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This is a good idea.

If everyone has broadband they should be able to ditch the telephone and chat in real time over one of those IP telephony thingys. (Roger Wilco or CCFaudio or something similar.) The latency should be low enough to keep everybody synced up nicely, and it makes the long distance charges go away.

When streaming the voices to hard drive (assuming there's enough space after all the pr0n^H^H^H^H Christmas photos), 16-bit, 22KHz mono should be plenty, which will consume roughly 2.5MB/min or 150MB/hour. There's reason to believe this will compress fairly well with bzip2 so you've got lossless compression but Nate doesn't have to deal with 150MB email attachments.

Or you could try FLAC, which I have no experience with, but it might work better than bzip2 since it's lossless compression designed specifically for audio. Or if you don't care that much about audio quality, compress the voice streams to a 256Kb MP3 for emailing. See if I care.

And ultimately it'd be nice to see some OGGs for download as the final product. It being free software and all that.

Just for the record, I spent way too long crafting this message that almost no one will read.

Actually, there are (at the moment) some 27 amendments to the United States Bill of Rights.

Er, that's 27 Amendments to the Constitution as a whole.

"Bill of Rights" refers to the first Ten Amendments to the Constitution (and to those Ten alone), ratified a few years after ratification of the Constitution itself.

EC

> Most of the things which Americans and others accept as rights are actually priviliges - free speech. They have been granted by the state; they do not exist by default.

Bullshit. I'm free to say whatever I want. I don't need your permission ("privilige" aka "license") to talk.

Does the government create people, or do people create the government?

If people create the government, then the sovereign people ALREADY HAVE those right(s) (to free speech, to travel, etc.)

i.e.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;

This has been litigated to the Supreme Court level in a "Rails to Trails" case. The landowners won, and will get compensation.

> I'm one of many people who has concerns about the GPL's ability to stand up to a strong challenge.

If it's the inductive (or "viral") nature of the GPL that concerns you, I suspect that the well established covenant running with the land will serve as a suitable legal analogy for that part of the GPL.

--

In all seriousness, how could the MD's who performed this be so arrogant as to think that they had the right to act unilaterally, irregardless of the "safety" of the "procedure."

It will most likely be proven that this procedure is safe, after the fact. In the meantime I assume the donor mitochondria were screened for rare, but inheritable mitochondrial diseases?

After all, we do have a complete mitochondrial genome too, right? And of course we have been looking at it long enough that we know what a healthy mitochondrial genome looks like -- we can read it forwards and backwards, eh?

At the very least these "doctors" should lose their licenses. At the most they should be charged with crimes against humanity and brought before an international tribunal. The human genome carries the most fundamental definition of "human". To experiment with that, even at the simple level of mitochondrial manipulation without previous debate -- or trials in non-human subjects -- is completely inexcusable.

These babies may be OK. What if they weren't? Don't these doctors accrue some penalty for performing experiments on humans?

This may be "science", but it's certainly not good science. It may be beneficial in the long run, but it is purported that so were some of the experiments performed by the Nazis. The end does not justify the means.

I am by no means a Luddite, I do believe there is promise in genetic manipulation, and I welcome careful research. Unfortunately, this was not careful research. This was show-boating with God's toys.

Also, has anyone else heard about GIF-based encryption systems? Two approaches I have heard include (1) the GIF provides the key for a standard encryption system or (2) the GIF is the key to a masking technique (the message is embedded in the GIF by using a +1/+0 shift in the color bits for the pixels to hide the message in the GIF (sort of an electronic form of invisible ink). This latter was featured on a recent television program as a common technique for use in high schools. For more on this, visit steganography

Disclaimer: the company I work for develops biometric devices and algorithms

If I understand this, Amazon says that Trend doesn't count because the client's computer had to send something back to the server after the click that ordered the chart. Now... when does a modern one-click shopping system check the user's cookie to see who clicked on their one-click button? Doesn't it retrieve the cookie after receiving the click?

Does this mean that Amazon has argued that no actual one-click system using cookies is covered by their patent???

Chris

Yes, I wrote that post in haste, so I'll try to elaborate. I'm sorry I misunderstood your non-student status.

>Your eagerness to promote your egalitarian agenda
>is getting in the way of reading what was
>actually written.
You say "egalitarian agenda" as if it were a bad thing. Do you disagree with the second paragraph of the United States Declaration of Independence?

First of all, you're basing your argument about "average intelligence" on anecdotal evidence from your own life and your brother's life. Unless your brother teaches statistics, I don't see how his opinion is relevant. I also don't understand the importance of open-door Catholic schools to your point, since the average American isn't Catholic and doesn't want a Catholic education. You might also want to brush up on the First Amendment of the United States Bill of Rights if you do indeed believe that private schools are the answer to raising intelligence.

I am basing my argument on a social constructionist point of view. That is to say, people are mostly the product of their environment. Therefore, if the average student in your brother's classes aren't up to his standard of intelligence, then something about their surroundings is amiss. In my earlier post, I hypothesized that cynical teachers contribute to an anti-learning environment. In fact, a quick google search turned up this study, which confirms that teachers' expectations do affect student learning.

Of course there are stupid people in the world, and there always will be. However, it is elitist and undemocratic for people in power, (read: teachers and lawyers) to assume that the average person is hopelessly stupid.

Here's the full Judgement. It's from Feb 14th, but it seems to have all the phrases quoted in the articles so I assume some other news got in the way!

No it is not. Getting a patent costs next to nothing (more time than money). Having several patents looks good to investors.

Domestic software patents cost between $15K to $25K apiece. I'm glad that is "nothing" to you.

The main use of patents is not to get royalties, but to shut down competitors via injunction and protect a monopoly. Injunctive relief can be obtained before a trial begins, then delay tactics further bleed the defendent.

Temporary injunctions in patent cases are extraordinarily rare, except in the clearest of cases entailing literal infringement, and then only when there exists no plausible case against validity at the time of the hearing. Statistically, the number of injunctions issued each year are insignificant.

Defending against even the sillliest patent claim takes a lot of lawyer time. You may also lose customers who are concerned about your business' future.

Granted, this is true about most any lawsuit. It is particularly true about patent cases. The other side of the poker table however -- it costs a fortune to wage a lawsuit as well.

How much money was spent litigating the Festo case? Maybe Yahoo can afford it, but can you?

No. Festo was litigated from District Court through Summary Judgment and trial, then to the Federal Circuit and the Supreme Court. It was then remanded back to the Federal Circuit for an opinion before a three-judge panel, and then once more the entire Circuit en banc. The legal fees would be ruinous in virtually any scanario.

Such is the virtue of Stare Decisis. Now that the case has been decided, you don't have to fight that battle any more -- you simply cite it to your District Court judge, who will cower and apply it routinely.

One finds interesting legalese about IP law when searching Google for "Federal Circuit opinion Festo".

Hey, if you're that good at finding things, why not go one click deeper? One finds interesting substance when actually reading the opinion.

Seriously, of course the patent system (the legal system as a whole, in fact; but also the government, media and just about anything else) can be abused by an entity that cares not about the expenditure of arbitrary funds in an unrighteous cause. The point is that this is not unique to the patent system or to software patents, and that mere repetition of statements about an undifferentiated fear that an unnamed patent will be asserted against a non-profitable competitor, is just engaging in demagoguery.

You anticipate, without even seeing a single patent claim, that Google will be temporarily enjoined by the end of the first quarter and unable to raise a defense. Even without seeing a single patent claim, I doubt it, particularly in view of recent changes in the patent letter. Indeed, for precisely the reasons you raise -- the extraordinary expense of prosecuting a patent lawsuit -- I tend to doubt that the case would even be brought until Festo is addressed by the Supreme Court.

Of course, I would be interested in seeing the patent before I came to a considered, informed opinion.

So, write me again on the last day of March, and we shall see who was correct.

The decision that upheld the Virginia law (by the 4th Circuit) (which the Supreme Court declined to review) is available at:
http://www.law.emory.edu/4circuit/feb99/981481.p.h tml.

There, the 4th Circuit states:

"But, the Act does not prohibit all access by state employees to such materials, for a state agency head may give permission for a state employee to access such information on computers owned or leased by the Commonwealth if the agency head deems such access to be required in connection with a bona fide research project or other undertaking."

So it looks like research hospitals are still allowed to access materials, as long as they get authorization.

I do believe anyone could try to compete against the post office, it's just that they're so entrechened it makes no sense to attempt to under cut them, but rather offer a faster more efficient service than they do...

It's against the law to compete with the USPS. FedEx, UPS et al deliver things that the USPS either doesn't want to (packages) or generally can't (overnight). In fact, it's against the law to send something via an overnight service that doesn't actually have to be there overnight.

The USPS is a federally guaranteed monopoly.

Check this out.

I don't want the government telling me what is and what is not appropriate for my children. I'll make that decision.

Then quite frankly, you really should not be sending your children to an institution where the government acts in loco parentis.

In other words, if you don't want the government dictating the way your kids are raised, don't let the government raise your kids.

And this is exactly why the federal gov't should not be involved in education in any way, shape, or form. Where in Article 1 Section 8 of the Constitution is the federal gov't given authority to have any say in educational matters? Nowhere.

A Democratic president is expected to sign this into law. The Republicans no longer have this plank in their platform. Don't expect this to change any time soon. The Constitution party supports parental control of their children's education though. The Libertarians have a somewhat similar view. Limit the gov't to what it's actually allowed to do, and we'd be better off. Doesn't the Constitution matter any more?

We don't need vouchers. What we do need is for the federal gov't to not tax us for education in the first place. Let parents choose where their children go to school, and let them finance it directly, or at a county or state level. All the DOE is good at is wasting money while test scores continue to drop.

What I find more insidious, however, are the legal intricacies computer (and software) manufacturers employ to shield themselves from responsibility.

Anyone remember Hill vs. Gateway 2000?. In this case (I'm going from memory here), Gateway offered a 10th Anniversary Special computer to consumers that wasn't all it was advertised to be -- i.e. Gateway's ads said the speakers were "surround sound" and they weren't.

Mr. Hill took Gateway to court, and discovered, to his surprise, that the shrinkwrapped EULA inside the computer box prevented him from suing the company, regardless of their bad faith. Instead (according to the EULA) he was forced to submit to arbitration, which inherently negated any class action status for the thousands of other consumers who were blatantly defrauded by Gateway's false claims. Furthermore (due to the nature of arbitration), the verdict was kept secret, preventing anyone else who had been ripped off from benefiting from the arbiter's decision.

Sincerely,
Vergil
Vergil Bushnell

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The problem here is that plaintiffs in Copyright cases have a lot of clout to demand something more than a fair settlement, particularly in clear-cut cases -- the plaintiff invariably is entitled to an award of attorney fees.

I wonder if it is ever useful or interesting to comply with these off-the-wall demands for audits. Microsoft/BSA is simply attempting to obtain non-trade-secret free discovery, which they will use before or during any litigation to follow. At the end of the day, even those companies that comply seem to get no better treatment than those that opt to defend. Indeed, they have given up quite a bit. It is much, much easier for a plaintiff to make litigation decisions when he knows the value of the case before even beginning discovery.

On the other hand, let's get this straight. If you are using ersatz software without permission, you are, and in my view should be, liable. It is a good idea to audit your own software use, and to stay compliant. Period. The best defense is no infringement at all. Let me say that again.

The best defense is not to infringe.

If you do infringe, you should expect to pay the price. The question is, at the end of the day, what price should be paid? Microsoft/BSA lawyers love to throw their weight around in clear infringement/unauthorized use cases, demanding more than a reasonable fee for the infringement, claiming that it will cost the defendant so much to get a "reasonable verdict" that they might as well pay the extortion fee. This is because a prevailing plaintiff in a Copyright action is often awarded not only the damages, but also the cost of attorney fees.

There is an answer, however. An Eleventh Circuit case not too long ago, Jordan v. Time, Inc. held that because of a technicality in the Copyright Act, a defendant who makes a timely, formal "offer of judgment" under the Federal Rules of Civil Procedure can turn the attorney-fee tables when the plaintiff does not collect an award greater than the offer.

Making an offer in this fashion shifts the risk to the Plaintiff, since going to trial may result in a net award of attorney fees to the Defendant! One strategy to consider (the circumstances are different in EVERY case -- make these decisions only with advice of counsel) is to do your own due diligence with a lawyer, make an offer in writing, without agreeing to the audit. If it is rejected with a threat to sue, file your own declaratory judgment action with an offer of judgment attached. Now, they get to decide whether to risk paying YOUR legal fees prior to discovery.

Now, do not try this at home. A Copyright case is a tremendously complex cause of action, and zillions of subtle facts can swing results entirely. You should rely on the advice of counsel you have retained before taking any action in any case -- including a decision whether or not to comply with a demand for an audit.

But do make sure your lawyer knows about (and how to effectively use) the Jordan case to good advantage. :-)

The initial postings related to the novelty and unobviousness standards. Your posting addresses the subject matter questions. To be patentable, an invention must satisfy BOTH requirements: (1) it must be patentable suject matter; and (2) it must be new, useful and unobvious as those terms are defined in the Patent Act.

Your well-reasoned post relied upon informal interpretations of old cases, and thus does not reflect the present judicial view of the subject matter issue. The most recent cases make clear that patentability "is understood to be [based] not on whether there is a mathematical algorithm at work, but on whether the algorithm-containing invention, as a whole, produces a tangible, useful, result.

That is the ultimate test. Does the process/method/apparatus produce a tangible, useful result. And tangible does not require a physical thing, as you will see if you review the citation below.

The seminal case in this arena is the State Street Bank case, but the best description of how "tangibility" works into the matter can be found in AT&T v. Excel. Required reading for anyone who would discuss the subject matter requirement.

Certainly it would be nice to clarify the Supreme's view on the matter, but they denied Cert in both the State Street and AT&T cases. The Federal Circuit has exclusive jurisdiction over patent cases, so until the Supes speak next, this is the final word.

The Collaborative Computing Frameworks project comprises UNIX based tools for collaborative work on computers. I haven't has a chance to look at it properly yet, but it looks like ot may be able to help you.

People are willing to humiliate themselves on national TV for $500k, and backstab, lie, and suffer insect-infested open sores for a shot at $1G.

So I have not doubt that many will get into a hacking contest, trying to win $10k, where the downside is just vague concerns of abstract concepts being threatened in the future.
-----
D. Fischer

Again, we have the privelege of being able to use encryption to prevent snooping.

No, actually, that one's a right; Freedom of Speech.

Nowhere does our Constitution guarantee "freedom of speech, but only in English". We have an absolute right for that speech to be gobbledigook, or to merely seem like gobbledigook until the proper key is applied.

We desperately need a constitutional amendment guaranteeing us a right to privacy, including encryption and control of our data.

We just need for the US government to choose to sign the Universal Declaration of Human Rights and recognize it as a treaty; it would then override the Constitution itself per Article VI.

--

Unfortunately, if the Rambus patent portfolio is valid, they can do whatever they want with "immunity" to US antitrut laws.

About a year ago, the US Federal Circuit (the US court with jurisdiction over patent appeals, answerable only to the US Supreme Court) decided that enforcement of a valid patent can never be an antitrust violation.

The decision was Intergraph v. Intel.

This means the best way to resolve this is finding prior art; one bit of prior art has been found over at technocrat.net.

-doug

As one of the authors of CCFaudio I can make a few comments. IMHO, CCFaudio offers the best performance. It has a nice gui and gui operations do not interfere with sound quality as they do for most of the others. It works well on Sparc Solaris, Intel Linux, and SGI Irix. It should work well on any pthreads based unix.

It also offers good multiuser conferencing. Most of the others don't.

On the negative side, it is not compatible with any other iphone. Most iphones offer some standard protocols--vat being the first and there are some newer ones. It wouldn't be very hard to add compatibility modes to CCFaudio, but the funding ran out (it was developed as part of an NSF funded project). Feel free to hack.

CCFaudio can be used with CCFringer which provides a gui for establishing connections. It only works if the other user is using it, too, of course. It hasn't been widely tested.

Hope that helps,

Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are un-conscionable).

The US Constitution mandates that copyright be used to "promote the Progress of Science and useful Arts". Which do you feel poses more of a thread to this goal: trading music for free on the Internet, or using lawsuits and intimidation to prevent such trading?

(I'm afraid I've posted this too late for the moderators to see it, but I'd relly like to see Metallica answer this.)
--
Patrick Doyle

You oppose blocks on "communication in its free form"--may I assume you do so on grounds of free speech? If so, recognize that the First Amendment (which, provides, probably, the broadest legal protection of speech of any law, in any country) has not been interpreted to require that one relinquish ownership and control over one's own speech. One implication of your statement is that you oppose the right of a copyright holder to determine whether, how, when, and under what circumstances the copyright holder's speech is communicated. That is not a right I wish to relinquish, and it has nothing to do with money.

If the entire industry agrees to a reduced duration for sotfware patents, then shouldn't the patent office allow this?

They can't.

We're bound by a treaty, and according to Article VI, Clause 2 of the U.S Constitution, treaties are "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The treaty itself says that for any change in the time limits, the signees must agree UNANIMOUSLY.

The only thing we could do unilaterally is denounce the entire treaty, which (fortunatly) is allowed by the treaty itself. If that clause wasn't in there, we couldn't abrogate the treaty legally without agreeing to a new one with all the signees!

If we did denounce it, no signee nation would be required to observe our patents at all anymore!

It's a much bigger fight than just convincing your Congressman. He doesn't even have a say in it.

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.

The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to "include anything under the sun that is made by man." See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (quoting S. Rep. No. 82-1979, at 5 (1952); H.R. Rep. No. 82-1923, at 6 (1952)); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Despite this seemingly limitless expanse, the Court has specifically identified three categories of unpatentable subject matter: "laws of nature, natural phenomena, and abstract ideas." See Diehr, 450 U.S. at 185.

[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.' . . . [T]o be patentable an algorithm must be applied in a 'useful' way." Id. at 1373, 47 USPQ2d at 1601. In that case, the claimed data processing system for implementing a financial management structure satisfied the 101 inquiry because it constituted a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'"

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.

The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to "include anything under the sun that is made by man." See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (quoting S. Rep. No. 82-1979, at 5 (1952); H.R. Rep. No. 82-1923, at 6 (1952)); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Despite this seemingly limitless expanse, the Court has specifically identified three categories of unpatentable subject matter: "laws of nature, natural phenomena, and abstract ideas." See Diehr, 450 U.S. at 185.

[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.' . . . [T]o be patentable an algorithm must be applied in a 'useful' way." Id. at 1373, 47 USPQ2d at 1601. In that case, the claimed data processing system for implementing a financial management structure satisfied the 101 inquiry because it constituted a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'"

Shrinkwrap licensesare enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable). Because no one argues that the terms of the license at issue here are troublesome, we remand with instructions to enter judgment for the plaintiff.

To the extent licenses facilitate distribution of object code while concealing the source code (the point of a clause forbidding disassembly), they serve the same procompetitive functions as does the law of trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 180 (7th Cir. 1991). Licenses may have other benefits for consumers: many licenses permit users to make extra copies, to use the software on multiple computers, even to incorporate the software into the user's products. But whether a particular license is generous or restrictive, a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced.

I my opinion are mathematical truths discoveries not inventions and should therefore not be patented. You could argue that they are inventing an implementation, but the mathematical principle behind this idea is discovered, not invented, and should thus not be patented.

There is little disagreement on this point in theory. Indeed, the preceding remark is a reasonable statement of law. Recent cases still hold that "[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.'" The cases agree with your proposition that "to be patentable an algorithm must be applied in a 'useful' way." But distinguishing between the "idea" itself and an implementation is where the real heat lies. Under present cases, all that is necessary is to be able to argue that the claim is directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'

So, how would you refine your statement to distinguish the present state of the law?

There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.

I understand that shrinkwrap licenses are not something that you are happy with, but they have been allowed to stand. In Pro CD v. Zeidenberg the Court of Appeals of the 7th Circuit has held that shrinkwrap licenses are enforcable.

I note that the appeals decision specifically states that "Shrinkwrap licenses are enforceable unless their terms are objectionable on
grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are un-conscionable)." Now I agree that many clauses of shrinkwrap agreements are un-conscionable as they take away rights granted by Federal Copyright law. I hope that we get a good case to test some of these clauses.

Your "freedom of speech" example is not a good one because there is no specific Federal law declaring unlimited free speech rights. Even if you do sign an NDA, you can be held accountable for your speech, but you can't be prevented from speaking. "Prior restraint" has been held to be unconstitutional.

Let's say that in the course of your work, you discover a situation which has implications for the physical safety of others (perhaps a bug in a medical device). You argue for complete and immediate disclosure of the bug, but the company with which you have contracted has you under NDA and refuses to ackoledge the bug. You chose to violate your NDA and make a public disclosure. There may be consequences of your speech, but you can't be locked up to prevent you from speaking.

There is a case (ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) ) which ruled that "shrinkwrap licenses" are valid contracts. What is necessary for a valid contract is a "meeting of the minds" i.e. the terms must be available and agreeded upon. One means of demonstrating a meeting of the minds is a signature, but it is not the only way. Behavior can constitute an acceptance of terms.

The ruling was that shrinkwrap licenses are valid on their face. It is not a ruling that all terms in shrinkwrap licenses are equally valid and enforcable. The important part of the ruling is that terms of a shrinkwrap license that are "objectionable ongrounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are un-conscionable)" are unenforcable.

However, word of mouth on the internet (email especially) is a very powerful force. How else can you explain the Mahir phenomenon?

certain things can gain instant attention. Anybody seen the Hampsterdance? (on the TV *net commercial) or the Mahir you have referred to, featured on the Daily Show, no less. But, for a viable commercial entity this kind of stuff doesn't work. If I start spamming my friends telling them about how great /. is, I doubt the response will be as good as it would be for something like this. E-mail friend marketing is only good for a momentary laugh, not a high-speed million dollar long term Internet business.

And who says the blanket spam/popup/banner ads crap that AOL does are all that effective anyway?

These guys and these guys and these folks, (and others that take more than 15 seconds to find) the basic consensus is that these types of ads work better, but annoy folks. Howver, newbies won't realize that these ads should be annoying, will accept them as normal, and outweigh the clued by a large enough margin that media providers like, oh, say, AOL, can ignore user compaints and keep painting my rare earth elements with crap.

Music is a whole 'nother story, I think we can win that one. And I agree with the big busines imploding idea, IBM is a great example. But, AOL owns ICQ, and Shoutcast, and Winamp (yes, I know about icecast, and *cq and XMMS). I've ranted about this topic enough (check my info page), so I'll stop now.

A quick recap: The defendant bought a software/database in a retail store. The terms of the license limited use to 'personal use only'. Commercial-use licenses were available for a higher fee. The defendant than made the software/database available for a fee on his web site.

The defendant argued that it was a purchase because he was not able to read the license before he paid for the product so it was a purchase and the license did not apply.

The judge did not buy that arguement. First, the defendant bought the same software package the previous year and the terms of the license had not changed. Second, the license gave him the right to return it for a refund if he did not agree with the license. (Note: he did not try to return it for a refund. It would appear that buyers of laptops with Windows preinstalled that tried to get a refund are not bound by the EULA.)

None of the questions you asked were issues in the trial so their was no ruling on those. No court has decided if those particular restictions are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).

I have seen dozens of postings in Slashdot recently along the following lines:

Algorithms cannot be patented. No matter what you may think about that; that's the law. The idea that you can't patent an algorithm, but you can patent the concept of implementing that algorithm in software is simply absurd, and we won't get out of this mess until software patents are rejected.

This is a wild overstatement of the law. While it is true that there exists a narrow class of abstract "mathematical algorithms" that are non-patentable per se, the more general statement about algorithms is clearly false. The term, "mathematical algorithm" as used by the courts is not the same as the term is used by "computer scientists," and refers only to claims directed to the most abstract account of a narrow class of mathematical algorithms. This issue has now been well-settled by the courts in Diamond v. Diehr, State Street Bank and the cases, and is no longer considered an open legal question (except, it would seem, on Slashdot).

And even then, the application of an algorithm to a problem (whether in software or otherwise) can be patentable even though the algorithm itself might not be patentable. Indeed, an unobvious selection of a prior art algorithm to solve a particular problem can itself be patentable. The "mathematical algorithm" rule is no more a bar to patents on applications of a "mathematical algorithm" than the "law of nature" rule is a bar to patents on an apparatus that relies on the law of gravity. While it does still have force, the importance and practical import of this rule is still wildly overstated by opponents of software patents.

If you wish to be an effective advocate for your cause, it is imperative that you learn what is, and what is not, the law so that you can criticize it intelligently.

The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).

From my understanding, your point is totally correct. The purpose of a trade secret is to provide a legal means of prosecuting when somebody "spills the beans" and discloses stuff they've seen, such as what Xerox should have done with Steve Jobs at the PARC with their GUI interfaces.

In terms of DVD technology, this is a house of cards that is ready to fall apart from somebody trying to poke a hole at it.

Take a look at the DVD Licensing Agreement if you want to look at some perverted licensing agreements. This IS the trade secret agreement the DVD licensing authority is going to try to enforce. The CSS agreement is a seperate license, but nevertheless it is still along the same lines of thought.

The authority of the intellectual property agreements come from Article I, Section 8, clause 8 which says: "The Congress shall have Power...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;" Since trade secrets don't have a time limit (at least the DVD Forum's doesn't) I can't see how it can promote the progress of science or art.

Please let people know how silly the DVD licensing agreement really is, and how the DVD Forum is actually preventing the development of DVD technology as a video medium. You would be able to have your home movies on DVD for $1 + video transfer costs right now if it weren't for the stupid licensing requirement that are actually preventing people from exploiting the technology.

Imagine just what the WWW would be like if you had to pay $10,000 to obtain the specs for http, and deciphering shttp would get you into a similar lawsuit like this one over deCSS.

Although software itself is not patentable (and should not be), technologies and algorithms definitely are.

The above-quoted statement is a restatement of a common misconcetion about patent law. It mistates the law, at the same time, by overstating and understating the scope of patentable subject matter. It overstates the scope of patentable subject matter, in that there exists a narrow class of abstract "mathematical algorithms" which are non-patentable. It understates that scope because software, "itself," is most certainly patentable in some cases. Claims directed solely to software have been allowed by the PTO and enforced by the Courts under the United States Patent Act.

The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).

If the lawyer properly framed the claims, it is these days almost frivolous to argue the validity of a software patent claim on subject matter grounds. The only issue is the traditional question as to whether the invention was novel, useful and unobvious, as those terms are used in the Patent Act.

The source for several old Digital Research products, including CP/M and GEM, has been released by Caldera. It's available at http://www.mathcs.emory.edu/~cfs/cpm/.

In the public hearing it was stated that there is a law "so-called Rule 56, which requires that that material prior art, of which the applicant is aware, be disclosed to the Office." It was said that they understand that it may be hard to comply to this rule. I looked through the patent but I could not find any references to prior art.

It's on the front page of the patent, for gosh sake! Also, you will typically find a prosaic discussion of prior art in the beginning of the specification. I commend rereading the patent, which can be found on-line in fulltext and .tiff format Significantly, the author of the patent affirmatively discusses and discloses two IBM written proposals, including a more general windowing approach.

So it seems even if there is prior art that this does not stop it from being patented if it is "sufficiently different" (see below). So exactly what role does prior art play in the patent process then?

The prior art determines whether or not the patent is valid. Prior art not disclosed during examination can be a basis for later invalidation, either by a suit in federal court, or by a process called reexamination. The Congress recently tried to "pump up" the effectiveness of third party reexaminations, but independent inventors bitterly fought against this, and a fairly lukewarm substitute is now pending.

From the excellent document What can be patented it states that abstract ideas (read: windowing for the Y2K problem) are not patentable.

While abstract ideas are not patentable, a particular approach toward "windowing for the Y2K problem" is almost certainly a patentable "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result". The Federal Circuit's recent decision in AT&T v. Excel explains very well the state of the law on the "mathematical algorithm" and "method of doing business" subject matter issues.

From the same document referenced in the above paragraph it also states that "The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention."

Be very wary of paraphrases, and understand that unobviousness in patent law is not the same as the common use of the term. This was discussed at length in a recentl slashdot discussion on patents. No flash of genius is required for patentability, merely that it hadn't appeared or been suggested in the prior art, taking individually or in aggregate form.

Notice also that the [Amazon] patent states that "one skilled in the art" will appreciate that the patent also covers other ordering mechanisms such as email. This is incredulous... this means that the patent convers all automated email-based order processing systems!

The claims are the thing to determine what is and what is not covered. It describes what is, and what is not, within the scope of the patent monopoly.

On a side note, on the US Patent and Trademark Office's web site in the definition of a patent they state that "US patent grants are effective only within the US, US territories, and US possessions." How exactly can this relate to the internet?

Whenever the invention is made, used, sold, offered for sale or imported into the United States, the Patent Act is triggered. The examples suggested by the author would probably give rise to claims for patent infringement within the United States.

The subject matter requirement. Software is not invalid merely because it relates to an algorithm, any more than a design for a catapult is invalid because it relates to the law of gravity. If the invention imposes structure beyond the most abstract account of an algorithm, that is sufficient. Like it or not, that's the law. No critic should enter the debate unarmed on this point. So, load up your ammo and study the most recent and authoritative statement of the law on the subject matter requirement.

The Novelty Requirement.Certain kinds of prior publication and/or public disclosures of an invention (in jargon, "references") can invalidate a patent claim if, but only if, the claim reads on the reference. A claim reads on a reference if, but only if, each and every limitation set forth in the claim appears in the reference. As an example, if my reference frobozinates an array by (i) prefreezing it; and (ii) using a dual coloration method to frobozinate it, and the claim is directed to: (i) prefreezing; (ii) slighly defrosting; and (iii) using a single coloration method, the claim is deemed novel because it has an additional step not found in the reference. If the claim is directed to: (i) prefreezing; (ii) using a single coloration method with a miracle dip, the claim is deemed novel because it doesn't have the dual coloration limitation. Finally, if the claim is directed only to the use of general frobozinating with a prefreezing step, this claim is not novel, because the claim "reads on" the prior art. (even though the claim doesn't include ALL the steps disclosed in the art).

The Utility Reqirement. This is not likely to be an issue, unless the claims are directed to something criminal in nature (automated locksmithing or cracking technology, perhaps) or something generally considered impossible (halting problem, perpetual motion, etc.)

The Unobviousness Requirement. As you may have guessed by now, this doesn't mean what you think it means. Unobviousness is essentially a way to "loosen" up the rigid (and easily avoided) novelty standard by stating that even if a single reference doesn't have every element of a claim, the differences between the reference would have been obvious to a person of ordinary skill at the time of invention.

In practice, you can best understand this standard by imagining a programmer version of the film character Vern. Dim-witted and not terribly self-aware. But Vern has a unique, almost idiot savant talent, he knows everything. Every book ever published -- every program ever publicly used -- every thing that legally constitutes prior art with respect to the particular claim.

So, if a claim is directed to an A, B and C; and one reference understood only by a handful of high-level computer scientist philosopher-kings discloses A and B, and another reference in a Ph.D. Thesis from the late 1900's with only a single copy remaining, but publicly available in a disused lavoratory in Lucerne discloses B and C, Vern would know both references.

However, Vern would not think to combine them unless it would be "obvious" to do so. Under the patent law, this basically means that there is a specific teaching to combine the particular references in one or the other of them (or in another reference). It is not sufficient to certify after the fact, when all the references are gathered and the problem is placed before you in view of those references, that you would think it obvious to combine them. Vern generally isn't that bright, unless the differences between the claim and one reference are effectively trivial design decisions.

So, in short, some relatively small number of references must combine to identify EVERY feature claimed, and there must be some reason to combine the references.

Conclusion. It is for these reasons that noone will ever claim a well-known program idiom. A claim directed to the idiom alone would be invalidated by a single program exhibiting the idiom.

On the other hand, the obviousness or non-novelty of a particular idiom does not render a combination of elements invalid unless the prior art (or an "unobvious" combination of prior art) contains all of the elements of the combination.

Clearly, the preceding discussion is (intentionally) a super-simplified description of the issues of validity. My efforts in describing the foregoing is to help my colleagues to develop an intuition as to what the law *is*, so that they can better articulate their criticisms of the system or of particular patents with respect to the law, and not to a straw man.

Just about any computer program that does anything useful and novel can now be patented, if the data it works on has some identifiable meaning in the real world.

The judgment also blew away a previous assumption that 'business methods' were somehow unpatentable.

IMHO this does make rather more sense than the (very confused?) European law I described above. On the other hand, the European patent offices are allegedly much better resourced than the US PTO; perhaps this is also part of the problem

I think this is more commonly understood although the media may not portray it that way. Just look at the health news: Every new study makes the news.

Check out: The Structure of Scientific Revolutions by Thomas Kuhn

He show's quite nicely that the questions asked and answers found by science are focused by the paradigms that are currently accepted.

It has been suggested in various postings that the validity of software process patents, in themselves, is still in question. Indeed, nothing could be further from the truth. After recent Federal Circuit cases, the validity of software inventions as patentable subject matter is no longer even an interesting legal question. The only remaining issue is whether the invention is indeed new and unobvious. For better or worse, the floodgates have been opened.

Since the 1983 Supreme Court case in Diamond v. Diehr (and in practice well before then), software patents have been issued. After recent cases in the Federal Circuit, there no longer remains any doubt from a legal perspective whether this is the case.

One case in particular, AT&T v. Excel Communications, Inc. articulates rather well and unequivocally the Federal Circuit's view on this matter. I highly recommend this case to anyone who would like to consider themselves well-educated on this subject.
The long and short of it is this:

"The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to 'include anything under the sun that is made by man.'"

It is now clear, for better or for worse, that any claim directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result'" is patentable under 35 U.S.C. section 101, provided, of course, that the claim is also directed to an invention that is new, useful and unobvious.

RIP, Gary Kildall, 1942-1994.

Obviously, one major concern is "Why go with RedHat?" My answer to that is "a standard". (Without starting a major war) I think people must realize that each distro is unique, each in there own ways (files in different location, libraries, etc..) RedHat is the distro that corporate America (and corporate Earth) sees in the stores, in the news, etc. So it is obvious, RedHat is here to stay and the "Corporation" likes stability. The next point I have is why pay when you can get it for free? Maybe I totally missed the mark but Emory University has developed collaberation software that works on Linux and has audio and video (I think) plus many other features. The source is wide-open and available now.

Comparison, maybe? Anyway, the Sepoy mutiny in India was partially sparked in 1857 because some Indian soldiers were jailed from refusing to use new cartridges. You had to bite off the end of cartridges before using them, and they had been dipped in a mixture of beef and pork fat, which are taboo to Hindus and Moslems. See this article, for example.

See ProCD v. Zeidenberg. The 7th circuit appeals court upholds the validity both shrinkwrap and point-and-click licenses.

>The ONLY reason we have navels is because of >umbilical cords. Since Adam was not grown in a >womb, of course he wouldn't have a navel. "I will take these cotton balls from you with my hand, and put them in my pocket." - Robin Hood: Men In Tights
On "stating the obvious."