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Why? Is he saying that that those things were caused by discussing election results in the workplace? At least part of it seems to be addressing people's fears about their future in the company, as per the same-sex benefits and immigration status. And of course, net neutrality has a huge impact on Google's operations.

The short answer is Google avoids regulation, and limits that political organizations have on them as well as benefitting from protections that afforded under the DMCA for "(c) Information residing on systems or networks at the direction of users"
http://digital-law-online.info...

It's kind of hard to say they aren't acting as a viewpoint publisher/advocate and are eligible for those exemptions after seeing this video.

Hell if you are an advertiser, you might have a cause for a lawsuit on the basis they fraudulently represented their business practices to you.

No, CALEA is completely a different situation, and yes, as an ISP you would be required to conform to CALEA requirements as well. Safe Harbor is defined in the DMCA: http://digital-law-online.info....

That would be $150,000 per download / transfer to the 330 odd theaters (more if it was also sent to the ones that declined to show it), and one per copy sent to XBox video, Google Play Video, etc. Actuall performance of the song (showing the movie) isn't a copy

All that would be true if the movie were distributed on film. But it isn't. Case law is very firmly settled that copying something to RAM "fixes" it in the RAM and thus qualifies as a copy in the eyes of the law. So each performance in the theater and each streaming download result in at least one legally defined copy to the RAM of the playback computer.

If they cache them, and it is viewable, they DO have a responsibility.

Actually, the US Safe Harbor regs say that's not true. Why don't you do a little research before exposing your ignorance to the world? The link I posted took me less than five seconds to find. Sheesh!

From the link:

Subsection (b), service provider caching, exempts service providers’ making local copies of Web pages so that the pages don’t have to be fetched repeatedly over the Internet. Instead the cached copy is sent to their users. Service providers must honor any cache control requests provided by the communications protocol being used so that pages are not cached longer than desired by their creators, must not prevent the returning of information to the page creator about page usage, must honor password or other access controls, and must remove allegedly-infringing material if the material has been removed from its originating site. [Emphasis added]

Simon Phipps: What if all this effort could have been avoided simply be re-reading the law Congress wrote and understanding it differently?

Which seems much closer to what Congress actually had in mind, as http://ijlit.oxfordjournals.org/content/14/3/257.full?ijkey=rF2MI0t8NYrGuJJ&keytype=ref#p-88 has pointed out previously:

‘[t]he Federal Circuit erred’ in citing [in State Street] a 1952 Senate Report [82-1979(5)] to construe 35 U.S.C. 101 as encompassing ‘anything under the sun that is made by man’, whereas in fact these words are taken out of context from a phrase that proves quite the opposite legislative intention: one of ‘clarifying a limit’, which the U.S. Supreme Court, unlike the CAFC, still seems to have been aware of when making the initial quotation. [...] Congress actually expressed a restrictive aim by stating that ‘a machine or manufacture, which may include anything under the sun that is made by man, (...) is not necessarily patentable'.

Mod parent up.
The ruling further hammers the point by comparing the Atari vs. Nintendo ruling to the SEGA vs. Accolade ruling. A reverse-engineered implementation of a console "unlock" protocol was deemed infringing in the former case (despite not even being written in the same language) and noninfringing in the latter (despite being a direct copy). The judge points out the difference is in whether or not the API that was copied was the only compatible way to do it. In the case of the 10NES lockout, many alternative bitstreams could have been used to unlock the console, while in the SEGA case, the way the defendant did it was deemed the only sensible implementation*.

*IIRC, gurus in the SEGA case with intimate knowledge of the hardware were able to come up with a couple hacks that proved there was at least one alternate sequence that could theoretically work, but the judge did not find this to be something the defendant could have reasonably known, as the copying of the "magic" sequence predated the existence of the lockout mechanism, and was done in anticipation of such a mechanism being deployed in the future.

A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result . . . .
A "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of that personâ(TM)s official duties.

Interestingly, note that in those definitions, the actual term "work" itself is not delineated, only different types of works: audiovisual works, collective works, derivative work, joint works, literary works, etc.

While there's judicial precedent for considering a computer program as a type of literary work (

"Thus a computer program, whether in object code or source code, is a âoeliterary workâ

...it did so in a specific context:

"...and is protected from unauthorized copying, whether from its object or source code version."

(Apple v. Franklin, http://digital-law-online.info/cases/219PQ113.htm) I think you might have hit upon not just a technical loophole but one that points to informed underlying public policy -- source code for things like voting machines, for example, should be open. Technically that's a matter of state, not federal, copyright since states run elections, but the public policy concern is the same.

Still, for TFA's category of software --internal accounting-- there are obvious conflicts to business interests: contractors would probably find such requirements detrimental to their business models. I believe that there's also a perceived security risk that outweighs any long-term security benefit. I imagine that most bureaucrats would think of opening the source in this kind of scenario as something akin to releasing the architectural plans for a federal building -- it would just make it easier for a malicious party to attack said program/building. It's that last concern --because it's actually a sincere one in most cases, and based on the reality that there are malicious parties who would like to attack such programs for any number of reasons and have already done so-- that I believe would probably be the biggest obstacle to getting the fed to move to open source.

Reverse engineering is the process of discovering how a system, through analysis allows one to determine how the system functions or operates. Therefore software engineers can analyse busybox code and create a technical specification of the system at a higher level of abstraction. This specification can then be handed over to another group of programmers who can then write code according to the specification written.

Under Sec. 103(f) of the DMCA (17 U.S.C. 1201 (f)) says that if you legally obtain a program that is protected, you are allowed to reverse-engineer and circumvent the protection to achieve interoperability between computer programs. The underlying question is, how protected is the busybox's code is?. In the USA courts have found contractual prohibitions (EULA) to override the copyright law see Bowers v. Baystate Technologies. To what extent cases like this can used is questionable and in Europe, Article 6 of the 1991 EU Computer Programs Directive allows reverse engineering for the purposes of interoperability.

The web site http://digital-law-online.info/lpdi1.0/treatise22.html provides further cases that make for interesting reading.

As mentioned in the OP, "just let the violation go and get on with developing better code.'", seems to me the best way to go.

Regards
Slashdotgirl

I'm glad you are quoting the constitution, but you are completely misunderstanding it. The clause you are referring to was specifically meant to grant the power to make copyright law. You are trying to interpret the constitution in a way that suits your needs, without the appropriate historical context. Let me explain:

The clause states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Based on the language of the constitution, the writings of the founding fathers, and the historical basis in the common law system, the constitution is specifically granting congress the power to make copyright law. One of the reasons the writers of the constitution did this was because the Articles of Confederation did not grant the government this power, which means each state had it's own copyright law. This was annoying for obvious reasons. And in case there is still any thought that it was not intended: James Madison, fourth president, "Father of the constitution" was the one who signed the first copyright law into effect.

Try this link for a bit of background for some background.

Your honor, the defense cites Sony v. Connectix: http://digital-law-online.info/cases/53PQ2D1705.htm

That's one decision, and it's also the only 'emulation' decision I can find doing a full text search of Nimmer on Copyright. That's not "many cases," as claimed. Also, there's no real discussion in Connectix with regards to the actual act of emulation; Connectix constrained its analysis to the issue of copying of Sony's BIOS for the purpose of building/testing the emulator. Not saying it's not 'good' law, but it's not very 'strong' law; it may even be dicta.

The current Oracle / Google case could prove interesting, as emulation of especially modern environments to me seems roughly akin to implementing an API (which Oracle is claiming can be copyrighted). Example, to build a vintage Macintosh emulator, it's not enough to implement the 68000-series opcodes, you'd also have to in some way implement QuickDraw and the rest of the Toolbox...

Your honor, the defense cites Sony v. Connectix: http://digital-law-online.info/cases/53PQ2D1705.htm

Although the case in question pertains to whether or not Connectix as a whole were engaging in copyright infringement by way of having "intermediate copies" of the BIOS for the original Sony Playstation, I would submit that the following statement in Judge Canby's ruling on the case is pretty definitive regarding both the legality of emulators as well as the subject matter (trademarks) with regard to which Atari are sending out C&Ds, though it has not been tried in and of itself:

"The intermediate copies made and used by Connectix during the course of its reverse engineering of the Sony BIOS were protected fair use, necessary to permit Connectix to make its non-infringing Virtual Game Station function with PlayStation games. Any other intermediate copies made by Connectix do not support injunctive relief, even if those copies were infringing. The district court also found that Sony is likely to prevail on its claim that Connectix’s sale of the Virtual Game Station program tarnishes the Sony PlayStation mark under 15 U.S.C. Section 1125. We reverse that ruling as well." [emphasis mine]

Fair use (17 USC 107) is a defense to infringement (17 USC 106), not to circumvention (17 USC 1201). These issues are separate. Universal City Studios Inc. v. Corley, 273 F.3d 429, 60 USPQ2d 1953, Discussion I.

Really? What 'rights' were those exactly? In any case they copied those ideas from an existing system, just as i said, so you can get off your high horse.

Read carefully. Apple paid Xerox for the use of their ideas. As for look and feel copyright, that was set earlier by Whelan v Jaslow, 3rd Circuit Appeals, 1986. The 3rd Circuit affirmed that look and feel can be used as a test. Their decision predates the start of the Apple v MS suit by two years.

By your standard then everyone copied from Xerox. There is a difference between rights and ideas, however. You can borrow ideas. Why Apple is suing (and has sued) is that they feel that companies have outright copied their designs. Take for instance, Volkswagen just unveiled the 3rd generation Beetle. It is not as bubbly as the previous two generations. If Honda came out with car that looked remarkable similar to the first two, you don't think VW would sue?

The Copyright Act also denies protection to discoveries. 17 U.S.C. Section 102(b) . The Supreme Court squarely addressed the issue of the protectability of facts in its recent opinion in Feist Publications, Inc. v. Rural Telephone Services Co., 111 S. Ct. 1282 [18 USPQ2d 1275] (1991). In Feist,the Court considered the copyrightability of a telephone directory comprised merely of names, addresses, and phone numbers organized in alphabetical order. The Court rejected the notion that copyright law was meant to reward authors for the “sweat of the brow,” and instead concluded that protection only extends to the original components of an author’s work. As to facts, the Court found that:

No one may claim originality as to facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. . . . [O]ne who discovers a fact is not its maker or originator. The discoverer merely finds and records.

111 S. Ct. at 1288 (internal quotations and citations omitted). Like ideas and processes, facts themselves are not protectable;however, an author’s original compilation, arrangement or selection of facts can be protected by copyright. Feist, 111 S. Ct. at 1289 ; Applied Innovations, 876 F.2d at 636 . However, “the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.” Feist, 111 S. Ct. at 1290 . In computer programs facts may be found at a number of levels of abstraction, but, will most often be found as part of data structures or literally expressed in the source or object codes.

The arrangement may be. The facts themselves are not.

Computer programs pose unique problems for the application of the "idea/expression distinction" that determines the extent of copyright protection. To the extent that there are many possible ways of accomplishing a given task or fulfilling a particular market demand, the programmer's choice of program structure and design may be highly creative and idiosyncratic. However, computer programs are, in essence, utilitarian articles -- articles that accomplish tasks. As such, they contain many logical, structural, and visual display elements that are dictated by external factors such as compatibility requirements and industry demands... In some circumstances, even the exact set of commands used by the programmer is deemed functional rather than creative for the purposes of copyright. When specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.

It is nearly impossible to win a copyright suit over a header file. The only chance you would have would be if it was a straight copy-and-paste which this was clearly not. The reason for this is that there is just not much room for creative expression in header files. Likewise, you can't copyright a word or a short sentence.

There are a very limited number of ways to declare functions. If someone was allowed to copyright certain function declarations then they would have control over a large segment of the software industry. Likewise, if someone was allowed to copyright particular words, they would have control over a segment of the publishing industry.

Don't forge player pianos, subject of one of the earliest copyright suits over technology.

Sega vs Accolade is a court case. I'll keep you from having to look it up as the grandparent asked you to: It concludes that you can't use copyright/trademark law to block interoperability. The case originally deals with some copied code necessary to make Sega Genesis (AKA Sega Megadrive) games work, but I would guess the court would likely apply same legal line to the ids in question. (The original issue that lead to Accolade doing the reverse engineering was that Sega charged licensing fees for producing cartridges; Accolade avoided these fees by reverse engineering everything, bypassing the check and producing the cartridges themselves.)

Eivind.

In some circumstances, even the exact set of commands used by the programmer is deemed functional rather than creative for purposes of copyright. "[W]hen specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement."

[...]

Sega's trademark security system (TMSS) initialization code not only enables video game programs to operate on the Genesis III console, but also prompts a screen display of the SEGA trademark and message. As a result, Accolade's inclusion of the TMSS initialization code in its video game programs has an effect ultimately beneficial neither to Sega nor to Accolade. A Genesis III owner who purchases a video game made by Accolade sees Sega's trademark associated with Accolade's product each time he inserts the game cartridge into the console. Sega claims that Accolade's inclusion of the TMSS initialization code in its games constitutes trademark infringement and false designation of origin in violation of [...] the Lanham Trademark Act. Accolade counterclaims that Sega's use of the TMSS to prompt a screen display of its trademark constitutes false designation of origin under Lanham Act section 43(a), 15 U.S.C. Section 1125(a). Because the TMSS has the effect of regulating access to the Genesis III console, and because there is no indication in the record of any public or industry awareness of any feasible alternate method of gaining access to the Genesis III, we hold that Sega is primarily responsible for any resultant confusion. Thus, it has not demonstrated a likelihood of success on the merits of its Lanham Act claims.

This legal issue was later revisited in a slightly different form (with mixed results) in Lexmark V. Static Control Components -- however, in that case, there was a lot more code involved than the boot ROM we're talking about here, so much more room for claims of expressive code.

> The pre on the other hand says 'Hey, I'm an iPod!'

Read Sega v. Accolade. If you try to abuse trademark law by using a lock-out measure that requires people to use your trademark to get past it, they are allowed to use your trademark for that purpose.

This case presents several difficult questions of first impression involving our copyright and trademark laws. 1 We are asked [977 F.2d 1514] to determine, first, whether the Copyright Act permits persons who are neither copyright holders nor licensees to disassemble a copyrighted computer program in order to gain an understanding of the unprotected functional elements of the program. In light of the public policies underlying the Act, we conclude that, when the person seeking the understanding has legitimate reason for doing so and when no other means of access to the unprotected elements exists, such disassembly is as a matter of law a fair use of the copyrighted work. Second, we must decide the legal consequences under the Lanham Trademark Act of a computer manufacturerâ(TM)s use of a security system that affords access to its computers to software cartridges that include an initialization code which triggers a screen display of the computer manufacturerâ(TM)s trademark. The computer manufacturer also manufactures software cartridges; those cartridges all contain the initialization code. The question is whether the computer manufacturer may enjoin competing cartridge manufacturers from gaining access to its computers through the use of the code on the ground that such use will result in the display of a "false" trademark. Again, our holding is based on the public policies underlying the statute. We hold that when there is no other method of access to the computer that is known or readily available to rival cartridge manufacturers, the use of the initialization code by a rival does not violate the Act even though that use triggers a misleading trademark display. Accordingly, we reverse the district courtâ(TM)s grant of a [24 USPQ2d 1563] preliminary injunction in favor of plaintiff-appellee Sega Enterprises, Ltd. on its claims of copyright and trademark infringement. We decline, however, to order that an injunction pendente lite issue precluding Sega from continuing to use its security system, even though such use may result in a certain amount of false labeling. We prefer to leave the decision on that question to the district court initially.

It's all there in the second holding. The courts won't put up with that kind of crap.

I realize that you're trying to distinguish what they're doing from User-Agent strings, but I don't want people to go around accusing people of trademark violations unless they can cite applicable law and precedent and apply them to the facts of this particular case.

Frankly, this is why I hate all that imaginary property crap.

What if the RIAA or other interests used fraud laws in distribution. "In reciting these words, I am {Corporation X}" or embedding a snippet of text "In distributing this file, I am {Corporation X}". This would work for Itunes (Apple) or Amazon or Corporation X, or Money Grubbing Individual Y.

Interesting thought, but it's been tried before.

The Sega Genesis would look for the word "SEGA" in cartridge ROM and, if found, show the message "PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD"; if the word "SEGA" was not present, the console refused to start the game. Accolade reverse-engineered this system and produced their own games that contained the word and printed the license message, even though Accolade had no license, which meant the statement was false. Their packaging, however, stated the truth: the game was not licensed by Sega.

Sega sued Accolade over this. The first court found in favor of Sega, but Accolade won on appeal. The appeals court found that this was a functional use of Sega's trademark, since there was no apparent way to make a functional game without using Sega's trademark and causing the message to appear. The court ruled that any customer confusion was Sega's fault for imposing this system, not Accolade's fault for doing what they had to for interoperability. (Sega even brought in one of their employees who managed to make a working cartridge that didn't show the message, as evidence that Accolade could've done the same thing. The court wasn't swayed, because there was no industry knowledge of this technique.)

Sega v. Accolade protects trademark infringement that is necessary for the purpose of interoperability:

Because the TMSS has the effect of regulating access to the Genesis III console, and because there is no indication in the record of any public or industry awareness of any feasible alternate method of gaining access to the Genesis III, we hold that Sega is primarily responsible for any resultant confusion.

http://digital-law-online.info/cases/24PQ2D1561.htm

Sorry but thats life - Copyright law covers distribution, not private usage, and this is private usage.

Funny, simply using software requires a 'usage' right from the copyright holder, since a copy gets made in ram for your private personal usage and goes no further, but not using a program in the exact way the copyright holder desires is still a copyright violation, even after no distribution in any way shape or form has happened.

If your statement was true, the judge would never have ruled loading a program into RAM was a copyright violation if done without the software authors permission.

http://digital-law-online.info/lpdi1.0/treatise20.html

You are ignorant and wrong. Software up to 1979 was not copyrighted (it was an "innovative" use of copyright by Bill Gates at the time that started this trend).

Could you provide a reference? The History Of Software Copyright page makes no mention of Gates, and talks about the first recognized copyright for a computer program in 1961. It also says "It wasn't until the early 1960s that computer programs were being actively marketed by a software industry besides the computer manufacturers.". So there was clearly a market for paid software. It talks about a 1976 copyright act that had been in the works for awhile. It also talks about a 1980 act that provided further details on the copyright of software.

So it doesn't sound to me like Gates invented the use of software copyright.

I did find the 1976 Gates open letter calling people who don't pay for software thieves, so clearly he was an early proponent, but that doesn't mean Gates started the copyright of software.

Anonymous Delivers. (Anonymous is a karma whore)

people don't infringe copyrights by remembering what happened in a story (even reading the story in a bookstore).

Citation needed. The "My Sweet Lord" case, Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976), established that people can infringe U.S. copyrights by remembering and accidentally copying melodies, a holding that has been upheld on appeal in the Second and Ninth Circuits. See ABKCO Music v. Harrisongs Music, 722 F.2d 988, 221 U.S.P.Q. 490, and Three Boys Music v. Michael Bolton, 212 F.3d 477 (9th Cir. 2000). This has made some people wonder whether it is even possible to write an original song anymore.

Good Will. Garage Sales. Then download them. It's just a Media Shift, it's gray area.

That is not what the judge said in UMG v. MP3.com . You have to make the copy directly from a Game Pak, not from the Internet.

Nobody can access the light projected on your retina, it's not a fixed copy. Nor are pressure waves a fixed means of expression. They are also transitory.

RAM is a question in the courts. The Ninth Circuit long ago held that RAM is a fixed copy for the purpose of copyright. See a description of the case, MAI v. Peak.

Intent doesn't matter in this area, unfortunately. It might under some kind of Universal Principles of Justice, but Congress didn't write the law that way.

In case anyone missed that reference, it is exactly what the FSF claims in the GPL FAQ.

Maison Fleury glosses over patent protection too glibly. The Open Source Software community has been aware of the threats from software patents for years, yet has done little more than argue that software should not be patentable. During this time, OSS developers have created countless innovations. Had some of these innovations been patented, software patents would not pose as much of a risk because the OSS community would have powerful leverage. Even the risk from patent trolls would be somewhat mitigated because OSS developers could withhold licenses for key innovations from potential licensors of the patent trolls' technologies, drying up all streams of revenue. OSS would also have greater political leverage because it would be easier for groups like the FSF and the OSI to point to the patents as evidence that OSS spurs innovation, not just high-quality craftsmanship.

Patent protection is known to be expensive. But, a lot of money has been invested in OSS. Some of that money could go to paying the costs of securing and maintaining patent rights for OSS innovations. Furthermore, many law firms encourage pro bono work. The OSS community could probably leverage those free legal hours as easily as it leverages developers' hours. The real obstacle to securing patent protection for OSS is political: OSS developers tend to boycott the entire patent system and hope that it will just go away. Unfortunately, ignoring the value of this form of intellectual property protection is a mistake.

Some of the rights that can be secured through software patents are much better suited to OSS goals than copyrights or trademarks. Some OSS developers try to bend copyright and trademark protection in ways that, if accepted, would be harmful to the OSS community, if not the entire software industry. For example, "[s]ome have claimed that an application program that needs a library for its operation is a derivative work of that library." This line of thinking would make Gimp for Windows a derivative work of the Win32 API, making Gimp a product that is ultimately owned by Microsoft. Using patent rights to exclude use of a library by non-OSS would produce the desired result of encouraging the development of OSS without distorting copyright law in such a self-destructive manner.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Patent protection for software is as inherently inappropriate as patent protection for genes. Patent protection for software only happened AFTER software became suddenly a big deal, the software industry has grown in spite of patent encumbrance, and I have yet to see a case where patent protection for software has "advanced the arts and sciences".

In the '70s there were those who believed that copyright protection was inappropriate for software, even questioning its basic need:

It appears that the existing network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and (in a few instances) patent forms of protection, possibly to be joined soon by Sen. Abraham Ribicoff's Computer System Protection Act - to {Page 31} say nothing of laws on fraud, larceny, breaking and entering, etc.-will be wholly adequate, as they apparently have been up to now, to the needs of developers. From Commissioner Hersey's dissent from the Final Report of the National Commission on New Technology Uses of Copyrighted Works recommendations on computers and copyright.

Many considered copyright to be an inherently wrong form of protection for software and questioned its need. How important would the GPL be if it had to rely a "network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and ... patent forms of protection?" Different forms of protection have different benefits and drawbacks for users, developers, and investors. Arguing, or merely asserting, that only one perspective has any merit does not demonstrate any attemt to weigh these benefits and drawbacks---such approaches are inherently unpersuasive to policymakers.

Once you realize this, then it becomes clear why NEU is being demonized. It's because they are acting like a demon.

In this demon-haunted world, dogma is an inadequate substitute for thought.

Not exactly. People would have a copyright on their software. So while you could implement it in your own fashion, you couldn't copy it directly.

The biggest problem (at least in the U.S.) that existed when it seemed that only copyright protection was available for software, but patent protection was not, was that people would make outright clones of innovative works (using the same ideas, but not the same code), the innovators would then sue the cloners, and then courts would push the doctrines of what copyright could protect.

Copyright protection is much easier to get than patent protection. All you have to do is write down something original and you have a copyright while patent protection requires an adversarial problem. The validity of copyright protection is harder to attack than the validity of a patent (it just takes one publication, anywhere in the world, any language, with all the limitations of the claimed invention, 12 months before the U.S. filing date or before the invention was conceived to invalidate a patent). And the scope of patent protection is defined by a patent's claims. What is the scope of copyright protection for a software application? Patents, which expire 20 years from the date of filing, are relatively short in duration. Copyright protection duration seems to be on a path to eternity.

There are problems with software patents. Patent protection for software "is too much, too long, and too late." But, eliminating software patents altogether won't solve these problems. People who invest in innovations will always try to find the most cost-effective ways to maintain a competitive advantage. For technologies that are easy to clone (which, today, seems to be just about every technology), there will always be pressure on the boundaries of whatever intellectual property rights are available. Eliminate the most appropriate protections and the pressure will cause warping of the protections left behind.

The only reason the patent was granted is because they determined if one click ordering was so obvious, why hadn't anyone done it before amazon?.. seriously.. There's a lot of things that are great idea's that seem painfully obvious when they come out on the market however since no one thought of doing it before, it's really not that obvious. Every single other shopping cart had assumed people didn't want to sacrifice security for the simplicity of one-click and sense amazon was the only one who assumed users don't give a crap about security they got a patent on what was, in all honesty, not really obvious.

Learn more about patent law..
http://www.digital-law-online.info/lpdi1.0/index.html

Didn't someone say that "Prior Art" was discovered in a "VoIP 'standard' " or something, a white-paper or something like that PRIOR to the filing of patents on the issue? If so, wouldn't Vonage have been able to use prior art to defeat the patents?

One of Vonage's defenses was that the Sprint patents were anticipated by or obvious in light of prior art. One set of proposed jury instructions proposed telling jurors that:

Vonage asserts that the Asserted Patents are invalid over the following prior art:

U.S. Pat No. 4,991,172
Priority Date: October 28, 1988
"Cidon"
Entitled: "Design of a high speed packet switching node"

U.S. Pat No. 4,491,945
Priority Date:
June 25, 1982
"Turner"
Entitled: "Fast packet switch"

U.S. Pat No. 5,115,426
Priority Date: March 30, 1990
"Spanke"
Entitled: "Broadband ISDN packet switching arrangements"

U.S. Pat No. 5,440,563
Priority Date: October 12, 1993
"Isidoro"
Entitled: "Service circuit allocation in large networks"

U.S. Pat No. 5,339,318
Priority Date: October 22, 1992
"Tanaka"
Entitled: "VPI and VCI assignment system in ATM system"

U.S. Pat. No. 5,544,163
Priority Date: March 8, 1994
"Madonna"
Entitled: "Expandable telecommunications system"

IBM Redbooks: IBM International Technical Support Organization Network Broadband Services (NBBS) Architecture Tutorial Publication
Date: June 30, 1995
"NBBS"
Entitled: "Network Broadband Services (NBBS) Architecture Tutorial"

That list did not make it into the final jury instructions. The final jury instructions also did not discuss obviousness (it seems odd that Vonage would argue that the Sprint patents were anticipated by prior art, but not obvious in light of prior art).

The final jury instructions also said that Vonage had to prove anticipation by clear and convincing evidence. At least one scholar has argued that this should be the wrong standard when a defense is based on prior art not considered by the USPTO during patent prosecution---that prior art that was not considered by the USPTO should be allowed to invalidate patent claims if the less-stringent preponderance of evidence standard is met.

Back in April Techdirt claimed that it found applicable prior art from 1996 and 1997. These references were not cited though because most of the patents based their priority on patent applications filed before 1996 and 1997. They did not add new material to the continuation patents; they persuaded the USPTO that the original disclosures contained enough novel, non-obvious material for different sets of claims.

Interestingly enough, there doesn't seem to be a lot of discussion going on about how Vonage is playing the patent game too. In 2006, Vonage purchased three patents from Digital Packet Licensing, Inc.. One of those patents, the '485 patent, was already the subject of law suits against MCI, Time Warner, Qwest, Level 3 Communications, Speakeasy, Globalphone, IPN Communications, Sentito Networks, AT&T, SBC, Sprint, and Verizon, although I do not know what the status of these lawsuits was when Vonage purchased the patents or what the status of these lawsuits now.

"Vicarious infringement results when there has been a direct infringement and the vicarious infringer is in a position to control the direct infringer and benefits financially from the infringement." From here.

Doesn't seem to fit, the library does not gain financially.

Any copy - and I mean ANY copy - made in use on a computer counts as a copy in terms of copyright law.

pop quiz: did you know that it's illegal to run a binary of a program you have on your hard-drive unless you are given permission from the copyright holder? It has been ruled that the copy from the hard-disk to system memory counts as a copy in terms of copyright law. Lame? Yup. Still legally valid? According to the federal courts, sure is.

Further reading on the topic:

http://digital-law-online.info/lpdi1.0/treatise20. html

You talk in the other message about copyright covering distribution, and then you say that GPLv3 also covers indirect distribution. Guess what, Einstein: the law (the real one, not Stallman's wordings on GPL) doesn't give a fuck about indirect distribution.

Sorry, we're talking about copyright law not whatever "real law" you're referring to.

Emerging case law would unquestionably extend to indirect forms of distribution such as vouchers. Microsoft may claim otherwise but a favorable ruling for them in this case would have disastrous effects on their core business.

Don't forget that the supreme court has strongly hinted it would rule to invalidate software patents if asked to rule on the issue.

Microsoft are not in a strong position here.

The company name (IBM, IIRC) was placed in the BIOS, and the software looked for it at a specific location. People trying to duplicate the BIOS found themselves on the wrong end of a trademark suit ...

Yes, but that's trademark law and not copyright law. Sega v. Accolade seems to invalidate attempts at locking in like this.

There's also a paper on Digital Law Online entitled "Unclear and Unconvincing: How a misunderstanding led to the heightened evidentiary requirement in patent litigation" that does a good job of giving the history of this subject and how it came to be so backward before this was "weakened" ... it's a bit long though.

Eolas v. Microsoft, 399 F.3d 1325 (Fed. Cir. 2005). Page 24 of the PDF. I quote:

Without question, software code alone qualifies as an invention eligible for patenting under these categories, at least as processes. See In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994); AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999); MPEP 2106.IV.B.1.a. (8th ed., rev. 2 2001).

The Supreme Court hasn't directly said software alone is patentable, but they've explicitly said they're not ruling it out (until they get a case where they have to decide it to reach a conclusion). In other words, the Federal Circuit's law is correct (for now). Here's the quote from Diamond v. Diehr, 450 U.S. 175 (1981):

Our earlier opinions lend support to our present conclusion that a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. In Gottschalk v. Benson we noted: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold." 409 U.S., at 71. Similarly, in Parker v. Flook we stated that "a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm." 437 U.S., at 590. It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. See, e. g., Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948); Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923); Cochrane v. Deener, 94 U.S. 780 (1877); O'Reilly v. Morse, 15 How. 62 (1854); and Le Roy v. Tatham, 14 How. 156 (1853).

Until and unless Congress changes their mind or the Supreme Court says otherwise, software IS patentable.

I wonder what would happen if some broke into a house, instead of taking away CDs, he just copied them and left, would the house owner be liable for copyright infringement?

If the owner derives financial benefit from the infringement, then yes, the owner could be held responsible for contributory and vicarious infringement.

http://digital-law-online.info/lpdi1.0/treatise14. html

It wasn't really a stupid idea. In copyright law, independent creation is a defense to infringement. Patent law does not provide this defense. Ascertaining the better approach is definitely worthy of debate. There's even a good article recommending software patent reform through a combination of a mini-patent registration system and an independent invention defense against claims of infringement.

There was the Nintendo vs. Galoob (the Game Genie lawsuit), and the Sega vs. Accolade (meaning that, basically, other companies could make unofficial carts legally).

"Congress has long recognized that it is necessary to make incidental copies of digital works in order to use them on computers."

See http://digital-law-online.info/lpdi1.0/treatise20. html

Basically, installing and running a program are allowed without permission from the copyright owner. This means you don't need to accept an EULA to install the program.

You're seriously asking me what harm an infinite-length copyright term could do? That's a remarkably low bar to set. We'll examine the effects of automatically-renewed copyright terms of long, but not infinite, length here in the United States.

(Bear in mind that to seriously argue for infinite terms, you'd have to show harm to the culture that wouldn't occur if terms were only five hundred years long, for instance. And "it enriches their descendants" doesn't count; we have copyright to promote science and the useful arts. Congress can hand me a stack of Benjies for no particular reason, and that'd be "good" for me, but that doesn't make it good public policy, and it absolutely doesn't promote science and the useful arts.)

If you'd like an example of how current culture always makes use of the past, and how that past has been taken out of the hands of creators, there's an excellent presentation by Lawrence Lessig.

If you'd like numbers, see Public Knowledge's statistics that of the 3 million registered copyrights from 1923 to 1943, only 2% of them were commercially used in 1998. I think tossing 98% of our culture from that period down the memory hole is a terrible thing to do. (The Lessig presentation has a bit about the role of a noncommercial life for many works--most of the books on Project Gutenberg aren't sold any more, but that doesn't mean they're not useful. Better to have them there than nowhere at all.)

If you'd like anecdotes, you can start with Save The Music's overview, then read anecdotes from researchers who had to change or abandon projects because there was no way to clear rights for orphan works, archivists and documentarians who can't use materials from companies that went out of business many years ago, or old folks who can't get their wedding photographs repaired if their kid tears them, or the Science Fiction/Fantasy Writers of America--hardly a bunch of Napster-licking college students--collecting anecdotes where the early pulp heritage of SF can't be reproduced or even preserved because early magazines folded, and no one knows who owns the copyright.

An Orphan Works system--or requiring copyright registration again--would address most of these concerns. But ironclad copyright of a century or more, let alone eternal copyright, is destructive madness which serves to enrich a few corporations at the expense of our culture at large, by locking up (until they turn to dust--essentially throwing away) any works which aren't commercially exploited any longer.

So, yeah, there's my evidence; the losses are far from being simply theoretical. Your house analogy is ridiculous for reasons pointed out elsewhere in this thread; no one short of Jack Valenti thinks that intellectual property should be administered the same way as physical property. You can read some of the Founders' thoughts on that. (As I keep saying, copyright is for the benefit of the culture at large; it rewards creators as an incentive to this end. It is, for this reason, a convenient abstraction, similar to physical property in name only.)

(Also, your distinction between "artistic" and "non-artistic" isn't the right one; you're thinking of creative and non-creative works. See Feist v. Rural; it's not your efforts that are copyrighted, but your creativity, once fixed in a tan

YouTube is very likely to be judged guilty of vicarious infringement if they do not find a way to keep copyrighted material from appearing in the first place.

First of all, you can't quote an amicus brief as proof of the actual law -- these things are often a statement of what people would like the law to be, not what it actually is.

I point you to Computer Associates v. Altai, a 1992 case, (It's online at http://digital-law-online.info/cases/23PQ2D1241.ht m ). A major quote: "if the non-literal structures of literary works are protected by copyright; and if computer programs are literary works, as we are told by the legislature; then the non-literal structures of computer programs are protected by copyright."

There is a split between the 1st and 2nd circuits about how far to carry this, but you can definately protect more than the raw code.

You are either unaware of, or are ignoring, Nintendo's history of anti-competition practices:

http://digital-law-online.info/cases/24PQ2D1015.ht m

Also, back in the days of the NES, they used to limit the number of titles that a publisher to release in a given year.

All three companies do what is in their own best interest, regardless of what's best for the consumer. Feel free to take sides, but you are kidding yourself if you think somehow Nintendo are the "good guys".