Slashdot Mirror

Of course the EULA hasn't been validated in court yet AFAIK, but that's another story.

I am a broken record that repeats the words ProCD Inc. v. Zeidenberg whenever someone claims that EULA's have never been upheld in court. Unfortunately they have.

EULAs are non-binding anyway.

I am a broken record that repeats the words ProCD Inc. v. Zeidenberg whenever someone claims that EULA's are unenforcable. The unfortunate truth is that they have indeed been upheld in the past.

Delphi 5 was announced Aug 2, 1999 at Borcon 1999. Started shipping at the of November 1999.

I admit, I read the wrong date on the patent in terms of prior art filing. You know what, I don't care.

1) Do you think Borland did not have the idea 5 months before it was announced to the world. At the time, Borland was shipping new version about every 2 years. Note: I'm not accusing MS of patenting idea they saw from Borland, just remarking that Borland most likely had the idea first. Since I don't have access to internal Borland docs, I can't prove legally. Don't know all the history, but NDA style Alpha / Beta product was bound to be out much earlier than the public release announcment. I would say it was also prior to the rush of bad software patents becoming common knowledge due to the slow speed of this new class of insanity passing through the patent office.

2) Since the patent app was basically secret, isn't this sufficient proof that the patent was not novel (in the legal sense)? Borland did not even think this worthy of a patent. It was worth listing as a product feature when announced. It was worth protection by copyright law. If Borland was first to have the idea (it is quite likely others had the same idea too besides Borland & MS), it was still not worth a patent.

3) I don't believe that the race to the patent office is the best way to determine winners, esp. since such rules favor deep pockets. Novel should not mean who can beat feet to the patent office fastest. PTO prior art search for software patents is pitiful. Getting better - most likely, again so what. Patents are still the wrong mechanism.

4) Patent laws were never designed to cover mathmatic discoveries, or discovering natural laws -- only the novel application of such natural discoveries. This is why patents were never granted for software before 1981 (which was not so much a software patent as a chemical process patent), and it was not until 1995 that the floodgates were opened to reflect recent judicial rulings. See link for software patent history if you are interested, actually, you should look here if you would like to know more about software patents.

5)Software is not like hardware. I don't need to build a $100 million manufacting plant to produce software economically. This is why the inventor needs patent protection for a limited time -- to give him time to capitalize on his invention without ripped off by a more powerful competitor.

6) Stac Electronics won $120 million from MS over their stacker patent. This is supposed to be an example of having the patent system work correctly. Here is what's wrong with it. A) Compression was not a new idea, hard drives where not a new idea, the market had simply reached the point where Stacker made some sense. They went out and wrote it, and started making money off of it. B) MS was interested in bundling similar behavior in MSDOS C) MS got caught cheating by using Stacker code they saw under NDA that they did not have rights to use D) $120M is ok by me for damages, it's more than Stac would ever have made it all likelihood, probably in the treble damages range. E) If however, MS had done a clean-room reverse engineering project, this should be legal (excepting anti-trust considerations). Reverse engineering software does not violate copyright. F) Stac had a better product (though more expensive due to MS bundling), so Stac had grounds for recovery under anti-trust law. G) If Borland had said, we can write a better Stacker and sold it and put Stac out of business by better product Stac already had exclusive use of their product for a while H) Stac could have competed on basis of price, better product, better marketing.

The innovation comes people trying to make a better product, not milking a patent for many years to maintain artifically high prices.

Delphi 5 was announced Aug 2, 1999 at Borcon 1999. Started shipping at the of November 1999.

I admit, I read the wrong date on the patent in terms of prior art filing. You know what, I don't care.

1) Do you think Borland did not have the idea 5 months before it was announced to the world. At the time, Borland was shipping new version about every 2 years. Note: I'm not accusing MS of patenting idea they saw from Borland, just remarking that Borland most likely had the idea first. Since I don't have access to internal Borland docs, I can't prove legally. Don't know all the history, but NDA style Alpha / Beta product was bound to be out much earlier than the public release announcment. I would say it was also prior to the rush of bad software patents becoming common knowledge due to the slow speed of this new class of insanity passing through the patent office.

2) Since the patent app was basically secret, isn't this sufficient proof that the patent was not novel (in the legal sense)? Borland did not even think this worthy of a patent. It was worth listing as a product feature when announced. It was worth protection by copyright law. If Borland was first to have the idea (it is quite likely others had the same idea too besides Borland & MS), it was still not worth a patent.

3) I don't believe that the race to the patent office is the best way to determine winners, esp. since such rules favor deep pockets. Novel should not mean who can beat feet to the patent office fastest. PTO prior art search for software patents is pitiful. Getting better - most likely, again so what. Patents are still the wrong mechanism.

4) Patent laws were never designed to cover mathmatic discoveries, or discovering natural laws -- only the novel application of such natural discoveries. This is why patents were never granted for software before 1981 (which was not so much a software patent as a chemical process patent), and it was not until 1995 that the floodgates were opened to reflect recent judicial rulings. See link for software patent history if you are interested, actually, you should look here if you would like to know more about software patents.

5)Software is not like hardware. I don't need to build a $100 million manufacting plant to produce software economically. This is why the inventor needs patent protection for a limited time -- to give him time to capitalize on his invention without ripped off by a more powerful competitor.

6) Stac Electronics won $120 million from MS over their stacker patent. This is supposed to be an example of having the patent system work correctly. Here is what's wrong with it. A) Compression was not a new idea, hard drives where not a new idea, the market had simply reached the point where Stacker made some sense. They went out and wrote it, and started making money off of it. B) MS was interested in bundling similar behavior in MSDOS C) MS got caught cheating by using Stacker code they saw under NDA that they did not have rights to use D) $120M is ok by me for damages, it's more than Stac would ever have made it all likelihood, probably in the treble damages range. E) If however, MS had done a clean-room reverse engineering project, this should be legal (excepting anti-trust considerations). Reverse engineering software does not violate copyright. F) Stac had a better product (though more expensive due to MS bundling), so Stac had grounds for recovery under anti-trust law. G) If Borland had said, we can write a better Stacker and sold it and put Stac out of business by better product Stac already had exclusive use of their product for a while H) Stac could have competed on basis of price, better product, better marketing.

The innovation comes people trying to make a better product, not milking a patent for many years to maintain artifically high prices.

the premise that software should constitute patentable subject matter is generally well-settled among the legal community

Nonsense. For starters that is false outside the US. Secondly, the only thing that is "well-settled" is that the US has recently REVERSED it's position and has been issuing and upholding such patents.

In particular the EU Parliment is well-settled that software is not patentable subject matter, and that the European Patent Convention explicitly declares that software is not patentable subject matter. This would imply that any software patents granted thus far in Europe have been improperly issued and are worthless.

Yes, the European Council is pushing to legitimize existing and future software software patents, but as I understand it the Parliment gets the final vote. (Anyone more knowledgable in EU politics is welcome to correct me or elaborate on the process.) Very few software patent cases have been brought to court, but from what I hear they have generally been tossed out as invalid, particularly in Germany.

I present the textbook example of an elegant, useful software invention worthy of patent protection: RSA - the public-key system that permits relatively effortless secured communication via one-way encryption.

Yes. A perfect textbook example of a patent on pure math. Utterly absurd. What next? A patent on doing a basic integral? Oh wait, that was the initial Software patent upheld by the US Supreme Court in Diamond v. Diehr. It was a patent on preforming a basic integral of heat over time. An absolutely trivial math equation if you are the least bit familiar with calculus, integrating heat over time.

Prior to that ruling it was well-settled that the US Patent Office rejected all efforts to patent computer programs on the grounds that programs are mathematical techniques and not patentable. The patent office's own commision said "A series of instructions which control or condition the operation of a data processing machine, generally referred to as a program, shall not be considered patentable regardless of whether the program is claimed as (a) an article, (b) a process described in terms of the operations penformed by a machine pursuant to a program, or (c) one or more machine configurations established by a program."

The US assistant Attorney General said "The practical results of extending patent monopolies into this area would be to inhibit interchange of information and techniques, to restrain innovation, efficiency and competitive vigor in the growing computer industry, and to raise barriers to new entry. These anti-competitive consequences would result without giving the public, as consideration for the patent grant, any `inventive' contribution to the progress of the arts and sciences."

The initial Diamond v. Diehr ruling REVERSED settled US policy against software patents. The Patent Office threw the doors wide open to software patents based on that ruling. The US Supreme Court simply goofed in that case. They thought they were upholding a patent on a physical manufacturing process. There was absolutely nothing new or inventive in the physical manufacturing process, the supposed "invention" was purely in math.

Further note that the RSA patent - and ANY software patent for that matter - can be implemented through PURE THOUGHT. It is possible to preform the RSA exponention just by thinking the calculations in your head. Using a computer merely makes it easier, faster, and more reliable to preform those basic math calculations. There is absolutely nothing new, "inventive", or non-obvious in using an ordinary computer to preform basic math calculations faster and more reliably.

It is just absurd to suggest that a person stitting motionless and just *thinking* could violate the RSA patent (or any other software patent). And it is also absurd to suggest that the obvious step of using an abacus, a slide-rule, a calcula

the premise that software should constitute patentable subject matter is generally well-settled among the legal community

I don't know just how "well-settled" that is in the US legal community, but it certainly is NOT true outside the US. In particular the EU Parliment is well-settled that software is not patentable subject matter, and that the European Patent Convention explicitly declares that software is not patentable subject matter. This would imply that any software patents granted thus far in Europe have been improperly issued and are invalid.

Yes, the European Council is pushing to validate existing and future software software patents, but as I understand it the Parliment gets the final vote. (Anyone more knowledgable in EU politics is welcome to correct me or elaborate on the process.) Very few software patent cases have been brought to court, but from what I hear they have generally been tossed out as invalid, particularly in Germany.

I present the textbook example of an elegant, useful software invention worthy of patent protection: RSA - the public-key system that permits relatively effortless secured communication via one-way encryption.

Yes. A perfect textbook example of a patent on pure math. Utterly absurd. What next? A patent on doing a basic integral? Oh wait, Diamond v. Diehr was the inital Software Patent upheld by the Supreme Court. It was a patent on preforming a basic integration of heat over time. A patent on a simple equation to calculate time.

Prior to that ruling the US Patent Office consistantly rejected all efforts to patent computer programs on the grounds that programs are mathematical techniques, therefore not patentable. The patent office's own commision said "A series of instructions which control or condition the operation of a data processing machine, generally referred to as a program, shall not be considered patentable regardless of whether the program is claimed as (a) an article, (b) a process described in terms of the operations penformed by a machine pursuant to a program, or (c) one or more machine configurations established by a program.

The US assistant Attorney General had said "The practical results of extending patent monopolies into this area would be to inhibit interchange of information and techniques, to restrain innovation, efficiency and competitive vigor in the growing computer industry, and to raise barriers to new entry. These anti-competitive consequences would result without giving the public, as consideration for the patent grant, any `inventive' contribution to the progress of the arts and sciences."

The initial Diamond v. Diehr ruling REVERSED settled US policy against software patents. The Patent Office then threw the doors wide open. The US Supreme Court simply goofed in Diamond v. Diehr. They thought they were upholding a patent on a physical manufacturing process. There was absolutely nothing new or inventive in the physical manufacturing process, the supposed "invention" was purely in math.

Further note that the RSA patent - and ANY software patent for that matter - can be implemented through PURE THOUGHT. It is possible to preform the RSA exponention just by thinking the calculations in your head. Using a computer merely makes it easier, faster, and more reliable to preform those basic math calculations. There is absolutely nothing new, "inventive", or non-obvious in using an ordinary computer to preform basic math calculations faster and more reliably.

It is just absurd to suggest that a person stitting motionless and just *thinking* could violate the RSA patent (or any other software patent). And it is also absurd to suggest that the obvious step of using an abacus, a slide-rule, a calculator, or an ordinary computer to speed up the exact the same calculations is somehow new, inventive, non-obvious, or patentable. If you want to defend software patents then this is the ke

One, EULAs have never shown to be legally binding.

Patently false. Why do people make authoritative-sounding claims without knowing what they're talking about?

ProCD vs Zeidenberg is an example of a case where a EULA was upheld as legally binding, and the opinion gives strong support for the enforcability of EULA's in general.

So stop spreading misinformation.

The reality is, the companies who use EULAs are abusing the system, and trying to treat a license like a contract.

Read the ProCD opinion, and become enlightened about the legal concept of contract of sale.

The Director shall charge the following fees:
On filing each application for an original patent, except in design or plant cases, $ 690.

Fees charged under subsection (a) or (b) shall be reduced by 50 percent with respect to their application to any small business concern as defined under section 3 of the Small Business Act, and to any independent inventor or nonprofit organization as defined in regulations issued by the Director.

I wonder what MS, Apply, IBM, HP, Sun, and the rest of them have been patenting all these years

Math.
Which is absurd.

The following quotes are from The History of Software Patents

The original US patent office rule "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."

In 1981 the supreme court goofed and ordered the US patent office to issue a patent on a calculation. In particular using math to integrate heat over time. A calculation for how long to bake rubber during its manufacture.

"The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process for molding rubber, and hence was patentable. This was true even though the only "novel" feature of this invention was the timing process controlled by the computer."

In otherwords they goofed. They thought they were granting a patent on a physical process. But there was no inventive physical process. The only "invention" was doing a math calculation - namely a calculous integral.

It doesn't matter if it's calculous or addition. It's no different than had they patented the following:
Put an egg in an egg carton, computer calculates (sum plus one). When the sum is 12, stop.
That really is what they patented. Manufacture rubber in exactly the normal way, preform a calculous sum on ordinary computer hardware, stop cooking when the sum is a certain value.

Except for the patent words "using an ordinary computer", you can violate this patent through pure thought. All software patents trace back to that one decision. If you want to defend software patents then that is what you need to defend.

"the P.T.O. and inventors were left trying to determine when an invention was merely a mathematical algorithm, and when it was in fact a patentable invention that simply contained a mathematical algorithm. Although lower courts attempted to set forth this distinction in a clear manner, the resulting opinions were generally quite confused.

The rules were broken, naturally leading to confused results. The courts screwed up one case and opened the door a crack for patenting math. Since then the US patent office has thrown the door wide open in compliance with that screwed up ruling.

"What was clear was that the patentability of a software related invention depended heavily on the claims created by the patent attorney."

In other words getting a patent issued on pure math has turned into nothing more than a word game.

If you clearly and directly fill out the patent application then your application gets (properly) rejected. But if you play games and use some magic words and describe your "invention" as a caculation as "implemented by a general pourpose computer" then ther (absurdly) grant the application. There is nothing inventive about using an ordinary computer to preform a calculation.

-

If you violate RIAA copyrights, they can sue your ass. You ain't going to be arrested.

Criminal Infringement

Criminal infringement. Any person who infringes a copyright willfully either--
for purposes of commercial advantage or private financial gain, or

by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $ 1,000, shall be punished as provided under section 2319 of title 18...

http://www.bitlaw.com/software-atent/history.html

TOSs and EULAs have not really been tested in court.

In ProCD Inc. v. Zeidenberg a click-through EULA was upheld as enforceable.

More analysis of the enforcement of shrinkwrap licenses in general.

Elcorton notes that SCO's First Amended Complaint against AutoZone, section 19, asserts, "The Copyrighted Materials include protected expression of code, structure, sequence and/or organization in many categories of UNIX System V functionality ..."

Elcorton writes, "The phrase 'structure, sequence and/or organization' comes from the opinion of the Third Circuit Federal Court of Appeals in the 1986 case Whelan Associates v Jaslow Dental Laboratory, in which the court held that some non-literal elements in the design of software could be protected by copyright. This precedent was cited in a number of cases for the next several years. But in 1992, the Second Circuit Federal Court of Appeals, ruling in the case Computer Associates v Altai, rejected Whelan, and imposed its own much more stringent test for determining whether a software copyright is infringed."

A former CA employee went to work for Altai, taking code from the disputed program with him. Unbeknownst to his employers at Altai, he copied CA's code line for line into a utility being developed by Altai.

After CA brought suit against Altai, the programmer confessed that he had copied code wholesale from the CA program into the Altai product.

Altai executives commenced a "clean room" rewrite of their utility, locking away the tainted code and excluding the offending programmer from the rewrite.

The Second Circuit found in favor of CA on the literal copying, but found against CA on its assertion that the rewritten program also violated its copyrights.

Basically, whether or not the invention was thought of or will be used in space, it is still a jurisdiction question. I know about patents, but space jurisdiction - not so much.

If you have the ability to do something in space, just make sure you are doing it under the banner of a country that isn't too concerned with US patents :)

Collections of works are already protected under current law. E.g. what university of washington copyright connection has to say about it and the plain old copyright code

This page has pdf's of patent office forms, including one about prior art. The USPTO website also seems to suggest that prior art is something that has been patented in this example.

If people really care about this and aren't just into recreational bitching, then write the patent office a letter with the appropriate details so that the clerks at least have the opportunity of being made aware of this stuff.

Your over-simplification is profoundly incorrect. See bitlaw's summary: Fair Use in Copyright.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

there is no such thing as "fair use" for commercial purposes, and the percentage of the song used is irrelevant

Your over-simplification is profoundly incorrect. See bitlaw's summary: Fair Use in Copyright.

it's very clear that *ideas* are not copyrightable

True, but there exists no bright line between copying of inherently free ideas and nonliteral copying of copyrighted expression. The opinion in Computer Associates v. Altai (1992) gives a method to separate ideas from expression, but because most individuals can't afford to defend themselves in court, one must act so as not to give even the remotest appearance of infringement.

The filing fee is US$2,520.00.

I pity you... Here, have another link. You seem to lack logic and reasoning skills and that causes an inability to realise that deficiency - a truly miserable sight. I, on the other hand, have higher than average reasoning skills, which, according to this paper, makes me overestimate the abilities of others and causes me to behave in such a way as if you were an intelligent person, capable of rational thought. Thus I will have another shot at explaining this to you.

According to Section 15 of Title I of Lanham (Trademark) Act (paragraph 1065 of Title 15 of the United States Code), the trademark used for 5 years is incontestable, except when

• Microsoft stops using the trademark
• someone at Microsoft screws up (miriads of irrelevant formalities, wrong registration, etc.)
• it becomes generic name for a product or service

First case is unlikely, second case is completely irrelevant to Mike Rowe's case (you have to believe me, because I've actually read that law and because I am smarter than you), third case is completely unrealistic, because Microsoft does not describe any product in the first place, it's the name of the company. The dilution of the trademark has nothing whatsoever with losing it, in this case it only means that since Microsoft doesn't want anyone using names vaguely resembling its own and has a "famous" trademark, it must stop others from doing it. If they allow Mike to keep his domain name, they might have to allow "Nike Cross Soft" shoes, etc. In no case will they lose

1. the rights to the trademark
2. the right to prevent competitors from using it (even Mike, if he starts to compete)
3. the right to prevent anybody from using it if there is a likelihood of confusion

So to sum it up, the only reason for MS to attack Mike is that they keep the right to attack someone else next time without any compelling reason. Which is pretty pathetic and morally corrupt, if you ask me.

And just in case you can find the Trademark Act yourself, here is the link: http://www.bitlaw.com/source/15usc/index.html

Please note that it is from the US Code and not the first page of some half-assed Google search.

Of course I wouldn't mistake it, but read the URL aloud and the joke is immediately apparent.

As for the U.S., 2600.com made the Federal Trademark Dilution Act well known with the fordsucks.com case.

The supreme court of the US has not ruled on EULA's specifially to my knowledge, I'd love to see evidence to the contrary.

Here's a decision where a particular EULA was upheld, and also ruled that EULAs can, in general, be legal (generally) so long as the buyer has recourse to refuse the additional terms.

Again, EULA's can be legal, though it doesn't mean that every EULA is legal.

Lanham act info: http://www.bitlaw.com/source/15usc/

What is the Lanham Act anyway? I find two references to it at law.cornell.edu but the links don't point to the actual part of US law that they affect.

I'm English and even *I* know what the Lanham Act is. (Or think I do, anyway.)

The Lanham Act is a law that stops businesses unreasonably making allegations that interfere with a competitor's trade. I believe that it forms the basis of part of IBM's countersuit, and also of RedHat's action against SCO.

*Googles to be sure*

OK. It seems that while it's primarily about trademarks, I'm still right. You can find the whole thing here.

This is from Mostly Harmless by Douglas Adams. Get it from somewhere other than Amazon. The story submitter and I both forgot to mention the name of the author, and not quite all slashdot readers will immediately know what we're talking about.

It's a bleak book, as Douglas Adams admitted. It's also very funny in places.

I detect moderatorial controversy. It's rather a large quote. Or is it more of an unauthorized extract?

Please don't forget the fourth and most important factor in fair use.

30% Funny
30% Overrated
20% Insightful

And I thought I was just aiming for "Informative". Shame about the attribution. Even after 259 comments here, there is still only one mention of the name "Adams".

OK, there's public performance/display, but I don't see how that matters, since you can't publically perform software, and publically displaying software doesn't make much sense.

Actually copyright law does specificly recognize public performance and display of software. Running a program and displaying the results is a "performance". It is most easy to recognize it in the form of video games, often almost identical to watching a movie.

If you were to buy several copies of a game an set up public terminals to play it you could be sued under public perfomance, whether it is free play or pay arcade. You need a public performance rights licence for software to be "publicly performed" in an arcade.

The public performance right is generally held to cover computer software, since software is considered a literary work under the Copyright Act. In addition, many software programs fall under the definition of an audio visual work. The application of the public performance right to software has not be fully developed, except that it is clear that a publicly available video game is controlled by this right.

-

• The ISP
• The webhoster (customer of ISP)
• The sharer

Attempting to make a purchase into a license after the sale has taken place, just doesn't seem legally enforcable.

It isn't, but the highest US Court to consider the issue so far does not agree. Read the bile that is the ProCD opinion.

Fortunately, the Supreme Court hasn't ruled yet, so we have some hope that sanity will overcome. If a cooperative software vendor wanted to speed the case to a victorious conclusion, he could just modify 1% of his shrinkwrap EULAs to include an extra provision- something outlandish like an additional $1000 monthly fee as long as the product is installed. The ensuing lawsuit would clearly demonstrate the folly of the ProCD position.

If shrinkwrap/clickwrap is genuinely an opportunity to enter into an arbitrary contract, then such a clause would stand up (and IT departments would start hiring a lot more lawyers to install patches). But of course, intelligent judges will realize that a person engaged in opening/installing software is in no position to pore through legalese, and that contractual agreements cannot be a conventional part of such events.

Sorry, but no. Fair use does not give you the right to make copies of music you haven't paid for, even if you delete them later. Fair use is not a "try-before-you-buy" law, it lets you do certain things which copyrighted items you have legally purchased.

just like me handing a tape to my friend to listen to for a week is a legit "fair use" doctrine.

Fair use doesn't even enter into this. If you lend a friend a tape you are not making a copy, and so copyright law has absolutely no bearing. You are simply lending out a physical item, like a library. If you mean making a copy of a tape for a friend, then fair use certainly DOES NOT allow this. It is simply too minor a crime to be prosecutted for, however.

If you'd like to review the fair use doctrine for yourself try here or here. BTW, you are correct in that there is absolutely nothing illegal in using P2P services to share non-copyrighted items, or copyrighted items where you have the owner's permission to share.

I am worried about the refined definition of "derivative works" that will come out of the case, and if I will be able to reuse source code from books, personal projects, and from online sources. I am NOT worried about SCO, or Linux failing, or the GPL not being enforcable.

I'm actually quite surprised that no one's ever gone to court over exactly what it means to say their application is based on another application with regards to what the GPL has to say. .... According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

On the first point, There was one major case that went to court about derivative works, the issue of AT&T and Berkeley's Unix implementations. If/When this goes to court, the settlement documents will have to be opened, and we'll all get to see some interesting things, including the likely posibility that SCO does not have the rights that it is asserting. There have been a few other cases that were clearly deriviatvies (according to the wording of the law), but there have been no relavent cases other than the earlier one about Unix where the border of derivative works in software has been established.

On the second question, that's exactly what is at stake in the case. That's what the lawyers see, but many geeks try to ignore. It's the reason that so many geeks and laywers were mad when software was declared to be subject to copyright and trademark laws, rather than exempt as science. I argue it is more like science because it must be an iterative improvement, and less like art. But I digress. See 17 USC 101 for the actual legal definition of derivative works and related terms. Or, if you don't want to bother following the link...

Excerpt from 17 USC 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

Remember that This has not been decided in any legal case yet. So let's not say that it is decided, but look at the extremes. We know that whatever is decided must lie within the extremes, so if we examine the extremes we'll know what to expect.

In a very strict reading of the definition, ANY unix-style OS could be claimed to be a recast, transformed, or adapted verion of some earlier unix OS. The Posix standard also could be considered a derivative work. If your software interfaces with that OS, it must use OS-provided interfaces and data structures. While your application may be an original work of authorship, it could easily be argued that it is a derivative work of the OS. (It contains content that was developed by another author.)

Rinse, Lather, Repeat. Include in your rinse-lather-repeat cycle that new systems, including embedded devices, also use the same concepts that are contained in other OS's. They have to be programmed in some language, probably C, and that language was derived from the Bell Lab's work.

So from this extreme, we can see that SCO owns everything. That is a strict reading of the law.

Lets take the other extreme. In a very lax reading of the definition, it moves us back to common-law. We can then say that any copying for inter-operation and communication purposes is not a deriva

It wasn't some guy suddenly deciding to patent software. The Supreme Court decided in Diamond v. Diehr that the USPTO's regulations at the time were unconstitutional. In case you don't follow the link, Diamond v. Diehr was about a method for vulcanizing rubber that used software connected to sensors to determine how best to heat the rubber.

So the USPTO (part of the executive branch of government) was prohibited (by the judicial branch) from following their current regulations. They got no help from Congress (the legislative branch) by creating new laws to help them guide new regulations. The USPTO can't unilaterally revert to their previous rules. Either someone needs to bring a new case to the Supreme Court to challenge the current USPTO regulations, or Congress needs to pass laws that will pass a judicial challenge.

Here's a link that also mentions these criteria.

The most important rule, however, is that an invention will not normally be patentable if:

• the invention was known to the public before it was "invented" by the individual seeking patent protection;
• the invention was described in a publication more than one year prior to the filing date; or
• the invention was used publicly, or offered for sale to the public more than one year prior to the filing date.
  

Patent examimers are supposed to do a check for prior art. Unfortunately, their usual body of work to check from is other patents. From their point of view, useful items are patented, so examining other patent filings is the best place to find already existing inventions.

The problem is, there patent office refused patents on software until forced to by the Supreme Court in the 1981 case Diamond v. Diehr The software industry developed without any consideration to patents, and now the patent office is missing decades of the basic building blocks needed for determing the novel from the mundane.

It doesn't work that way. Under the Duty of Disclosure (37 CFR 1.56), all patent applicants in the U.S. must submit all prior art known to them and "material" to the patentability of any claim.

The thing is, it doesn't have to. Copyright law clearly has an exception for useful articles or things that provide a utilitarian function, so exactly the thing that Lexmark is trying to protect under a claim of copyright is likely voided by this exception. See more details of this here.

Note also that this same exception might well exclude the "copyrighted" code that Microsoft claims is a copyright violation in X-box mod chips. Copyright was never intended for this sort of thing, and the exception makes it pretty clear that the writers of the law didn't want copyright to be abused this way.

I know that renewals are an option. But on March 1, 1989, there were some changes enacted to bring US copyright in line with international standards. One of those changes according to this bitlaw article was that you were no longer required to make an explicit statement of copyright to preserve your copyright.

I was working in a university at the time and I thought I recalled that the requirements for registration no longer applied. It appears however, that registration never applied, but that after 1989, failing to register did not cause you to lose as many rights as you did beforehand.

It is still the case that you must register before initiating a lawsuit over copyright.

I still think that this 1989 change could be a factor in the 1991 drop-off of copyright registrations.

This tells us two things: (1) attempts to restrict our fair use of [fill in the blank] is evidence that some very powerful people don't understand copyright law; (2) some very powerful people are willing to sacrifice the freedom of those who don't break the law (legitimate gun owners, legitimate users of CD/DVD-copying software, etc.) in order to dissuade criminals.

That's called taking the easy way out. Com'on, guys, we elect you to cushy jobs where you get paid $130,000+ (tax-free) so you can be creative and actually get stuff done for us!

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted

Marvel's lawyers don't have a leg to stand on!!!

I took a look at the full context of the letter from Marvel's lawyers to the admin of the Skin site. Just for kicks, I looked up the full context of the '1976 Copyright Law' and the Federal 'Lanham Act'.

What I found was that Marvel's lawyers are totally bluffing and don't have a case.

There are specific sections of both of these laws that totally protect 'The Skindex' and prevent Marvel's lawyers from ever filing a lawsuit.

Here's the info that I found:

1976 Copyright Act

Most of the Act focuses specificaly on or implies works of Music, Movies, Plays, Computer Programs, or even Boat plans. Nowhere in this Act is there any sort of law governing the Skins.

Or so I though.

Buried in Section 109 Sub-Section (b)(1)(B)(i and ii) of this code (Page 22 of the PDF near the bottom) are two exceptions that place Limitations on the 'Exclusive Rights' Marvel is alleging Mr. Benson is infringing on:

(B) This subsection does not apply toâ"

(i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or

(ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

Other than that there is not a single word in this Act that Marvel can use against this Skin site.

Lanham Act

This is a REALLY easy one. Since 'The Skindex' is a 'not for profit' site they are protected from a lawsuit under 15 U.S.C. Â1125 of The Lanham Act. Section (C)(4)(A-C) States (Specifically C-4-B):

(4) The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

(B) Noncommercial use of a mark.

(C) All forms of news reporting and news commentary.

These guys need to hire a lawyer, fast and tell Marvel where to go!

Dolemite
___________________________________

IANAL. This is wrong. It's illegal for you to make a "public performance" of the song. (Now, everyone who sang "happy birthday" as a class in school, please make your royalty check payable to...)

Actually it's specifically covered under 17 USC 117. "Copying" to RAM is clearly an "essential step".

I'm saying it will creap into everything, but in this post I'll just look at the browser. Each of the things I list below will slowly and steadily encourage you to use, then lock you into a Palladium browser. I made no effort to put the following list into any sort of order.

First there's DRM music and movies obviously.
Purchases of DRM content, then purchases of anything.
MS service packs, then software patches in general.
Pay tech support, then free tech support as well.
Advertizements, the page will only be viewable if you view the ad (many sites already try to do this with javascript).
Blocking deep linking, only the "front page" will be publicly linkable (many sites already try to do this with javascript).
Making HTML unviewable (many sites already try to do this with javascript encryption).
Pay database sites, then free database websites (meaning sites like mapquest, phonenumber look-ups and IMDB).
Locking access to entire pay websites.
Protection of ordinary free content like newspaper websites, then routine protection of all sorts of ordinary websites.
Managing logon to password sites so you don't need to type in passords. Then it will completely replace passwords, you'll only be able to log on to sites through Palladium.
Microsoft has already said they plan to move E-mail into Palladium. You wont be able to read Palladium E-mail unless you use Palladium too.

I'm a smart and creative guy, but I'm just one person. That's what I came up with off the top of my head. For each item I lised there will be several I haven't thought of.

Don't forget that everything on the internet - sound, animations, photos, text, html - EVERYTHING is copyrighted content that can be "protected" with Palladium. Every ordinary website is nothing but a collection of copyrighted items.

It's the network effect. Anything that is inside the "Palladium wall" can can connect to things on the inside and things on the outside. Things outside the wall can only connect to things on the outside. The more that moves inside the Palladium wall the more pressure there is to move your site inside the wall.

Internet Explorer is already "an integral part of the operating system". It's like the old browser war, but a thousand times worse. Over the course of a few years Microsoft and Palladium can swallow the internet itself.

And as I said at the start, this post just deals with a Palladium broswer. All sorts of software will be Palladiumized. Microsoft wants Palladium to be a ubiquitous and invisible part of the entire "computing experience".

There is a simple "fix" to Palladium and TCPA that they will absolutely never allow. It preserves every single claimed benefit of the system, yet eliminates every single abuse. The system is currently designed NEVER to permit the owner of the computer to see his own encryption keys. They could have an identical system that releases the keys to the owner only when he presses a physical button. This preserves all of the security and benefits of the system. Malicious software can never get the keys because malicious software cannot press a button.

They will never permit this because it gives control back to the owner of the machine if he wants it. The computer can no longer be used as a weapon against it's owner. It can no longer enforce DRM. It can no longer enforce monopoly lock in.

There is absolutely no defence to this argument. There is absolutely no valid justification to deny someone access to his own keys.

-

That's called swearing back of a reference, formally known as a Rule 131 affidavit, where the inventor makes a statement that "include facts showing a completion of the invention in this country or in a NAFTA or WTO member country before the filing date of the application on which the U.S. patent issued, or before the date of the foreign patent, or before the date of the printed publication." The particular reference can not then be used as a bar against the invention. However, the filing date (which determines the expiration date of the patent) is not changed, merely the date of invention.

That's called swearing back of a reference, formally known as a Rule 131 affidavit, where the inventor makes a statement that "include facts showing a completion of the invention in this country or in a NAFTA or WTO member country before the filing date of the application on which the U.S. patent issued, or before the date of the foreign patent, or before the date of the printed publication." The particular reference can not then be used as a bar against the invention. However, the filing date (which determines the expiration date of the patent) is not changed, merely the date of invention.

could I produce the prior art, overturning the patent?

Yup, you can cite it, challenge it, have it ruled on, appeal the ruling and realize your efforts

could I produce the prior art, overturning the patent?

Yup, you can cite it, challenge it, have it ruled on, appeal the ruling and realize your efforts

could I produce the prior art, overturning the patent?

Yup, you can cite it, challenge it, have it ruled on, appeal the ruling and realize your efforts

could I produce the prior art, overturning the patent?

Yup, you can cite it, challenge it, have it ruled on, appeal the ruling and realize your efforts