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It was essentially abandoned property.

You may feel justified in taking something that has been ignored for many years. But legally you can't implicitly abandon your copyright. You have a copyright on your creations for many decades (in some cases 120 years).

(following is US law, but other countries have similar but not identical laws)
Trademark on the other hand does revert if not enforced. And there is no limit in duration.
Patents are active for as long as they are registered.(20 years, typically), even if you let people violate them for years.
Mask Works also work for as long as they are registered(10 years from start of registration)

Now for an analogy: If I didn't mow my property for 20 years, and your kids grew up playing on it without me saying a word about it. Would they be able to visit that property any time they wanted as adults? Do your grandkids automatically get to use it too. Now I put up a fence, and call the cops on your grand kids for trespassing. Would I be a total dick? Would I have a legal right to do so? (yes and probably)

I understand that old men with no clue have upheld software patents, but my argument is based around the plain language reading of the law that defines what can be patented. The law requires that only processes, machines, articles of manufacture, and compositions of matter can be patented. Software does not fall under one of these categories... http://www.bitlaw.com/patent/r...

Most legal scholars agree there is a strong argument against any software being granted a patent because there is no physicality to software, it is in essence a purely theoretical thing and therefore falls under copyright. You can patent the hardware that the software runs on, but the software it'self is an algorithm. It is knowledge (as evidenced by being able to be copied with no physical form). Unfortunately, software megacorps have wormed their way into the patent office, because patents give you an exclusivity that extends to the concept, rather than that specific work only... But that doesn't mean that software patents aren't actually a violation of basic patent law requirements. It just means that we have incompetents running the USPTO and sitting on the bench (big surprise).

Start here

Then read this. Pay particular attention to the 3rd paragraph under the implied license section.

Identity theft.

There is no such law. I asked for a citation — please, be exact.

Or more practically, try trademark dilution by tarnishment

Ok, that's better. But have you read that law? It states — right at the beginning — that it is only applicable to commercial misuses of trademarks:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact [....]

But that's my reading — IANAL... Seattle Times has plenty of lawyers — the law entitles them to damages. If they don't attempt to sue, then their legal department must have found, the law does not apply, contrary to what (some of) Slashdot thinks.

If this subscriber's account is operated by an employee of the service provider on the service provider's behalf, then the service provider would likely be deemed to have "actual knowledge that the material or an activity using the material on the system or network is infringing" or to have become "aware of facts or circumstances from which infringing activity is apparent" (quoting 17 USC 512).

Patent law defines "not novel", or anticipated by the prior art, as a reason for rejecting a patent application. Trademarks are not patents, as you point out, but that doesn't necessarily mean that trademark law lacks anything remotely corresponding to "not novel" inventions. Instead, a mark can be "merely descriptive".

Judging is exactly what he is doing.

The judicial branch has the power to interpret laws written by the legislative branch. The U.S. Patent Act does not specify software as patentable. Since the legislative branch has not amended that act to be more specific, with regard to software, it is up to the judicial branch to interpret. Even the 2010 Bilski v. Kappos rulling by the US Supreme Court left many questions unanswered on what is patentable or not with regard to software.

In case you were unaware, this is what title 35, Section 101 of the United States Code says about what is patentable

35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

If you are curious about the history of the courts conflicted rulings on what is patentable with regard to software I recommend you check out this link: http://www.bitlaw.com/software-patent/bilski-and-software-patents.html

Uh no. First Sale says that if I buy something then I can do anything I want to it and then resell it. And what Psystar claimed is that they paid for these licenses, and therefore if they wanted to modify OSX and give it away, they were entitled to do that. That's about First Sale law, not about Fair Use. Thanks for playing, though...

Please show me anywhere in the First Sale doctrine that allows you to modify and resell. Anywhere. In the context of modification, that is covered by 17 USC 117b

Lease, sale, or other transfer of additional copy or adaptation. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

This was covered in the judge's ruling had you bothered to read it. Pystar can give away unopened boxes of OS X; that was immaterial to the case. Their copies that were modified to run on PCs was copyright infringment. Unless you think you know more about copyright law than the judge.

I'm arguing that you don't have permission to utilize it which would also include the copying.

I don't need "permission" to utilize it.

That is where your argument rests on an incorrect assumption.

We no doubt agree that copyright grants copyright owners a variety of exclusive rights over the works they create, but who may -use- a work is NOT one of them.

Copyright owners have exactly 6 rights. They have the exclusive to authorize someone else or do themselves:
1) make copies
2) make derivative works
3) distribute copies
4) perform the work for the public
5) display the work to the public
6) broadcast the work to the public

That is ALL. The copyright holder does not have the exclusive right to decide who can perform, display, or otherwise "utilize" the work in a private setting.

From the copyright act itself:
http://www.bitlaw.com/source/17usc/106.html

Subject to sections 107 through 122 [17 USC Â Â107 through 122], the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1) to reproduce the copyrighted work in copies or phonorecords;

2) to prepare derivative works based upon the copyrighted work;

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;

4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Now, to address the situation of using a legally purchased copy of software:

sections 3 through 6 do not apply. The copy is not being redistributed or made available to the "public" in any fashion. The user is using it on their computer in a private setting.

1 and 2 absolutely do apply. Installing it on the hard drive is clearly making a copy, and it may even be transformed in some fashion in the process and the installed copy could even be argued to be an derivative work.

However, that's where the opening line: "Subject to sections 107 through 122" comes in. Section 117 explicitly allows for the copies and adaptations made as an essential step of using software. So you don't need copyright holders authorization to make the installation or in memory copies either.

You needed them to authorize the creation of the copy you purchased. Really that is all. So as long as the copy you are using was created with the authorization of the copyright holder you are not infringing copyright.

In fact, I'll go even further and contend that you don't even have to have LEGALLY obtained the copy. If you STOLE a book or CD or computer program (by actually physically stealing someone elses authorized copy) then you could not be sued for copyright infringment for possessing and using someone elses authorized copy of a book, CD, or computer program.

Of course, you still could and should be charged with theft.

Oracle may be quite justified in objecting to Google a) not properly implementing Java AND b) implementing it in such a way that it's close enough to real Java to conflict.

Quoting the grandparent.

By comparison, Google is neither claiming that Android is Java, nor will you find the Java logo (the coffee/tea cup) on any Android devices.

In short, Microsoft got busted for trademark infringement. APIs can't be trademarked. (Then again, I thought they couldn't be copyrighted.)

In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services.

http://www.bitlaw.com/trademark/infringe.html

See also: http://en.wikipedia.org/wiki/Trademark_infringement

odd that a [paid?] performance by a cover band (or worse, a tribute band) isn't a violation, yet if they sold a copy of that recording it certainly would be.

Both are violations.

Most places pay ASCAP fees or whatever, so you can play covers there without having to ask permission first. But that's because the performance license is already paid for, not because not because a license isn't required.

Some places don't pay ASCAP fees, and also don't allow covers. For Example.

The case ancestor brought up is for a live performance of a song by a cover band, which is not a copyright violation.

Yes, it is.

Most places pay ASCAP fees or whatever, so you can play covers there without having to ask permission first. But that's because the performance license is already paid for, not because a license isn't required.

Oracle's PL/SQL is an extension of SQL which, would be copyrighted by someone from the long long ago.

Actually, probably, Oracle. Oracle started when Larry Ellison took ideas embodied in an IBM whitepaper (the "R" DBMS) and implemented them; Oracle v2 (there was no v1) was the first commercial implementation of SQL anywhere. (IBM internally had a version called SEQUEL that differed in many respects from Oracle (then "Relational")'s SQL, and though I'm not certain, I'm pretty sure IBM's internal use didn't constitute "publication" required for copyright protection at the time).

However, given that a computer programming language is, by definition, a definition of a system of instruction -- the definition of a functional process, if you will -- which seems to me like it would implicate Lotus v. Borland and thus be not copyrightable. That is, a clean-room implementation of a compiler that used the language's syntax, but none of the protectable (assuming for the purpose of laziness an Altai Abstraction/Filtration/Comparison test) code from the author's compiler implementation, would seem to me to be A-Okay. (Though I have not researched it in any depth. This is not legal advise, yada yada.)

These recordings give us a good idea how crazy Copyright law has become. Under current copyright law, recordings made prior to 1978 but which weren't published until after 1978 fall under modern copyright terms. For personal works that's life of the author + 70 years. But fo anonymous and pseudonymous works (e.g. various performances recorded by the Edison company), it's 95 years after publication, or 120 years if not published. Since these recordings were never published, they fall under the 120 year term.

In other words, the 1889 recording of Otto von Bismark finally entered the public domain in 2009.

I still fundamentally disagree with you. They have to do much more than just use it to sell their own pharmaceuticals. They have to try to appear to BE like Merck. I don't believe having a link/page would do enough to cause trademark infringement.
http://www.bitlaw.com/trademark/infringe.html

Sanofi can do what ever they want with facebook.com/Merck, as long as it doesn't look like they're selling Merck products, or endorsed by Merck.

if they could have. At the time, Bell Labs was not allowed to sell software, and software was not patentable until 1981, so there was not a lot of incentive for Bell Labs to tie software-related stuff up legally.

DMCA. Repeat after me, DMCA. The fact arcade games are in proprietary ROMs or even soldered to the mobo, you removing them to "archive" or medium shift, it illegal in the US

Except that an Exception to the DMCA was made:

37 CFR 201.40 Exemption to prohibition against circumvention

1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software [...]
2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. [...]
3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

" in order for an invention to be patentable, it must not only be novel, but it must also be a nonobvious improvement over the prior art" - http://www.bitlaw.com/patent/requirements.html#nonobvious No joke, the "Upgrade" button is a patent the United States Patent and Trademark Office is currently holding as a protected I.P.. They've clearly failed to perform their due diligence regarding what are technical innovations versus only Trade Secrets. I believe the root of this problem is due to the exponentially faster timescales that complexity now shifts to merely being novelty. The speed of development in software fields is unprecedented and old schools of thought for decades long protections are antiquated. Considering the USPTO was designed to handle the slow advancement of a paper age however, it should come as no surprise to anyone that a paper dinosaur of old bureaucratic methods can't keep up.

Apple is also a generic term, being the name of a fruit. How about I try to set up a computer company using it? I could use some new innovative core design and call my company Apple-core.

Apple is a generic term for apples. It's not a generic term for anything else. Specifically with regard to Apple Computers, it's an arbitrary term, which is one of the strongest protected categories of trademarks. More info here or here, essentially layman's guides to the Federal Circuit decision in Abercrombie & Fitch Co. vs. Hunting World, Inc.

How many copies traverse routers without license

I don't know about foreign law, but 17 USC 512(a) appears to exempt the ephemeral copies made in the RAM of a router from liability for infringement.

it doesn't matter if program is reducible to mathematics, only that a claim for a software patent might be valid if it contains "a mathematical formula [and] implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect" http://www.bitlaw.com/source/soft_pats/final.html

That is the current law, last updated in 2005.

http://www.bitlaw.com/source/17usc/120.html

Sure it's like a database. But the database would be covered wouldn't it?

According to this, it would be in most cases.

I know there was a case about phone numbers where the database wasn't protected, but that hinged a lot on the law requiring the numbers to be published and publicly available/distributed to everyone in the local calling areas.

Single cases or single threats, law-enforcers and lawmakers can make go away easily.

Yes, it remains to be seen if competitors have simply copied Apple's implementation verbatim, or if they have reinvented the wheel. I wouldn't want to begin to speculate on such a specific case. As before, I'm more concerned about the overall picture, and the real threat a high number of patents pose to society.

I can very much understand why Apple is going down the patent-shaft though: If they've patented all their innovations, Microsoft would never have had the opportunity to become successful while they were small. Apple could've had a stranglehold on most of the booming IT-industry, and we would've probably been several years behind our current developments. The whole industry would've been much more fragmented and non-standard, which would line the pockets of already established corporations like Apple and IBM. Just imagine if IBM could've used patents against clone-makers in the early "PC" era..

Is it really that clear? The way many corporations have gotten away with already having been _granted_ "software patents" in EU is that the claims include texts such as: "an apparatus to operate in so and so manner", while it really is about some embedded program being part of a bigger unit, wether stored in a chip or on a harddrive. The invention itself is typically described as an "apparatus", which could be a microchip, an embedded device or a more generic computer (what's the difference?), interfacing with both hardware and software.

An apparatus is of course hardware and have been patentable since the start. All programs, software, are totally dependent on hardware, so you can never leave hardware out of the equation. Thousands of such patents tying hardware and software have already been granted in EU, but are as of yet, unenforcable since they really are software patents in disguise. There is a big corporate push, especially from USA corporations, to change the laws in EU to make these patents enforcable overnight though. So the minefield has already been prepared for EU. An entry point to this issue can be found here: http://eupat.ffii.org/

Software is simply an extension controlling hardware ("apparatus") in an algorithmic manner. Corporations are just pushing the limit of "apparatus" to include more and more generic implementations. Corporate goals however, conflicts in this case with the benefits of society and the mutual contracts we agree on.

As stated, when concerning an "invention", the borders between hardware and software becomes "fuzzy", however if I cannot convince you, then I must assume you are taking a more theoretical approach to understanding this issue. My understanding is concerning real-life decisions: Which patents should be granted and not granted by the Patent Offices, and what are the consequences of the current patents being granted every year, in both USA and Europe.

I'm by no means an expert, but this is the gist of my understanding of it, how "apparatus" have been abused to extend inventions to software. As a starting point, you could check out Bitlaw's history of software patents:

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

Software patents are as of now fully patentable in the USA and EU, and are also fully enforcable in USA contrary to the ambiguous status in EU.

Where to go from here? If only hardware is restricted by patents, corporations would try to put more control into hardware, which is both wasteful and backwards, contrary to the current trend of minimizing costs by putting more and more logic into software. Here, the patent system is holding back the progress and evolution of our society, and probably in many more ways than I've mentioned here.

Business patents are indeed ridiculous, I agree. But they are very real as well: http://en.wikipedia.org/wiki/Busine

If I show a short clip from a film just to prove that someone is an actor, how could this possibly NOT be fair use?

You are interfering with the actor's ability charge a fee to shoot a new commercial where he admits he is an actor.

See #4 in 17 USC 107 Limitations on exclusive rights: Fair use

I'm only half joking, BTW.

I've bought plenty of (English-language) textbooks that were originally sold to the Indian subcontinent; they're exactly the same between the covers as the American editions but priced quite differently

And probably with different pagination and different details in the exercises.

The catch is that there's a small but visible red box announcing that the book was for such-and-such countries and that any sale outside those countries is "UNAUTHORIZED"—which is true, but it refers to the publishers' contracts with their own retailers. They indeed do not authorize secondhand sale to the U.S., but that doesn't make it the least bit illegal or unethical.

Don't be so sure about the legality of parallel imports. The interpretation of 17 USC 602 is still being litigated over.

Not just absurd - it's patently false, too. When you own a copy of a software program, 17 USC 117 grants you the explicit right to make copies (or adaptations) as necessary to run it.

I suppose YMMV in jurisdictions like the 9th Circuit where courts are playing along with the lie that you don't really "own" the disc that you paid for, but elsewhere in the US, you're fine.

Then have the two programs simply be a binary 1 and binary 0.

You've never read Altai, have you? It, or a variant, have been adopted by every court that's had to analyze computer copyright issues since its deciding. http://www.bitlaw.com/source/cases/copyright/altai.html The 1 / 0 would be clearly excluded from a copyright analysis under the 'scenes-a-faire' doctrine.

if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there was no precedence the conclusions by the court were not activism as the courts were not trying to bring about change. And second, in reading some of the early cases that concerned software patents and the conclusions it becomes readily obvious that the decisions were in fact based on previous case law and 35 USC 100 through 35 USC 104. It was in no way judicial activism.

Yes, that's my point... It would be judicial activism to start carving out non-patentable subject matter from the list of process/manufacture/machine/matter, since the statute says nothing about "oh, and algorithms aren't patentable." Therefore, when SCOTUS said that, they were being activist. But we don't call it that, because it was the right decision.

In the case Diamond_v_Diehr where the tide turned and lawyers started to find ways of patenting software it may very well be judicial activism and there was a very strong and well reasoned dissenting opinion.

Not strong enough, or it would have been a majority opinion.

I cannot say without a doubt that it is judicial activism as that type of conclusion would require more research to understand how the the justice's came to their conclusions that seemed to change several years and cases of precedence. I will only say it is a possibility and that I believe the dissenting opinion was correct in pointing out the flaws and errors in the majority opinion.

Bear in mind that the most neutral definition of "judicial activism" is a judicial opinion that goes against the will or intent of the legislators who wrote the statute. It's the judges rewriting what the legislators did.
Given that broad and neutral definition, consider... Diamond v. Diehr was almost 30 years ago, and in that time, Congress has not amended 35 USC 101 to exempt software, in spite of the fact that they've amended 35 USC several times to comply with TRIPS and other treaties. So, Congress has essentially said "35 USC 101 is correct as it is currently written and interpreted." So, if the Supreme Court were to suddenly claim that software isn't patentable would be going against the past 30 years of legislative history. That would be judicial activism.

if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there was no precedence the conclusions by the court were not activism as the courts were not trying to bring about change. And second, in reading some of the early cases that concerned software patents and the conclusions it becomes readily obvious that the decisions were in fact based on previous case law and 35 USC 100 through 35 USC 104. It was in no way judicial activism.

Yes, that's my point... It would be judicial activism to start carving out non-patentable subject matter from the list of process/manufacture/machine/matter, since the statute says nothing about "oh, and algorithms aren't patentable." Therefore, when SCOTUS said that, they were being activist. But we don't call it that, because it was the right decision.

In the case Diamond_v_Diehr where the tide turned and lawyers started to find ways of patenting software it may very well be judicial activism and there was a very strong and well reasoned dissenting opinion.

Not strong enough, or it would have been a majority opinion.

I cannot say without a doubt that it is judicial activism as that type of conclusion would require more research to understand how the the justice's came to their conclusions that seemed to change several years and cases of precedence. I will only say it is a possibility and that I believe the dissenting opinion was correct in pointing out the flaws and errors in the majority opinion.

Bear in mind that the most neutral definition of "judicial activism" is a judicial opinion that goes against the will or intent of the legislators who wrote the statute. It's the judges rewriting what the legislators did.
Given that broad and neutral definition, consider... Diamond v. Diehr was almost 30 years ago, and in that time, Congress has not amended 35 USC 101 to exempt software, in spite of the fact that they've amended 35 USC several times to comply with TRIPS and other treaties. So, Congress has essentially said "35 USC 101 is correct as it is currently written and interpreted." So, if the Supreme Court were to suddenly claim that software isn't patentable would be going against the past 30 years of legislative history. That would be judicial activism.

if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there was no precedence the conclusions by the court were not activism as the courts were not trying to bring about change. And second, in reading some of the early cases that concerned software patents and the conclusions it becomes readily obvious that the decisions were in fact based on previous case law and 35 USC 100 through 35 USC 104. It was in no way judicial activism.

In the case Diamond_v_Diehr where the tide turned and lawyers started to find ways of patenting software it may very well be judicial activism and there was a very strong and well reasoned dissenting opinion. I cannot say without a doubt that it is judicial activism as that type of conclusion would require more research to understand how the the justice's came to their conclusions that seemed to change several years and cases of precedence. I will only say it is a possibility and that I believe the dissenting opinion was correct in pointing out the flaws and errors in the majority opinion.

if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there was no precedence the conclusions by the court were not activism as the courts were not trying to bring about change. And second, in reading some of the early cases that concerned software patents and the conclusions it becomes readily obvious that the decisions were in fact based on previous case law and 35 USC 100 through 35 USC 104. It was in no way judicial activism.

In the case Diamond_v_Diehr where the tide turned and lawyers started to find ways of patenting software it may very well be judicial activism and there was a very strong and well reasoned dissenting opinion. I cannot say without a doubt that it is judicial activism as that type of conclusion would require more research to understand how the the justice's came to their conclusions that seemed to change several years and cases of precedence. I will only say it is a possibility and that I believe the dissenting opinion was correct in pointing out the flaws and errors in the majority opinion.

A car is copyrightable in the same manner in which a sculpture is.

It isn't. It is prohibited expressly in Section 101 of the Copyright Act. A car is a useful article, which is ineligible from copyright protection except to the extent the form can be separated from its medium. The body of a car has no value as an independent work of art except as a derivative one meant to invoke the car itself. This recursive nature bars copyright protection.

For starters, see:
http://www.bitlaw.com/copyright/unprotected.html#useful
http://www.copyright.gov/fls/fl103.html

Salient quotes:
"Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.""

"Designs for useful articles such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright."

Design is not functional, it is aesthetic and aesthetics belong to copyright.

Design is often functional. The body panels of a car are industrial design--the integration of aesthetics and engineering. They are protected by industrial design registration and NOT by copyright.

If an artist would not create the work as an independent expression of creativity, but instead is applying his craft to a functional need of a useful article, then it is not a copyrightable work. Specific exceptions have been made by statute, but they are limited to isolated cases and are not generally applicable.

The USA has no law on software patents.

From 35 USC 101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." A software patent covers an allegedly novel method of information processing; how is such a method not a "new and useful process"?

Would you have a cite for that? I'd just like to check it out, not doubting you, just didn't know about that. I know the government takes patents all the time for "national security"**, or keeps them hidden under gag orders if developed "in house", stuff like that (refs: http://www.bitlaw.com/source/35usc/181.html http://www.newscientist.com/article/mg18725075.800-patents-gagged-in-the-name-of-national-security.html etc, google has a lot of hits on that) so I wasn't aware that IP seizure for crimes was illegal.

**some decent conspiracy theory out there about stuff like applecart upsetting energy related patents, etc, as well. That's how I first learned about "secret" seized patents. Ha! Stuff stacked up in that big warehouse at the end of the Indiana Jones and the Raiders of the Lost Ark movie

A commonly discussed scenario where implied licenses are destined to play a major role is on the World Wide Web. When a Web page is viewed in a Web browser, the page is downloaded through the Internet and placed on the user's screen. It is clear that a copy of the Web page is being made by the user. It is also clear that the Web page is protected against unauthorized copying by copyright law. But it would not make sense to allow the author of a Web page to sue a user who viewed her page, since the author intended that the page be viewed by others when she placed it on the World Wide Web. Rather, attorneys argue, courts should find that the Web page author has given end users an implied license to download and view the Web page. The extent of this implied license is unclear, and may someday be defined by the courts.

http://www.netatty.com/copyright.html That last one talks specifically about HTML copyright, but considering that a fair number of email clients are HTML based, I don't see it as being too far off the mark...

I'm not saying that it would be an easy case to win, but I am saying that there are "legal defenses" against someone just copying an email and posting it on Facebook. Sure, there are Fair Use methods of doing it, but not all cases would be able to claim fair use (especially if a "reasonable person" would assume that a message was intended to be confidential based on its content... Eg: "I'm only telling you this because I trust you: **Insert Some Secret Here**")...

There are several ways to avoid the restriction on reselling modified works. Generally speaking, you have to sell the work to the end user before any modification occurs. Once the user owns a copy of the software, you *can* legitimately make modifications on his or her behalf such that the copy can be utilized on a single machine. When the end user takes physical possession is irrelevant. cf. 17 USC 117(a).

then the 17 years of protection by the patents is pretty much over.

Don't worry. They've taken that into account and will now only pretty much sue the pants off those companies.

And if they published this information before they filed the patent then it's now in public domain anyways.

In some jurisdictions. From BitLaw:

One of the most important lessons to learn from this requirement is that there is a one year period after the first pbulic [sic] dislcosure or offer for sale of an invention during which a patent application must be filed. [...] Although the United States grants the one year grace period described in the last two rules above, most other countries do not grant such a period.

(a) Making of additional copy or adaptation by owner of copy. 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:

(1) 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

http://www.bitlaw.com/source/17usc/117.html

17 USC 117 applies to any "computer program"

Unless Nintendo manages to get a judge to rule that one of its games is primarily an "audiovisual work" rather than primarily a "computer program".

The thing is some countries have copyright laws that explicitly allow copying for backup purposes. I'm pretty sure the UK is one of these, pretty certainly for software.

The US is also one of these. 17 USC 117 applies to any "computer program", even one for a special-purpose computer like a game console.

violating Apple's copyrights and IP by making derivatives of OSX

As long as you do not redistribute the result, making an adaptation of an operating system that you have legitimately acquired a copy of as an "essential step" in the use of it on "a machine" is not a violation of Apple's copyrights let alone some other amorphous "IP".

See 17 USC 117(a).

I guess it's because those companies don't have those provisions in their license agreements

1. It is not settled law (to put it mildly) that the acceptance of a EULA is necessary to use a copy of software that you own. See here.

2. There is explicit federal law with regard to the right of a owner of a copy of a software program to modify that work as necessary to make it work on "a machine", provided that they do redistribute that modification. See 17 USC 1179(a).

But it has the exact same result it just saves me the technical difficulty of using and buying a copier.

17 USC 117 states that the owner of a copy is allowed to make other copies and adaptations (in this case the ROM dump) necessary for using the program on a machine (in this case a PC with an emulator) but not to redistribute such copies and adaptations.

Also it is illegal either way. Having a rom even if you created it yourself by format-shifting your real game is illegal, sorry.

U.S. courts in Sony v. Universal and RIAA v. Diamond disagree with you.

Also the game is 15years old, the system 20 so again I don't care.

That's still far less than 95.

Media that is out of print doesn't in anyway count as stealing since it is impossible to buy from the creators.

Hand out burned copies of Song of the South (or for that matter anything in Disney's vault) and see how long it takes Disney to be on your behind.

I am using a product that while illegal also has no possible legal way to purchase.

For one thing, SMRPG is on Wii Shop Channel. Even if it weren't, a copyright statute in effect where I live, 17 USC 109, states that it's not an infringement for someone on eBay to resell a lawfully made Super NES Game Pak as a "used copy".

Ever thought the law might just be wrong?

Commercial application repositories for mobile phones can't very well operate on the basis of "the law might be wrong".

I have not heard of and cannot find a single case of a person being charged for possessing roms on the planet.

Not necessarily possessing but distributing, or "inducing" distribution. If a company markets a device as ideal for emulation, the company is "inducing" the use of emulators. MGM v. Grokster .

You're misconstruing the law. If you buy OS X, you buy the physical media that contains software. You cannot make a second copy of the software without permission. This is textbook copyright law.

No, I'm applying a section of the law that you seem to be unaware of: 17 USC 117, which explicitly allows the owner of a copy of a software program to create copies or adaptations, or to have a third party make them on his behalf, as long as they are (1) for archival purposes or (2) necessary for using the software with a machine. This is also "textbook copyright law", unless your textbook is 30 years old.

What legal precedent says that I can take a piece of software, modify it, and sell that modification?

According to 17 USC 117, you can do the same thing in a slightly different order: sell the original, then modify it for your customer.

Since that's legal, and ends up with the same result -- the same computer is shipped out, with the same data on its hard drive -- why does it really matter whether they copy OS X before or after they take the customer's money, or whether they patch OS X before or after they copy it onto the computer?

And how do wholesale modifications count as "patches" ? They're not. It's a derivative work and any precedent regarding copyright law says that this is strictly forbidden.

"Patch" isn't a legal term. The derivative work in this case is an "adaptation", and since it's necessary to make the software work with a particular machine, it's specifically allowed by section 117.

I think the problem comes in when you image dump it to a bunch of commodity hard disks and sell hundreds of machines from the one copy you bought on the single cheapo Apple computer you bought.

Yes - like I said, their error was doing things in the wrong order, using a slightly different process to arrive at the same end result.

This is what you think is "stupid." That I should be able to, say, delete one of the mediocre filler tracks off of that $16 dollar CD and sell it for $8.

Essentially, yes, but note that software and music aren't the same under copyright law. You have certain rights with software you buy that you don't with a CD, and vice versa.

It's copyright. You can't copy it for resale. You can't make a derivative work for resale if you don't have the consent of the rights holder.

Right, but you can make that derivative work for your customer after you sell them the original, because that derivative work is an adaptation allowed by 17 USC 117.

I won't go so far as to claim that they were "right," or "good," but if folks don't like this, then they need work to change the law, because that's what the law says.

They don't even need to change the law. They only need to change their process. Psystar could have used a different installation process to sell exactly the same thing, legally.

This particular type of derivative work is also known as an "adaptation", which is allowed by 17 USC 117 since it's necessary to make OS X work with a non-Apple machine. Psystar just wasn't careful enough about the order in which they did things: to stay within the letter of the law, they should have sold the copy of OS X to their end user first, then made the adaptation on the user's behalf, instead of making the adaptation first and then selling a copy of it.

17 USC 117.

Psystar may not have operated within the letter of the law, but they certainly operated within the spirit, and their process would have been legal with some minor tweaks. They lost on a technicality.

But they are copying it. How else does it get installed on the hard drive?

17 USC 117 gives them the right to install it on the hard drive, and then to transfer that copy when they sell the original. (Alternatively: they sell the original to the customer, then install it on the customer's behalf, which is also allowed by section 117.)

Nonsense. Nothing gives Psystar the right to use the software in violation of the licensing terms.

See above. They don't need any license to do something that copyright law specifically allows.