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A few legal questions for our edification... (1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992). This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash. The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code? (2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation? (3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part? (4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard? In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions? (5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal? I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors? I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.

A few legal questions for our edification... (1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992). This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash. The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code? (2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation? (3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part? (4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard? In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions? (5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal? I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors? I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.

A few legal questions for our edification... (1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992). This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash. The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code? (2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation? (3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part? (4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard? In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions? (5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal? I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors? I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.

Cohen v. California, 403 U.S. 15 (1971) is the case you're probably thinking of. In Cohen, the court ultamately held that the government had no business regulating the "manners and taste" that an individual chose to express himself, absent a compelling gov't interest (i.e. Cohen's desire to incite disobedence to draft registration).

The consent decree was to include an injunction disallowing Microsoft to enter into any new non-disclosure agreements with developers or any exclusive contracts with computer manufacturers for 7 years. The district judge, refused to issue the consent decree, citing a book he had read called "Hard Drive" which alleged that Microsoft was sleazy. He was demanding that the Justice department also expand its investigation to include allegations that Microsoft had been guilty of pre-announcing non-existent products - commonly known as "vaporware."

He (Judge Sporkin) also allowed 3 companies to anonymously file a brief supporting the vaporware charges and over a month after the filing deadline no less. The Judge wanted the government to continue it's investigation and so refused to issue the consent decree on the grounds that it wasn't in the public interest as defined by the Tunney act 15 U.S.C. 16(e) (1988).

BOTH Microsoft and the Justice department appealed. Microsoft on the grounds that the anonymous filings were improper, the Government on grounds that the consent decree was in the public interest. The DC circuit court ruled against the Judge and remanded the case back to the district court with the instruction that it was to be handled by a different judge. They found Judge Sporkin to be grossly biased.

The appeals decision is important for two reasons:

1. It verifies what I've been saying all along: The Federal Government is suing Microsoft and isn't even alleging that Microsoft has broken a law. It is also doing so in a civil proceeding where it cannot possibly have standing because, there is no alleged offense, and there is no harm to the government.

2. From what I understand about the issue of standing, it is always considered. In other words you normally do not have to issue a challenge to standing because the judge presiding over the case is supposed to consider standing when any case is brought before the court. However I believe that it is sometimes challenged and I haven't found such a challenge in the case of Microsoft.

3. One would think, based on the rulings so far and especially this one, United States Court of Appeals D.C. Circuit No. 95-5037 June 16, 1995, that the government has never been able to show harm to itself:

   The government did not allege and does not contend_and this is of crucial significance to this case_that Microsoft obtained its alleged monopoly position in violation of the antitrust laws. The government believes that Microsoft's initial acquisition of monopoly power in the operating systems market was the somewhat fortuitous result of IBM choosing for its PCs the operating system introduced by Microsoft ("MS-DOS"), which, with Microsoft's successful exploitation of that advantage, led Microsoft to obtain an installed base on millions of IBM, and IBM-compatible, PCs.

   So Microsoft was lucky. How dare they take advantage of this situation eh?

4. The government (Justice Department) is attempting to create ex post facto law through the manipulation of the judicial system.

It's important to note that the government is so convinced that the practice of entering into exclusive agreements is NOT illegal that they do not demand in the original consent decree that Microsoft refrain from entering into them in the matter of the NT operating system:

The district court understandably questioned the government as to why the decree did not forbid Microsoft from using the alleged anticompetitive licensing practices with respect to all of Microsoft's operating systems (in particular, Windows NT products). But the government explained that Windows NT products do not have "a significant share of a relevant market at this time."

What you have here is a clear double standard. The Justice department is attempting to punish MS for it's success with Windows3.1 and perhaps Windows95, but is allowing MS to continue with practices it claims are "harmful" with WindowsNT.

This proves that the Justice department is either utterly clueless with regards to the software industry, or is only interested in getting a quick settlement and the resultant cash that would result. They are not in any way interested in creating a remedy for the software industry but in extorting money from Microsoft.

You can be sure that they do not give a hoot about MS competitors. Why? Because it is widely reported that Windows2000 will be based on the NT kernel. Therefore they have a solid legal basis by which they can continue their "anticompetitive" agreements.

Game, set and match Microsoft.

If the new consent decree is similar to the original, it will be entirely moot well before the 7 year prohibition is reached. To those who believe that Microsoft is a monopoly, this is horrible news. It proves that the government is totally inept. To those that believe, as I do, that Microsoft has done nothing wrong (that would include the Justice department) it is also tremendously bad news. The government will be effective in extorting and manipulating a company that has not broken the law.

Anyone and everyone is fair game for this sick practice. Keep cheering. But don't pretend to be interested in "fixing" the problem. This is about class envy and persuing an unpopular icon in the buisness community. If the Justice department can sue anyone willy nilly for not breaking the law, then everyone is fair game. That is everyone who is unpopular with the ignorant masses.

Findings of fact are generally not appealable. Findings of law are appealable. That means that Microsoft can appeal any legal conclusion arising from these facts, but they may not challenge the facts as determined by the judge here.

The facts are so extreme in the government's favor that they make the legal conclusion a no-brainer. Given these facts (from the quick scan I've done), it looks very very likely that the legal conclusion will be that Microsoft did indeed violate the Sherman Act (one of the main pieces of federal Antitrust legislation). The big question now is exactly what laws were violated, and exactly what the remedies will be.

For more information on Antitrust, see Findlaw's Antitrust Pages and Findlaw's Microsoft Antitrust Case Page.

Findings of fact are generally not appealable. Findings of law are appealable. That means that Microsoft can appeal any legal conclusion arising from these facts, but they may not challenge the facts as determined by the judge here.

The facts are so extreme in the government's favor that they make the legal conclusion a no-brainer. Given these facts (from the quick scan I've done), it looks very very likely that the legal conclusion will be that Microsoft did indeed violate the Sherman Act (one of the main pieces of federal Antitrust legislation). The big question now is exactly what laws were violated, and exactly what the remedies will be.

For more information on Antitrust, see Findlaw's Antitrust Pages and Findlaw's Microsoft Antitrust Case Page.

This is an over-simplification. One of the original intentions of the 2nd Amendment was to keep some control of military power in the hands of the States -- the AntiFederalists wanted a balance of power, in the face of initial skepticism that the new Federation wouldn't work. However, "most people thought that militias would not stand to be controlled by the federal government if that body were to begin acting oppressively." (1)

Whether the 2nd Amendment is interpreted as a State or Individual right, the Courts are unanimous in deciding that it is only a limitation on the Federal Government, not on the States (see U.S. vs. Miller). In fact, the States are free to manage their militias as they see fit -- and that includes banning guns. (2)

1: But, only muskets existed when that was written. They never knew that people would have machine guns(tm) and deadly-high-powered-assault-rifles(tm). By that logic, only books and newspapers would be protected by the First Amendment. Movies, TV, Radio and your beloved Internet would all be subject to regulation by the federal government

In fact, all are subject to regulation. No right has ever been interpreted without considerations of responsibility.

There are, and always have been, limitations on ALL rights. Unless you wish to extend the right to keep and bear ALL arms (including chemical, biological, nuclear, etc.) to you, me, your neighbor, and death cultists alike?

Note that this is not an argument against the 2nd Amendment per se -- just an extremist position that disclaims all responsibility. That may or not be yours.

3: But, it says "well regulated Militia...," so the government can "regulate" it as it sees fit. Today we use the term regulated to mean controlled. During the late 18th century, the term "well regulated" meant something like "in good woring order" There are writings from the time that refer to well regulated farms or foundrys.

This is a common "pro-gun" argument, and ignores the fact that while the term "well-regulated" could mean "smoothly functioning", it could also refer to exactly what we mean by it today. To quote Mark Pitcavage: "There is a continuity from the time of the founders (and before) through the nineteenth century through today, in which the term "regulated" as it related to the militia referred to regulations.

"'Well regulated' in the Second Amendment refers to the combination of state and federal regulations, as authority over the militia under the Constitution was divided between the two by the Militia Clauses. Most of the founders emphasized federal regulations, since that was what was at issue during the ratification debates. " (3)

In writings from the time referring specifically to the militias, Patrick Henry, James Madison, John Sullivan, Alexander Hamilton, the Federal Farmer, Benjamin Lincoln, Luther Martin, James Wilson, and David Ramsay (among others) all refer to "well-regulated" as meaning "controlled by regulations". Many, many other examples of the use of the term "regulated" as meaning "controlled" can be culled from the time period as well. (4)

1. Mark Pitcavage and Sheldon Sheps, "The New Militia FAQ", URL: http://www.militia-watchdog.org/faq1.htm .

2. Findlaw.com, "Second Amendment", URL: http://caselaw. findlaw.com/data/constitution/amendment02/index.ht ml.

3. Pitcavage and Sheps, "The New Militia FAQ".

4. Ibid.

Kythe
(Remove "x"'s from

Feist v. Rural
http://laws.findlaw.com/US/499/340.html

It's a very useful overview of the state of US law.

- Seth Finkelstein

Here is the Jacobsen vs United States case involving the man targeted in a child porn sting. Even though he was convicted and every appeal along the way affirmed the government's case, the Supreme Court agreed that the investigation as conducted was entrapment.

kidzero asks:
>Is he a child molestor if he didn't actually commit a crime?

A reasonable question. He's not charged with child molestation, but with "crossing state lines to have sex with a minor" -- and it's been recognized for some time that the target can be an adult law enforcement officer, but because of the defendant's predisposition to the crime, he is guilty. (Lack of predisposition is the crux of any successful entrapment defense -- such as the one you cited. That individual had to go all the way to the Supreme Court to be cleared, though.) This is one relevant Supreme Court case.

It's a smaller crime than actually molesting someone, but part of the purpose of these stings is media attention -- that is, ruined careers, friendships, etc. The idea is that they do enough of these high-profile arrests and fewer people will have the balls to go through with the real crime with real kids. In a word, deterrence.

Aside from the solicitation, though, Naughton was caught with a bunch of child pornography on his computer. Even if he gets a light sentence for the solicitation (which is likely), he'll still face imprisonment for the porn.

Read the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."


According to Findlaw :

"''The primary object of the constitutional provision in question was to prevent depositions of ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross- examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief''"


This essay goes on to state that while the Confrontation Clause is not identical with the hearsay rule, it generally leads to exclusion of evidence when the defendant has no opportunity to challenge its soundness though cross-examination.

Clearly concealed decryption techniques cannot be cross-examined.

Another Sixth Amendment right is the right to compel witnesses to appear in one's defense. This might very well include those who decrypted the message, in the event their testimony might turn out to be favorable.

"''The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law,''"

Compulsory Process

The consequence of violating the confrontation clause would be exclusion of testimony. The consequence of denying compulsory process would be a reversal or a new trial.

Read the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."


According to Findlaw :

"''The primary object of the constitutional provision in question was to prevent depositions of ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross- examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief''"


This essay goes on to state that while the Confrontation Clause is not identical with the hearsay rule, it generally leads to exclusion of evidence when the defendant has no opportunity to challenge its soundness though cross-examination.

Clearly concealed decryption techniques cannot be cross-examined.

Another Sixth Amendment right is the right to compel witnesses to appear in one's defense. This might very well include those who decrypted the message, in the event their testimony might turn out to be favorable.

"''The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law,''"

Compulsory Process

The consequence of violating the confrontation clause would be exclusion of testimony. The consequence of denying compulsory process would be a reversal or a new trial.

IANAL, but according to annotations to the Constitution available at FindLaw, in 1st amendment annotations (under Government and Power of the Purse)

In exercise of the spending power, Congress may refuse to subsidize exercise of First Amendment rights, but it may not deny benefits solely on the basis of exercise of these rights.

IANAL, but according to annotations to the Constitution available at FindLaw, in 1st amendment annotations (under Government and Power of the Purse)

In exercise of the spending power, Congress may refuse to subsidize exercise of First Amendment rights, but it may not deny benefits solely on the basis of exercise of these rights.

If you're attempting to demonstrate a straw-man argument, your own statement serves admirably.

The original poster stated:

I am less concerned with later judicial decisions regarding it; rather, what is important to understand is the intent of the framers when they wrote the amendment. Any future weakening of the constitution is invaild from the start, regardless of the Sumpreme Court decisions.

(emphasis added)

To which I replied:

If you want to ignore Supreme Court interpretation of the Constitution, you need to explain how laws are to be screened for their adherence to individual rights. Should Congress simply be trusted to pass laws that do not violate constitutional rights, as the constitution implicitly allows? (BTW, judicial review is based upon several areas of legitimacy, including the fact that the Constitution itself allows the Supreme Court to settle all disputes to which the Federal Government is a party.)

Nowhere did I defend the Supreme Court against abolition. Rather, I addressed his argument that Supreme Court decisions were invalid when he didn't like the findings. My question to him (or to you) is: how are you going to judge a "legitimate" interpretation of the Constitution? If you don't want the Supreme Court to be the final word, what will serve?

By your admission the Framers were a contentious lot, but somehow they all agreed that the Tenth Admendment wasn't supposed to be a break on the Federal government, huh? Isn't that convenient? I suppose that the First admendment is also "largely symbolic" too

It's not a matter of convenience; rather, it's a matter of public record. Anti-Federalists wanted to insert the word "expressly", to limit the powers of the Government to those specifically enumerated in the Constitution. However, the majority voted it down, presumably recognizing the fact that Government (and the Constitution upon which it is based) must change and adapt with the times. Most constitutional historians regard the 10th Amendment as the unsuccessful attempt to limit Federal powers that it was. You might want to check out what FindLaw has to say on the subject.

So is the very idea of rights in the first place! Your point?

I assume you're saying that rights are "what we believe ought to be". If so, we agree. My point was, I take issue with the previous poster's implication that the Supreme Court has somehow gone against some notion of "absolute rights". If you indeed agree with me, you should take issue with this, too.

My example of totalitarian societies was simply a refutation of the notion of absolute rights. It had nothing to do with whether "we in the US should tolerate the infringement,if not the outright denial of our rights".

Kythe
(Remove "x"'s from

It seems to me that if a cop has a search warrant or arrest warrant, that it would be fine to use this technology to execute the warrant. But without a warrant, no dice. It's an unreasonable search.

But the Supreme Court has ruled it is "reasonable" for a cop to peer through a window-blind. Why would it be unreasonable for an officer to use one of these devices in the same manner, without a warrant?

It's the clause that reads "No Bill of Attainder or ex post facto Law shall be passed." Read &graph url=&court=US&case=/us/3/386.html">Calder v. Bull (1798 for the binding precedent.

* California Business and Professions Code, Section 17538.45

* California Business and Professions Code, Section 17538.4

* California Penal Code, Section 502

The first two were the result of a bill by Gary Miller; the last (which sucks rocks) is from Bowen. I'm collecting all these resources (including full texts of the bills) for a site to be launched as soon as I get my Linux server to talk with my router. Until then, you can look them up on FindLaw.

--Tom

...isn't so different from traditional news, I'm afraid. I found the original article a bit murky - it sidesteps such questions as, how much would it cost to convert all existing driver's licenses to a version with an embedded microchip, for instance, and who would pay for it.

One thing I would expect from online articles about regulatory and legislative issues is links to relevant online documents; a few minutes' searching sufficed to turn up the fact that the "1996 law" alluded to appears to be "23 CFR Part 1331 (State-Issued Driver's Licenses and Comparable Identification Documents)". Having access to the actual texts that the article refers to would be a great first step toward letting individual readers conceive an informed opinion on the issues involved.

A great resource for those who are inquisitive enough to want to see actual texts is FindLaw. (Unfortunately, I can't seem to find the full text of the abovementioned text; either it's not available online, or it's not indexed at FindLaw. If anybody knows where to find an online version, please post ! I should add that I'm not a U.S. citizen - but I'm fascinated, in a quite amateurish and non-lawyerly fashion, with U.S. laws and legal structures.)

Sadly, Slashdot's own spin on this kind of news is no better than Wired's; all we see is the 'juicy' bits extracted from the original article, with a "this is scary" appended. I love Slashdot, but I'm concerned to see you guys give in to sensationalism a bit too often in recent days; IMHO, what digital news is all about is avoiding spin, and letting readers check out the (published) facts.

Without going off on a rant, this is wildly untrue. Scalia and Thomas in particular are adamantly opposed to rights to abortion or sexual privacy, and have been -- at best -- inconsistent on questions of free speech and court supervision of police conduct. If these are the friends of civil liberties, I'd hate to see the enemies.

I'd classify them roughly as:

Rehnquist, Scalia, Thomas: Fairly strict constructionists; generally, they'll defend the Bill of Rights w/o seeking to expand beyond original intent. For instance, they opposed a recent decision where the following sequence is grounds for suing a district:
1. Girl gets called names by boy.
2. Girl tells administrator/teacher.
3. Boy continues to call names.
4. Girl claims to be "hurt".

Boom, lawsuit -- against the boy AND the school.
This is the scenario that, apparently, Ginsburg (who, IIRC, wrote the majority opinion) has no problems with...
In the interests of intellectual honesty, the reader should know that this is a wild mistatement of the facts of this case, erroneous right down to the identity of the author of the majority opinion (Reagan's nominee, O'Connor). Here's O'Connor's description of the salient allegations in the case:

Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G.F. over a 5-month period, and there are allegations in support of the conclusion that G. F.'s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G.F. ultimately pleaded guilty to criminal sexual misconduct. Moreover, the complaint alleges that there were multiple victims who were sufficiently disturbed by G.F.'s misconduct to seek an audience with the school principal. Further, petitioner contends that the harassment had a concrete, negative effect on her daughter's ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put an end to the harassment.

1. There has continually been tension and competition between OSI and SPI. The differences between the organizations have always come down to SPI (Software in the Public Interest) pretty much holding the moral high ground, and OSI (Open Source Initiative) focusing on the practical--specifically, efficient and focused marketing. As such, everyone pretty much trusted SPI, but looked to OSI as an organization that could reach out to others.

   This sort of thing happens in a lot of movements, and this sort of division really isn't anything to be ashamed of. For any movement you have to have people who are grounded in the underlying principles (alternate definition: stubborn and immovable) and loyal to the causes of the movement, and you have to have people who are interested in figuring out ways to grow the movement and market its causes and maybe, well, are not so grounded. Again, this is normal and natural and nothing to be shocked at.

   Even so, because OSI is the one to have based it's policies in the practical rather than the moral, I for one have always worried a bit about the long-term trustworthiness of the organization. This recent action shows that my worries and fears were not unfounded.

   OSI has been telling us all along that they own the mark, and that they are continuing work on registering it. A couple days ago a ZDNet article, of all things, alerted us to the fact that they have in fact not been doing so.

   Instead of protecting the "Open Source" certification mark, they've simply abandoned the registration without first telling anyone their plans.

   In other words, they've been stringing us along, having us believe they're working for one thing, and instead have had completely different plans. That's dishonest, and that's deceitful.

   OSI has proven itself to be deceitful.

   OSI is no longer to be trusted.

2. On the basis of cost, it doesn't make sense to abandon the registration. Even if they were worried that the registration of the mark wouldn't go through, that is still no excuse to utterly abandon it.

   It simply doesn't take much time to reply to a letter and answer some questions, and it doesn't cost very much either. In fact, the cost to write letters to the USPTO is *far less* than the cost to fly from city to city, talking with business leaders everywhere.

   Even if you're being told responding to USPTO queries is a waste of time (which I don't believe), paper simply isn't that expensive, and if the OSI directors can explain what Open Source means to businesses and the media (and I think they can be said to have been successful at that), why can't they explain themselves to the US Patent and Trademark Office?

   Bruce has already spent the $250 for the initial registration papers. They should have at least spent the money for stationary and postage to continue USPTO correspondence. It is an incredibly small investment to attempt to protect the mark that has been built up.

   However, if they had had problems paying for stationary, had they let us know, I'm sure we could have provided paper, toner, and free copies of emacs.

   OSI is cheap.

   OSI does not use funds wisely.

   OSI has proven itself to be fiscally irresponsible.

3. For the lack of a better term, (now that OSI considers this one invalid for some strange reason), the "Open Source movement" has invested enormous time and energy in furthering the purposes of the Open Source certification mark, and in helping building name recognition. For OSI to abandon the attempt at the registration of certification mark is a slap in the fact to all our efforts.

   OSI is traitorous.

4. The fact of the matter is, "Open Source" is exclusively recognized as an OSI/SPI created mark. Even if the term was considered merely descriptive and not distinctive, (and I don't believe that for one minute--it was both to me at least), how could it not have be considered to have distinctive status in the media within a month after the unveiling?

   IANAL, but I was able to easily dig up two cases:

   • Here is an appeal in which a trademark is found to be "merely descriptive" and not distinctive. (Unfortunately, slashdot mangles the URL. You can go to http://www.findlaw.com/casecode/courts/ , search for keyword 95-2238 in 8th Circuit Court Opinions, and it will be under First Bank vs. First Bank System.

   • And from the Supreme Court Decision &graph url=&court=US&case=/us/000/u10301.html">Qualitex Co. V. Jacobson Products Co.,

     In this circumstance, trademark law says that the word (e.g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982) ("secondary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

     (Unfortunately, slashdot mangles the url above. You can pull up the above info by going to http://www.findlaw.com/casecode/courts/ and search for keyword "Qualitex" in US Supreme Court opinions. Qualitex Co. vs. Jacobson Products Co. will be the first in the list.

   So if I can easily find case law to prove that a mark can at least become distinctive, and if I can find magazines everywhere using "Open Source" as a very specific term, (implying that the USPTO could also agree that it's become distinctive), how could a group that presumably actually spent money for legal help in this area conclude that they had "virtually no chance" at success? Are they not aware of all the publicity "Open Source" has been getting, almost always specifically pointing out the Open Source Definition where practical? (ie, print media, not 10-second sound bites.)

   I can only conclude that OSI didn't bother to research the issue in any depth, but decided it would be easier to give up instead.

   In legal and procedural matters, OSI is lazy. (They're fantastic for the marketing of Open Source though, and not at all lazy there.)

5. Applying for registration of a certification mark and then denying that it would ever have been possible for you to have gotten the mark in the first place is not a winning legal strategy.

   What if OSI later convinces themselves that they've made a legal mistake and they *can* register the certification mark after all?

   From their cut and dry statement, prematurely denying the possibility, I wonder if they've burned their bridges behind them. They may have a harder time trying to register it a second time.

   It's why people hire lawyers--To keep from making that sort of foolish statement and boxing yourself in. Either their lawyer didn't think of that, (and that's the biggest part of their job), or OSI ignored their legal advice.

   Either way, OSI is legally incompetent.

6. OSI's salt-the-earth strategy has also hurt SPI, because SPI also claims rights to the "Open Source" certification mark:

   From SPI's trademark page: "Open Source, Open Hardware, and Debian are Registered Certification Marks of Software in the Public Interest, Inc."

   Remember:

   1. SPI and OSI both say they own the mark.
   2. OSI ignores correspondence with USPTO, and the mark's registration lapses.
   3. OSI decides to register a different mark instead, something that would unquestionably be associated with them.
   4. When announcing the registration of this new mark, OSI then hurts SPI's chances of registering "Open Source" by claiming the non-fact that it can't be done.

   OSI is practicing community involvement by (perhaps unintentional) vandalism.

   OSI is destructive.

   (By the way, SPI is definitely not a "registered" mark, so SPI shouldn't claim otherwise.)

7. If OSI doesn't want the mark, they should instead have assigned any common law rights they might claim to it to SPI. I'm guessing they could have done this. I'm guessing they still can. I really don't know, but such an action would be the only scrap of moral dignity they could possibly recover from their actions so far. (If they do, SPI might want to create a separate organization to hold it and their other marks.)

   OSI can make amends.

1. There has continually been tension and competition between OSI and SPI. The differences between the organizations have always come down to SPI (Software in the Public Interest) pretty much holding the moral high ground, and OSI (Open Source Initiative) focusing on the practical--specifically, efficient and focused marketing. As such, everyone pretty much trusted SPI, but looked to OSI as an organization that could reach out to others.

   This sort of thing happens in a lot of movements, and this sort of division really isn't anything to be ashamed of. For any movement you have to have people who are grounded in the underlying principles (alternate definition: stubborn and immovable) and loyal to the causes of the movement, and you have to have people who are interested in figuring out ways to grow the movement and market its causes and maybe, well, are not so grounded. Again, this is normal and natural and nothing to be shocked at.

   Even so, because OSI is the one to have based it's policies in the practical rather than the moral, I for one have always worried a bit about the long-term trustworthiness of the organization. This recent action shows that my worries and fears were not unfounded.

   OSI has been telling us all along that they own the mark, and that they are continuing work on registering it. A couple days ago a ZDNet article, of all things, alerted us to the fact that they have in fact not been doing so.

   Instead of protecting the "Open Source" certification mark, they've simply abandoned the registration without first telling anyone their plans.

   In other words, they've been stringing us along, having us believe they're working for one thing, and instead have had completely different plans. That's dishonest, and that's deceitful.

   OSI has proven itself to be deceitful.

   OSI is no longer to be trusted.

2. On the basis of cost, it doesn't make sense to abandon the registration. Even if they were worried that the registration of the mark wouldn't go through, that is still no excuse to utterly abandon it.

   It simply doesn't take much time to reply to a letter and answer some questions, and it doesn't cost very much either. In fact, the cost to write letters to the USPTO is *far less* than the cost to fly from city to city, talking with business leaders everywhere.

   Even if you're being told responding to USPTO queries is a waste of time (which I don't believe), paper simply isn't that expensive, and if the OSI directors can explain what Open Source means to businesses and the media (and I think they can be said to have been successful at that), why can't they explain themselves to the US Patent and Trademark Office?

   Bruce has already spent the $250 for the initial registration papers. They should have at least spent the money for stationary and postage to continue USPTO correspondence. It is an incredibly small investment to attempt to protect the mark that has been built up.

   However, if they had had problems paying for stationary, had they let us know, I'm sure we could have provided paper, toner, and free copies of emacs.

   OSI is cheap.

   OSI does not use funds wisely.

   OSI has proven itself to be fiscally irresponsible.

3. For the lack of a better term, (now that OSI considers this one invalid for some strange reason), the "Open Source movement" has invested enormous time and energy in furthering the purposes of the Open Source certification mark, and in helping building name recognition. For OSI to abandon the attempt at the registration of certification mark is a slap in the fact to all our efforts.

   OSI is traitorous.

4. The fact of the matter is, "Open Source" is exclusively recognized as an OSI/SPI created mark. Even if the term was considered merely descriptive and not distinctive, (and I don't believe that for one minute--it was both to me at least), how could it not have be considered to have distinctive status in the media within a month after the unveiling?

   IANAL, but I was able to easily dig up two cases:

   • Here is an appeal in which a trademark is found to be "merely descriptive" and not distinctive. (Unfortunately, slashdot mangles the URL. You can go to http://www.findlaw.com/casecode/courts/ , search for keyword 95-2238 in 8th Circuit Court Opinions, and it will be under First Bank vs. First Bank System.

   • And from the Supreme Court Decision &graph url=&court=US&case=/us/000/u10301.html">Qualitex Co. V. Jacobson Products Co.,

     In this circumstance, trademark law says that the word (e.g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982) ("secondary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

     (Unfortunately, slashdot mangles the url above. You can pull up the above info by going to http://www.findlaw.com/casecode/courts/ and search for keyword "Qualitex" in US Supreme Court opinions. Qualitex Co. vs. Jacobson Products Co. will be the first in the list.

   So if I can easily find case law to prove that a mark can at least become distinctive, and if I can find magazines everywhere using "Open Source" as a very specific term, (implying that the USPTO could also agree that it's become distinctive), how could a group that presumably actually spent money for legal help in this area conclude that they had "virtually no chance" at success? Are they not aware of all the publicity "Open Source" has been getting, almost always specifically pointing out the Open Source Definition where practical? (ie, print media, not 10-second sound bites.)

   I can only conclude that OSI didn't bother to research the issue in any depth, but decided it would be easier to give up instead.

   In legal and procedural matters, OSI is lazy. (They're fantastic for the marketing of Open Source though, and not at all lazy there.)

5. Applying for registration of a certification mark and then denying that it would ever have been possible for you to have gotten the mark in the first place is not a winning legal strategy.

   What if OSI later convinces themselves that they've made a legal mistake and they *can* register the certification mark after all?

   From their cut and dry statement, prematurely denying the possibility, I wonder if they've burned their bridges behind them. They may have a harder time trying to register it a second time.

   It's why people hire lawyers--To keep from making that sort of foolish statement and boxing yourself in. Either their lawyer didn't think of that, (and that's the biggest part of their job), or OSI ignored their legal advice.

   Either way, OSI is legally incompetent.

6. OSI's salt-the-earth strategy has also hurt SPI, because SPI also claims rights to the "Open Source" certification mark:

   From SPI's trademark page: "Open Source, Open Hardware, and Debian are Registered Certification Marks of Software in the Public Interest, Inc."

   Remember:

   1. SPI and OSI both say they own the mark.
   2. OSI ignores correspondence with USPTO, and the mark's registration lapses.
   3. OSI decides to register a different mark instead, something that would unquestionably be associated with them.
   4. When announcing the registration of this new mark, OSI then hurts SPI's chances of registering "Open Source" by claiming the non-fact that it can't be done.

   OSI is practicing community involvement by (perhaps unintentional) vandalism.

   OSI is destructive.

   (By the way, SPI is definitely not a "registered" mark, so SPI shouldn't claim otherwise.)

7. If OSI doesn't want the mark, they should instead have assigned any common law rights they might claim to it to SPI. I'm guessing they could have done this. I'm guessing they still can. I really don't know, but such an action would be the only scrap of moral dignity they could possibly recover from their actions so far. (If they do, SPI might want to create a separate organization to hold it and their other marks.)

   OSI can make amends.

1. There has continually been tension and competition between OSI and SPI. The differences between the organizations have always come down to SPI (Software in the Public Interest) pretty much holding the moral high ground, and OSI (Open Source Initiative) focusing on the practical--specifically, efficient and focused marketing. As such, everyone pretty much trusted SPI, but looked to OSI as an organization that could reach out to others.

   This sort of thing happens in a lot of movements, and this sort of division really isn't anything to be ashamed of. For any movement you have to have people who are grounded in the underlying principles (alternate definition: stubborn and immovable) and loyal to the causes of the movement, and you have to have people who are interested in figuring out ways to grow the movement and market its causes and maybe, well, are not so grounded. Again, this is normal and natural and nothing to be shocked at.

   Even so, because OSI is the one to have based it's policies in the practical rather than the moral, I for one have always worried a bit about the long-term trustworthiness of the organization. This recent action shows that my worries and fears were not unfounded.

   OSI has been telling us all along that they own the mark, and that they are continuing work on registering it. A couple days ago a ZDNet article, of all things, alerted us to the fact that they have in fact not been doing so.

   Instead of protecting the "Open Source" certification mark, they've simply abandoned the registration without first telling anyone their plans.

   In other words, they've been stringing us along, having us believe they're working for one thing, and instead have had completely different plans. That's dishonest, and that's deceitful.

   OSI has proven itself to be deceitful.

   OSI is no longer to be trusted.

2. On the basis of cost, it doesn't make sense to abandon the registration. Even if they were worried that the registration of the mark wouldn't go through, that is still no excuse to utterly abandon it.

   It simply doesn't take much time to reply to a letter and answer some questions, and it doesn't cost very much either. In fact, the cost to write letters to the USPTO is *far less* than the cost to fly from city to city, talking with business leaders everywhere.

   Even if you're being told responding to USPTO queries is a waste of time (which I don't believe), paper simply isn't that expensive, and if the OSI directors can explain what Open Source means to businesses and the media (and I think they can be said to have been successful at that), why can't they explain themselves to the US Patent and Trademark Office?

   Bruce has already spent the $250 for the initial registration papers. They should have at least spent the money for stationary and postage to continue USPTO correspondence. It is an incredibly small investment to attempt to protect the mark that has been built up.

   However, if they had had problems paying for stationary, had they let us know, I'm sure we could have provided paper, toner, and free copies of emacs.

   OSI is cheap.

   OSI does not use funds wisely.

   OSI has proven itself to be fiscally irresponsible.

3. For the lack of a better term, (now that OSI considers this one invalid for some strange reason), the "Open Source movement" has invested enormous time and energy in furthering the purposes of the Open Source certification mark, and in helping building name recognition. For OSI to abandon the attempt at the registration of certification mark is a slap in the fact to all our efforts.

   OSI is traitorous.

4. The fact of the matter is, "Open Source" is exclusively recognized as an OSI/SPI created mark. Even if the term was considered merely descriptive and not distinctive, (and I don't believe that for one minute--it was both to me at least), how could it not have be considered to have distinctive status in the media within a month after the unveiling?

   IANAL, but I was able to easily dig up two cases:

   • Here is an appeal in which a trademark is found to be "merely descriptive" and not distinctive. (Unfortunately, slashdot mangles the URL. You can go to http://www.findlaw.com/casecode/courts/ , search for keyword 95-2238 in 8th Circuit Court Opinions, and it will be under First Bank vs. First Bank System.

   • And from the Supreme Court Decision &graph url=&court=US&case=/us/000/u10301.html">Qualitex Co. V. Jacobson Products Co.,

     In this circumstance, trademark law says that the word (e.g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982) ("secondary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

     (Unfortunately, slashdot mangles the url above. You can pull up the above info by going to http://www.findlaw.com/casecode/courts/ and search for keyword "Qualitex" in US Supreme Court opinions. Qualitex Co. vs. Jacobson Products Co. will be the first in the list.

   So if I can easily find case law to prove that a mark can at least become distinctive, and if I can find magazines everywhere using "Open Source" as a very specific term, (implying that the USPTO could also agree that it's become distinctive), how could a group that presumably actually spent money for legal help in this area conclude that they had "virtually no chance" at success? Are they not aware of all the publicity "Open Source" has been getting, almost always specifically pointing out the Open Source Definition where practical? (ie, print media, not 10-second sound bites.)

   I can only conclude that OSI didn't bother to research the issue in any depth, but decided it would be easier to give up instead.

   In legal and procedural matters, OSI is lazy. (They're fantastic for the marketing of Open Source though, and not at all lazy there.)

5. Applying for registration of a certification mark and then denying that it would ever have been possible for you to have gotten the mark in the first place is not a winning legal strategy.

   What if OSI later convinces themselves that they've made a legal mistake and they *can* register the certification mark after all?

   From their cut and dry statement, prematurely denying the possibility, I wonder if they've burned their bridges behind them. They may have a harder time trying to register it a second time.

   It's why people hire lawyers--To keep from making that sort of foolish statement and boxing yourself in. Either their lawyer didn't think of that, (and that's the biggest part of their job), or OSI ignored their legal advice.

   Either way, OSI is legally incompetent.

6. OSI's salt-the-earth strategy has also hurt SPI, because SPI also claims rights to the "Open Source" certification mark:

   From SPI's trademark page: "Open Source, Open Hardware, and Debian are Registered Certification Marks of Software in the Public Interest, Inc."

   Remember:

   1. SPI and OSI both say they own the mark.
   2. OSI ignores correspondence with USPTO, and the mark's registration lapses.
   3. OSI decides to register a different mark instead, something that would unquestionably be associated with them.
   4. When announcing the registration of this new mark, OSI then hurts SPI's chances of registering "Open Source" by claiming the non-fact that it can't be done.

   OSI is practicing community involvement by (perhaps unintentional) vandalism.

   OSI is destructive.

   (By the way, SPI is definitely not a "registered" mark, so SPI shouldn't claim otherwise.)

7. If OSI doesn't want the mark, they should instead have assigned any common law rights they might claim to it to SPI. I'm guessing they could have done this. I'm guessing they still can. I really don't know, but such an action would be the only scrap of moral dignity they could possibly recover from their actions so far. (If they do, SPI might want to create a separate organization to hold it and their other marks.)

   OSI can make amends.

1. There has continually been tension and competition between OSI and SPI. The differences between the organizations have always come down to SPI (Software in the Public Interest) pretty much holding the moral high ground, and OSI (Open Source Initiative) focusing on the practical--specifically, efficient and focused marketing. As such, everyone pretty much trusted SPI, but looked to OSI as an organization that could reach out to others.

   This sort of thing happens in a lot of movements, and this sort of division really isn't anything to be ashamed of. For any movement you have to have people who are grounded in the underlying principles (alternate definition: stubborn and immovable) and loyal to the causes of the movement, and you have to have people who are interested in figuring out ways to grow the movement and market its causes and maybe, well, are not so grounded. Again, this is normal and natural and nothing to be shocked at.

   Even so, because OSI is the one to have based it's policies in the practical rather than the moral, I for one have always worried a bit about the long-term trustworthiness of the organization. This recent action shows that my worries and fears were not unfounded.

   OSI has been telling us all along that they own the mark, and that they are continuing work on registering it. A couple days ago a ZDNet article, of all things, alerted us to the fact that they have in fact not been doing so.

   Instead of protecting the "Open Source" certification mark, they've simply abandoned the registration without first telling anyone their plans.

   In other words, they've been stringing us along, having us believe they're working for one thing, and instead have had completely different plans. That's dishonest, and that's deceitful.

   OSI has proven itself to be deceitful.

   OSI is no longer to be trusted.

2. On the basis of cost, it doesn't make sense to abandon the registration. Even if they were worried that the registration of the mark wouldn't go through, that is still no excuse to utterly abandon it.

   It simply doesn't take much time to reply to a letter and answer some questions, and it doesn't cost very much either. In fact, the cost to write letters to the USPTO is *far less* than the cost to fly from city to city, talking with business leaders everywhere.

   Even if you're being told responding to USPTO queries is a waste of time (which I don't believe), paper simply isn't that expensive, and if the OSI directors can explain what Open Source means to businesses and the media (and I think they can be said to have been successful at that), why can't they explain themselves to the US Patent and Trademark Office?

   Bruce has already spent the $250 for the initial registration papers. They should have at least spent the money for stationary and postage to continue USPTO correspondence. It is an incredibly small investment to attempt to protect the mark that has been built up.

   However, if they had had problems paying for stationary, had they let us know, I'm sure we could have provided paper, toner, and free copies of emacs.

   OSI is cheap.

   OSI does not use funds wisely.

   OSI has proven itself to be fiscally irresponsible.

3. For the lack of a better term, (now that OSI considers this one invalid for some strange reason), the "Open Source movement" has invested enormous time and energy in furthering the purposes of the Open Source certification mark, and in helping building name recognition. For OSI to abandon the attempt at the registration of certification mark is a slap in the fact to all our efforts.

   OSI is traitorous.

4. The fact of the matter is, "Open Source" is exclusively recognized as an OSI/SPI created mark. Even if the term was considered merely descriptive and not distinctive, (and I don't believe that for one minute--it was both to me at least), how could it not have be considered to have distinctive status in the media within a month after the unveiling?

   IANAL, but I was able to easily dig up two cases:

   • Here is an appeal in which a trademark is found to be "merely descriptive" and not distinctive. (Unfortunately, slashdot mangles the URL. You can go to http://www.findlaw.com/casecode/courts/ , search for keyword 95-2238 in 8th Circuit Court Opinions, and it will be under First Bank vs. First Bank System.

   • And from the Supreme Court Decision &graph url=&court=US&case=/us/000/u10301.html">Qualitex Co. V. Jacobson Products Co.,

     In this circumstance, trademark law says that the word (e.g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982) ("secondary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

     (Unfortunately, slashdot mangles the url above. You can pull up the above info by going to http://www.findlaw.com/casecode/courts/ and search for keyword "Qualitex" in US Supreme Court opinions. Qualitex Co. vs. Jacobson Products Co. will be the first in the list.

   So if I can easily find case law to prove that a mark can at least become distinctive, and if I can find magazines everywhere using "Open Source" as a very specific term, (implying that the USPTO could also agree that it's become distinctive), how could a group that presumably actually spent money for legal help in this area conclude that they had "virtually no chance" at success? Are they not aware of all the publicity "Open Source" has been getting, almost always specifically pointing out the Open Source Definition where practical? (ie, print media, not 10-second sound bites.)

   I can only conclude that OSI didn't bother to research the issue in any depth, but decided it would be easier to give up instead.

   In legal and procedural matters, OSI is lazy. (They're fantastic for the marketing of Open Source though, and not at all lazy there.)

5. Applying for registration of a certification mark and then denying that it would ever have been possible for you to have gotten the mark in the first place is not a winning legal strategy.

   What if OSI later convinces themselves that they've made a legal mistake and they *can* register the certification mark after all?

   From their cut and dry statement, prematurely denying the possibility, I wonder if they've burned their bridges behind them. They may have a harder time trying to register it a second time.

   It's why people hire lawyers--To keep from making that sort of foolish statement and boxing yourself in. Either their lawyer didn't think of that, (and that's the biggest part of their job), or OSI ignored their legal advice.

   Either way, OSI is legally incompetent.

6. OSI's salt-the-earth strategy has also hurt SPI, because SPI also claims rights to the "Open Source" certification mark:

   From SPI's trademark page: "Open Source, Open Hardware, and Debian are Registered Certification Marks of Software in the Public Interest, Inc."

   Remember:

   1. SPI and OSI both say they own the mark.
   2. OSI ignores correspondence with USPTO, and the mark's registration lapses.
   3. OSI decides to register a different mark instead, something that would unquestionably be associated with them.
   4. When announcing the registration of this new mark, OSI then hurts SPI's chances of registering "Open Source" by claiming the non-fact that it can't be done.

   OSI is practicing community involvement by (perhaps unintentional) vandalism.

   OSI is destructive.

   (By the way, SPI is definitely not a "registered" mark, so SPI shouldn't claim otherwise.)

7. If OSI doesn't want the mark, they should instead have assigned any common law rights they might claim to it to SPI. I'm guessing they could have done this. I'm guessing they still can. I really don't know, but such an action would be the only scrap of moral dignity they could possibly recover from their actions so far. (If they do, SPI might want to create a separate organization to hold it and their other marks.)

   OSI can make amends.

Here's what I think is the core of the decision:

Even though it cannot directly reproduce a digital music recording, the Rio would nevertheless be a digital audio recording device if it could reproduce a digital music recording "from a transmission." 17 U.S.C. 1001(1). [...] The Senate Report [on the Audio Home Recording Act of 1992] provides a radio broadcast as an example of a transmission. [...] The parties [dispute] whether indirect reproduction of a transmission of a digital music recording is covered by the Act. RIAA asserts that indirect reproduction of a transmission is sufficient for the Rio to fall within the Act's ambit as a digital audio recording device.

[...] [T]he Rio can indirectly reproduce a transmission. For example, if a radio broadcast of a digital audio recording were recorded on a [DAT] and then uploaded to a computer hard drive, the Rio could indirectly reproduce the transmission by downloading a copy from the hard drive. Thus, if indirect reproduction of a transmission falls within the statutory definition, the Rio would be a digital audio recording device.

RIAA's interpretation of the statutory language initially seems plausible, but closer analysis reveals that it is contrary to the statutory language and common sense. [...] RIAA's interpretation of the Act's language ... would only cover the indirect recording of transmissions, and would omit restrictions on the direct recording of transmissions (e.g., recording songs from the radio) from the Act's ambit. [...] It makes little sense for the Act to restrict the indirect recording of transmissions, but to allow unrestricted direct recording of transmissions (e.g., to regulate second-hand recording of songs from the radio, but to allow unlimited direct recording of songs from the radio).

Here's an interesting footnote:

RIAA ... predicts that losses to digital Internet piracy will soon surpass the $300 million that is allegedly lost annually to other more traditional forms of piracy.(1)

(1) Whether or not piracy causes such financial harm is a subject of dispute. Critics of the industry's piracy loss figures have noted that a willingness to download illicit files for free does not necessarily correlate to lost sales, for the simple reason that persons willing to accept an item for free often will not purchase the same item, even if no longer freely available. Critics further note that the price of commercially available recordings already reflects the existence of copying and the benefits and harms such copying causes; thus, they contend, the current price of recordings offsets, at least in part, the losses incurred by the industry from home taping and piracy. [Citations omitted.]

Generally a pretty clueful opinion, IMHO.

In the McIntyre case, the court protected the right of a woman to distribute anonymous handbills expressing her opposition to a referendum. In the Talley case, the courts protected the rights of a protestor to distribute anonymous leaflets alleging employment discrimination. Both distribution attempts violated local ordinances banning anonymous communication.

In Talley the court stated that "Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."

The court has recognized in McIntyre a general right to anonymous speech, finding that "[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. "

In both of these decisions, the court noted that the highest protections should be given to political speech.

As I recall, Cmdr Taco has assurred us that slashdot doesn't store records of Anonymous Cowards. Whether he would be required to turn over the identities corresponding to named accounts is an open question.

To the dismay of some, the best prophylactic against subpoenas may be to increase the level of political discussion on slashdot. Since accounts could be used to post protected anonymous opinions, it might well infringe on protected free speech rights to reveal the actual owner...

Here are some relevant excerpts from Feist v. Rural Tel.:


Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable.



While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way.


Do read the case; it's very interesting material. ("Rural" is a telephone company; "Feist" is a publisher of wide-area phone books which used data from Rural's white pages in making a wide-area white pages directory including material from ten other phone companies.)

In 1991, the Supreme Court decided that the factual content of phone directories are NOT copyrightable. (see Feist Publications, 499 US 340)

There is little difference between a phone book entry and a whois entry; they may be able to copyright the FORM of the database, but the INFORMATION is useable by all.

In responding to a FOIA request submitted by Corsearch in 1996 requesting a copy of the domain name database (NSF FOIA No. 96-090 Request), the NSF claimed (NSF FOIA No. 96-090 Response):

"NSF does not possess or control the domain name database ..."

An administrative appeal of this decision was made (NSF FOIA No. 96-090 Appeal). This appeal was rejected. The words "possess" and "control" are being used here in the context of the Freedom of Information Act to determine if the database is an "agency record", and not in respect of claims to ownership of intellectual property. These are the same terms used in the FLITE case (Baizer v. Department of the Air Force, 887 F. Supp. 225 (N.D. Cal. 1995). The FLITE decision has been criticized for its "broad assertion of an exemption from FOIA for 'library' materials, and its questionable use of legal precedent" ( Supreme Court Decisions in FLITE database, Information Policy Notes, Taxpayers Assets Project). The Flite decision draws upon the Supreme Court decision in Department of Justice v. Tax Analysts, 492 US 136 (1989).

So, the NSF has the right to obtain a copy of the database from Network Solutions, but because the NSF has not chosen to obtain the database, it is not possible to obtain the database from the NSF under the FOIA. And even if the NSF did have a copy of the database, it is not clear, in the light of the FLITE decision, whether the NSF would be required to make the database available under the FOIA.

The resources are out there to learn the difference. It would make your arguments more persuasive if you would at least argue about the right legal rules governing the issues at hand.

In particular, see:

Findlaw's Trademark Page

Nolo Press's Trademark Page

Fortunately, there are many attorneys who know a lot about the subject who feel as pissed about trademark abuse and are actually doing something about it. Lets all hope they are successful -- the Slashdot community should help where possible!