composer liability insurance offered by MusicPro Insurance?

Or better, going to blockbuster and renting the game, copying it, and dropping it in the night return?

Blockbuster does not carry PC games because copyright owners have successfully lobbied for exclusive control of rental for all computer programs other than console games. See 17 USC 109.

I would like to mention two interesting points about common law trademarks and the GPL, but first..

IANAL. Also I personally believe this trademark initiative is wrong-headed, mainly because it has led to at least one tragedy (thelinuxapprentice.com, now down directly due to the scary dunning letters in Australia).

Also it has nothing to do with quality assurance, mainly it is a defensive tactic and as such *should* be maintained, but not by someone making a living at this, and not including calculations on how to maximize what the traffic will bear. The trademark should be sold for $1 or the minimum, regardless of whether it will make the trademark seem worthless, because of the innate reason the community needs defense and minimum burden.

The amount of money involved is very significant outside the U.S., and even in the U.S. a million dollar per year company could use the $10K to buy 20 $500 pcs, or hire a talented professor to do important research part time, etc. Where does it say they have a million bucks to burn?

It is also a barrier to entry to a market that has major distros with Linux in the name, and Linux has also become a generic term.

However I would submit that linux (with a lower case "l") or maybe vmlinuz? does talk about the kernel. So capitalized should be okay.

It does seem that the initiative violates Clause 1 of the GPL,
though the later part of the GPL seems to suggest it might simply forbid you from using or distributing the otherwise unencumbered software.

Okay about common law trademark. Google it. I found this link and this link which look interesting. While perhaps not as strong in terms of protection, it would seem that if you have a popular program used in many states or countries online, it is already trademarked in a sense.

If true, this would mean that the idea of having to force people to purchase liscenses is bogus, since surely Linux is well known by now.

It also would render more transparent this unfortunate expedition of Linus' which as he says, was explicitly created so as to control how linux is used (what can be called linux).

I would have a little less problem if it was automatically accepted as long as you are really making something with the linux kernel in it, or even if it was not the linux kernel but it ran well-known "linux" applications, KDE, etc.

In this sense, there is no need for such a wide-ranging crusade for trademarks. All you need is for a nice-sized fund to be created to hire a lawyer in case somebody truly evil shows up and tries to destroy linux by FUD based on use of the linux name. Otherwise, I think they should just skip trademark enforcement, not worrying about so-called dilution. The POINT of linux is dilution in that you can use it to do anything you want! Why don't you just put something about that in the GPL and be done with it? If it isn't really linux, then tell people about it. How much money will it really cost per year to do a minimum reasonable job using inexpensive people? Anybody with a real answer? Any reason why it even has to be based in the first world?

The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.

Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.

The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".

The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.

The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.

Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.

The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".

The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.

The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.

Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.

The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".

The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.

The patent office could define obviousness anyway it chooses that fits the necessary criteria of 'invention' (i.e. something new) and 'not obvious to a practictioner in the field'.

Completely incorrect. The basic requirements set for something to be patented are set in 35 USC 101 (the types of things which can be patented), 35 USC 102 (novelty), 35 USC 103 (obviousness) and 35 USC 112 (requirements for disclosure). These are federal laws which were written by congress and approved by whoever the president was at the time.

The Judicial Branch of the government has the sole power to interpret the law. So whenever a case does reach the courts regarding patents the courts decision help define what constitues "obvious".

The patent office as part of the executive branch has no power to interpret the law as it chooses as must follow the interpretations given by the courts.

Here's a start:

The U.S. Patent and Trademark Office historically has been reluctant to grant patents on inventions relating to computer software. In the 1970s, the P.T.O. avoided granting any patent if the invention utilized a calculation made by a computer. Their rationale was that patents could only be granted to processes, machines, articles of manufacture, and compositions of matter. Patents could not be granted to scientific truths or mathematical expressions of it. The P.T.O. viewed computer programs and inventions containing or relating to computer programs as mere mathematical algorithms, and not processes or machines. As such, software related inventions were considered non-statutory (see the BitLaw discussion on patent requirements for further information on the requirement that inventions be statutory). http://www.bitlaw.com/software-patent/history.html

Software is not so special. However, a full-powered platform unencumbered by patents and restrictive licensing is, and definately worth fighting for. Google for 'software patents' and you'll find better expressions of the argument than I could ever come up with.

Copyright and trade secrets legislation are more than adequate for the protection of software IP.

show me the language that allows you to modify the software.

Modifying a computer program and not distributing copies of the modified program is not copyright infringement. Title 17, United States Code, Section 117(a)(1).

rather than formulating a marketing driven non-word for their new product

And yet, if you read articles like Strength of Trademarks you'll see that those "non-word" (aka "fanciful) trademarks are the strongest to protect. So there's a reason for formulating them.

Of course, the challenge with the fanciful names is linking them to the product/service.

Then why didn't you submit this under 37 CFR 1.99?

I haven't read the prosecution history for that patent, have you? Just an observation. Neither of us know of Lotus was used (and defeated) as prior art. Just an observation.

I don't know if you're trained to perform a legal analysis of prior art, or if you have even a passing knowledge of 35 USC 102 or 103 and the volumes of case law surrounding those statutes. It does require at least a basic knowledge of these things to make even an initial judgement of what is anticipatory or teaching prior art.

I'm not deliberately trying to be an ass, but there is such a cataclysmic misunderstanding of US patent statutes and case law around Slashdot that I really wish they'd quit carrying the stories - As an IP professional, I hereby certify that Slashdot is a more reputable forum for prenatal medicine than the US patent system. (Hell, there are even people who believe that the "obvious" doctrine of 35 USC 103 is not completely and wholly based on the existence of prior art. See for yourselves MPEP 2143, the manual for proving something is obvious. "References" refers to prior art.) I'm not trying to put words into your mouth, but instead trying to balance the offering of Lotus as prior art with the thought that maybe, just maybe, the existence of Lotus is not a valid point of criticism of this patent unless we have seen the prosecution record.

If distribution were the case, couldn't everyone just claim they were a form of radio webcast and just pay the fee mandated by the Library of Congress for each song uploaded?

Webcasters operating under a section 114 compulsory license cannot operate an "interactive service" (that is, play songs by request), and they need to use some technological measure to prevent listeners from making digital phonorecords of a broadcast.

One thing you have pointed out to those who are flaming the PTO for granting software patents at all is that the PTO pretty much has no choice but to examine such applications for novelty and unobviousness; they can not just make policy to not grant "Software Patents" as failing to meet 35 USC 101 (The issue of "silly", "stupid" or obvious patents is a whole other, separate issue, distinct from this utility issue and which merits a whole other discussion).

The Office has traditionally been opposed to software patents (along with business methods; take a look at this site for one discussion of this) and so rejected it, but the US Court of Appeals for the Federal Circuit (CAFC) and it's predecessor, the Court of Customs and Patent Appeals (CCPA), have been hot to trot to permit software patents. This position ended up in the Supreme Court with the Benson case back in the 1960s; the CCPA had reversed the PTO, who o appealed to the Supreme Court, who finally ruled in favor of the PTO (i. e., reversing the reversal of the CCPA).

Scrambling to recover from this smack down, the CCPA and successor CAFC have strained to interpret Benson and other cases as narrowly as possible; as I recall they reversed a PTO rejection of a natural language algorithm, stating Benson only applied to "mathematical" algorithms.

As you have said, the CAFC continues to follow its "Anything under the sun is potentially patentable subject matter" concept as far as it thinks it can stretch beyond the wording of the Benson and Diehr cases; it will take a flat reversal by the Supreme Court or an act of Congress to change this, neither of which looks likely any time soon.