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I don't know anything about the $20 figure the parent describes above. However, it appears to be a mechanism used by the RIAA to determine when it is going to exercise its discretion to bring a claim. It may be a fairly idiotic mechanism based on foolish notions of the value of its songs. If the figure is merely a means for determining whether or not to bring a claim, it will have little if any impact on the damages awarded by a court.

Check out this article for a decent discussion on statutory damages:

Statutory damages article

This guy doesn't completely answer the indemnity problems that arise from the SCO lawsuit. Yes, it doesn't look like users are going to be in trouble from SCO, even if SCO wins this thing. But that doesn't totally answer the question.

If you're a big company, say Citibank, and you're considering whether or not to use Linux, or ANY open source or free software for that matter, (including sendmail, bind, etc), you have to consider what the risk is that someone has slipped code into the software that is under intellectual property restrictions. Take, for example, a patent. Suppose someone puts a challenge response antispam system into sendmail. Right or wrong, mailblocks claims to own the patent on that type of system. Mailblocks is not a party to the agreement between sendmail.org and Citibank, and they see that Citibank is infringing on their patent without a license. Mailblocks can sue Citibank for patent infringement, and Citibank doesn't have anyone to go to in order to complain because there is no indemnification provided by the license to use sendmail.

The indemnification problem is NOT specific to the SCO case. But looking at the case points out that there is a general problem. It means that anyone who uses free/open-source software has to consider the additional risk of potentially getting sued into oblivion by some unknown 3rd party with a patent portfolio.

And before you think I'm making this up, read this.

I don't have an answer for this, short getting rid of software patents. Some please tell me there's another way to see this.

To quote GNU's website:

Copyleft and the GNU GPL
The goal of GNU was to give users freedom, not just to be popular. So we needed to use distribution terms that would prevent GNU software from being turned into proprietary software. The method we use is called "copyleft".(1)

Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose: instead of a means of privatizing software, it becomes a means of keeping software free.

The central idea of copyleft is that we give everyone permission to run the program, copy the program, modify the program, and distribute modified versions--but not permission to add restrictions of their own. Thus, the crucial freedoms that define "free software" are guaranteed to everyone who has a copy; they become inalienable rights.

Some links I found usefull:
A Software Copyright Primer
US Copyright Office Website

It wasn't some guy suddenly deciding to patent software.

Yeah, it was.

First of all note that Diamond v. Diehr was a 5 to 4 decision with strongly dissenting opinion. I could give links explaining why Diamond v. Diehr was in error, but lets ignore the dissent and assume the decision was entirely correct.

The question before the court was "Can one patent a machine that transforms materials physically under the control of a programmed computer?"

The court ruled that: "When a claim containing a mathematical formula implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies 101's requirements."

They further state "Transformation and reduction of an article `to a different state or thing' is the clue to the patentability of a process claim".

The court quoted another case and affirmed that "a mathematical algorithm must be assumed to be within the "prior art", though they did not agree with the way Diamond tried to apply it. All software is in fact nothing more than a mathematical algorithm.

Therefore Diamond v. Diehr upheld that ALL POSSIBLE SOFTWARE AUTOMATICALLY FALLS INTO PRIOR ART.

The head of the patent office latched onto a few specific comments in this decision and ignored the rest of what the court said. He directly violated their specific warning that "insignificant postsolution activity will not transform an unpatentable principle into a patentable process. Ibid. 14 To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."

The entire patent granting process was overhauled in in exactly the manner the court warned against. Now a patent can be granted on a wordprocessor.

Most quotes came from here, and some from here.

-

For example, if someone prior to the current end user made changes to the OSS code that infringe on a third party's patent, the patent holder could assert claims against the end user, even though the end user had no knowledge of the patent infringement... While the legal import of the Novell assertions and the SCO response to those allegations is unclear as of this writing given that SCO curiously did not allege copyright infringement in its lawsuit, it is clear that the story is not yet over and that there are many very interested parties who are more than willing to publicly wrangle in this high-stakes battle.

Even tech literate Aussies don't seem to know this, but we already adopted our own DMCA-alike.

See here for details.

> Copyright infringement is not theft by any reasonable definition of the
> word theft.

I disagree. One can define theft as taking an item that one is not legally
entitled to. I think that is a reasonable definition of theft, and
copyright infringement typically meets this defintion. The most common
argument against calling copyright "theft" is that nothing is taken from the
owner. Of course, that is also not true. The owner's IP is taken without
their permission. Another argument is that the owner is not prevented from
using the IP. Again, that is not totally true. Infringement typically
reduces the value of the owner's IP (because unauthorized copies dilute the
marketplace), and thus the owner has lost something. Often, anauthorized
uses are inferior in quality, hurting the owners reputation. The fact that
the owner has an infinite supply of the IP is not relevant to the issue,
IMHO.

That is your opinion. Unfortunately for you, many people, including the U.S. Court of Appeals for the Federal Circuit, disagree.

Business methods are *not* patentable.

Are you sure about that?

There is a difference between parody and a derivative work. Check out this article for a little more info.

Will anyone in the federal government be able to say code is a form of speech any time soon?

Umm... well actually, they already have.

For more on precedent, here's a cut from an article on Gigalaw:

A more current example, of exactly the same kind of conduct and speech, occurred during the impeachment hearings against President Clinton. Alec Baldwin, appearing on the David Letterman show, made an impassioned harangue against the House committee conducting the hearings and Chairman Hyde in particular. Baldwin's outburst called for the audience to "go down to Washington and kill Henry Hyde and the whole damn committee! Kill 'em all." Without asking a particular person to perform the killings, or stating that he would specifically go do it himself, this invective becomes unbelievable and, for that reason, is protected speech. In this situation as with the Watts case there is not the kind of immediacy that the finding of a "true threat" seems to require.

The American Civil Liberties Union (ACLU) filed a friend of the court brief in support of the First Amendment rights of the ACLA. In the brief, the ACLU argued that the established Ninth Circuit test for a threat was whether "that threat was intended to directly threaten a person." This standard is more difficult to prove than the one applied by the trial judge. In addition the ACLU argued that the Second Circuit Court of Appeals, which hears cases in New York, Vermont and Connecticut, has adopted a stricter standard, which the ACLU believes is more appropriate to the Nuremberg Files case. The Second Circuit standard is that speech is outside the bounds of the First Amendment if the threat is in words that are "unequivocal, unconditional, immediate, and specific" and that express a "gravity of purpose and imminent prospect" of violence.

The second court(NY, VT, CT), like the fourth, doesn't apply to this case.

Copyright violation in Australia is a civil offence in Australia, unless you sell the stuff. Search for the word "civil" here.

I know this with a fair amount of certainty, as I was on the end of a similar search warrant during the "drink or die" bust. At the time I was totally mystified as to why, after telling me they were going to search my work place for "copyright violations" and having a search warrant that said they could look for anything illegal under Australia law, they took absolutely no interest in the various CD collections we have, nor did they search any of the workstations for illegal software.

It turned out the target was a guy who used to work here and who did (briefly) have an IRC chat with drink or die after it had been infiltrated. That was how they got our IP. The cops were interested in IRC logs mainly, but I had cleaned up the servers ages ago. His house was later searched and the fed's did find his collection of 200 odd pirated movies. But it was just a hobby - he did not sell anything. I am presuming that is why he has not been charged.

It is a weird hobby if you ask me. It costs more here in Australia to download & burn a movie then it does to hire it, a lot more in fact.

Anyway, there has to be more to this than was reported in the article. For the police to be involved someone must be suspected of selling, or somehow otherwise getting monetary gain out of illegally distributing copyrighted material. Australia's copyright laws may sound lame from what I have said, but if someone is found to of broken the criminal law it won't be a slap on the wrist. They will end up in jail.

Commercial speech is not protected by the First Amendment.

Bull Shit

Last spring, Mr. Spitzer sued Network Associates, which has its headquarters in Santa Clara, Calif., asserting that the company's software included an unenforceable clause that effectively violated consumers' free speech. The clause, which appeared on software products and the company's Web site, read: "The customer will not publish reviews of this product without prior consent from Network Associates Inc."

http://www.canarsiecourier.com/News/2002/0221/Othe rNews/018.html
Spitzer's suit also alleges that the clauses infringe upon consumers' and the media's freedom of speech and fair use rights under copyright law. It contends that by informing software users that the speech restrictions are justified under existing "rules and regulations" - even though no such rules or regulations really exist -- the company also committed an unlawful deceptive practice.

What New York Law Says

But are these clauses really illegal under New York State law? And does the attorney general have the right to bring a civil action for money damages and an injunction because of it? Here's where close attention to the laws is vital.

Pertinent provisions of the laws of the State of New York give the state's attorney general broad powers to bring suit for what it perceives to be illegal or fraudulent business practices.

For example, Section 63(12) of New York's Executive Law specifically allows the attorney general to bring suit regarding cases of "persistent fraud or illegality in the carrying on, conducting or transaction of business". The statute says, "[t]he term 'persistent fraud' or 'illegality'... shall include continuance or carrying on of any fraudulent or illegal act or conduct ". In fact, under the section, the term "fraud" includes "any... deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual clauses" and does not necessarily require wrongful intent.

In the Network Associatescase, the claimed fraudulent conduct is that the Censorship Clause refers to allegedly non-existent rules and regulations. Even more so because the actual license agreement inside the box mentions nothing about this clause and otherwise makes clear that the four corners of the license agreement represent the entire agreement with the purchaser. Such conduct is claimed to be "illegal" because it is an "unenforceable covenant, invalid as against public policy," according to the complaint.

In other words, according to the New York attorney general, Network Associates' warning was fraudulent not only because it wrongly referred to non-existent rules and regulations, but also because the plain terms of the license agreement would have excluded such a clause, found only on the box, label or download page of the software, from even being enforceable and because the restriction violated public policy by creating a "chilling effect" on legally permitted speech that would be beneficial to the consumer.

Interestingly, under cited case law interpreting this statutory section, proof that Network Associates actually intended to defraud or mislead isn't necessary. Yet, according to the attorney general, Network Associates has shown this intent anyway.

In its legal memorandum, the attorney general said that Network Associates tried to use the Censorship Clause to kill an unfavorable review of its "Gauntlet" firewall softwareby Network World magazine, allegedly invoking the clause to threaten the magazine with legal action if the review was not taken down from the magazine's web site and otherwise retracted.

Under the terms of this New York State law provision, when the attorney general finds such conduct, it has the right to seek broad relief, including financial damages and injunctions to stop the practice from continuing.

Similarly, Section 349 of New York's General Business Law makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this State" and allows the attorney general to file suit for an injunction and for restitution, that is, the return of money wrongfully given.

As set forth in the attorney general's memorandum, the disputed Network Associates clauses "unfairly chill the consumer's enthusiasm to enforce" their rights.

What is particularly alarming about this statute, from the point of view of a defendant like Network Associates, is that it also authorizes a private right of action, allowing any individual harmed by the practice to sue for as much as $1,000 and recovery of counsel fees based upon deceptive practices prohibited by the law. So, if New York state were to be successful on this claim, a multitude of individual suits might be in the offing, perhaps even a class action.

This came up for me once. Sometimes people just can't take a good yo' mamma joke.

When Stan Morris speaks, people listen.

Parody and Satire

Parody or satire is difficult to deal with, but if applied to a public figure is clearly protected by the First Amendment because the exaggeration or distortions of the truth are not intended to be taken as fact.

The case of Hustler Magazine, Inc. v. Fallwell is an example. In that case, Hustler Magazine printed a fake advertisement that parodied a Campari Liquer advertising campaign. In the Hustler publication, the advertisement contained a make-believe interview with Jerry Falwell, founder of the Moral Majority and a television evangelist, in which he talked about his "first time" to experience sexual intercourse. The vulgar "recounting" of Falwell's "first sexual encounter" was set in an outhouse with him having sex with his mother. Falwell, a teetotaler, was also portrayed as being drunk.

Falwell was outraged by this caricature, so outraged, in fact, that he sued. His lawsuit for libel, invasion of privacy and intentional infliction of emotional distress went to trial. At the close of the evidence, the district court said that even if everything Falwell claimed were true there were no legal grounds upon which he could claim relief. The balance of the case was submitted to the jury, which returned a verdict for Falwell for intentional infliction of emotional distress, although the jury disallowed the libel claim.

On appeal, the Supreme Court heard the case on the First Amendment question of whether a state has authority to protect its citizens from the intentional infliction of emotional distress and whether a public figure may recover damages for his or her distress.

Specifically, the Chief Justice said the issue was whether a state may protect its citizens from patently offensive speech, and he said the First Amendment provided a safe haven for even that mode of speech. The Chief Justice reasoned that even though Falwell was not a public figure who held elective office, he was a public figure who had influence on public affairs and, as such, only had limited capacity to be distressed. The Chief Justice wrote that: "robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those that hold public office or those public figures who are 'intimately involved in the resolution of important public questions or by reason of their fame, shape events in area of concern to society at large.'"

The Chief Justice ruled that even so outrageous a rogue, or impish rascal, depending on your point of view, as Larry Flynt is entitled to exercise his First Amendment freedoms in a manner best determined by Flynt, rather than being restricted by any state action.
--By Stan Morris from Gigalaw.com

But there are limits it would seem. The creators of Parkwars originally planned to completely parody The Phantom Menace, but thought better of it, at least in part to make sure lawyers didn't come a knocking.

Mr. Morris seems to make a convincing case clearing the way to do what you will with your modest proposal. But the real snag might be copyright.

Most importantly there is of course the EFF. Also check out Yale's Lawmeme, Harvard's Grep Law, and Gigalaw.

I'm posting AC since I don't want to come over as a karma whore.

Microsoft applied for a trademark on Windows, but in the Lindows case Judge Coughenour ruled that it was invalid:

"Lindows.com has presented sufficient evidence to rebut the presumption of validity of the Windows mark," Coughenour wrote. "It is necessary to emphasize that, at this nascent stage in the litigation, the court's determination that there are serious questions regarding whether Windows is a non-generic name and thus eligible for the protections of federal trademark law is not a conclusive finding that the trademark is invalid."

source.

Another informative summary of the same ruling on MS's preliminary injunction.

Yet another report, or, uh, bricolage, whatever.

Not being allowed to reproduce the work in an archive doesn't limit speech about the work in any meaningful way

Oh, I disagree. It is critically important. For example, it would be impossible to do a parody without reproducing some, not necessarily all, of the work. But statutory fair use apparently makes it unnecessary to reach free speech Q's. As I mention below, I think it's nonetheless important to be mindful of the influence of free speech doctrine.

Value of the work -- what damages could the spammer seriously claim? This judgment affects the decision whether to take the threat seriously, whether to roll the dice telling them to go to hell, etc. Strategic stuff.

Doctrinal relationship of 1st A. and fair use -- I supposed that they were interrelated, and others have argued the same. Fair use is not in the Copyright Clause, it was read into it, originally by the judiciary. Congress later wrote it into the statute. I think fair use is clearly informed by 1st A. values, but of course the two are not interchangeable.

Here's more and more (note ditto.com cite). I haven't vetted these docs; use at your own risk (as if my approval would guarantee anything!). This area of law, with regard to the Internet, is not fully formed. I'm reminded of the deep-linking Q, too.

However, this is all far too abstract. A trial judge is going to want cites to statutes and precedent, not dreamy academic stuff. It's just useful to consider the underlying values to keep your arguments focused. Now that I've belatedly read the actual "C&D letter" I realize the writer is full of crap -- good enough for a dismissal IMHO. :)

So the limited use of a work for purposes of criticism is, as I said, expressly permitted by law.


I find it inconceivable that you persist in claiming that the law you just quoted "expressly permits" criticism, so I suppose you are just fooling around after all.

However, for the benefit of others, it should be stated that what the law expressly permits is "fair use" and it includes examples of what might be considered fair use, such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use)..."

However, as Barbara Weil Gall" points out, "If all teaching use were fair use, there would be no need for students to purchase textbooks." In other words, just because something is teaching, or criticism, or whatever, doesn't make it "fair use" and doesn't, contrary to Twirlip's assertions, make it expressly permissible. Actually, no specific instantiation of fair use is "expressly permitted," but each possible infringement must be weighed against the totality of mitigating circumstances mentioned within.

So, we should be expecting those old DIVX disks to unlock after their copyright expires, too?

WTF does that have to do with Intertrust? I think you're confused.

It has to do with your blanket assertion that Intertrust technology is obliged to allow its encrypted work to return to the public domain when we have already seen in the recent past other technology which fails to do so. I don't recall any suits being brought for this reason against Digital Video Espress, LP back when it still existed, and tellingly, now that it does exist, who do I sue when my copy of "Flashdance, the Exclusive DIVX edition" falls out of copyright? But I suppose we ought to believe that this time it will be different, based upon the unsupported opinions of a self-described non-employee of Intertrust who has no vested interest in seeing the technology succeed or fail. Wink, wink.

If you have new questions, I'll be happy to respond to them

No, I agree that this has gone on quite long enough.

Also for folks using Windows IE (the majority) ATT&T offers up their free eternally-beta AT&T Privacy Bird which gives folks visual and auditory feedback (both controlled/turned off in Prefs) on site's P3P settings. Quite informative actually, I discovered just how awful Yahoo's policies are when I used their headline aggregator (just who are they selling my newsreading habits to?) [rhetorical question]

The P3P folks have put together a great website at P3P Public Overview which is chock-full of useful information. On the other hand here is an interesting critique and here another, suprisingly both by lawyers. Security guru Richard Smith also has an important (though hopefully now fixed?) page on supercookies and how MS IE 6's touted protections can be got around.

Mozilla of course supports P3P and it's useful to understand just how MS IE 6 suppports and applies P3P and cookies.

Does Australia have a DMCA?

Australia does have a somewhat similar anti-circumvention law.

Unlike the DMCA and the EUCD, the Australian Digtal Agenda Act does not cover acts of circumvention, it only covers circumvention devices.

See this Gigalaw article for the short version of the story.

No Roadside Signs -- I will not litter our highways with annoying signs. This campaign is not about name recognition; it is about issues, integrity and restoring trust in our government.

Ticketmaster Corp., et al. v. Tickets.Com, Inc. also reported on /. slashdot

Their "linking policy" will have absolutely no affect.

1. It's a matter of free speech.
2. Linking has been shown to be legal in the courts (the article linked to includes more issues than just linking - you want the 7th paragraph.)
3. Last but not least, it's completely anti-net, and braindead.

the federal law was deemed to be against the First Amendment found a link here about the Supreme Court ruling.

The public domain has several issues.

• It means the content is not copyrighted. Either the copyright has expired, or was released.
• Lack of copyright is not equivelant to a lack of liability.
• There are implied warranties and liabilities for particular uses when other areas of law are applied. Liability and warranties are not limited to copyright.
• Any change, even minor, creates a 'derivative work' of the PD work, allowing anyone to usurp the work you have done.
• The user of PD content must be able to PROVE that the content is available as public domain.

Decoders for various image, movie, and disc formats have been released into the public domain, yet the authors have been sued or had lawsuits filed against them. This is a case that lack of copyright does not mean lack of liability. Take DeCSS for a single example of that.

On the other hand, products released under the GPL have very specific rights granted and released.

• Authors maintain the copyright
• Distribution of the program distributes all the GPL rights.
• There is absolutly no warranty or liability for any use, as far as is allowed by law.
• Patents based on content in GPL software must be licensed for everyone's free use, or not at all.
• Redistribution must follow specific rules, or it is prohibited

First a case where a GPL'd program could generate an infringing program. Observe that in the case of DeCSS, it COULD NOT be released under GPL because portions of the content are patented, and the patent owners are unwilling to agree to that style of license issue. The program CAN be released to the Public Domain, because the author does not need to keep the copyright. The legality of the program is being decided by the courts.

A perfectly legal GPL'd prime number generating program could generate the DeCSS source code as a prime number which is illigal under the DMCA. The program has substantial non-infringing uses, but is also clearly punishable by the DMCA. Granted, the author of a PD prime-number generator is could probably make the same arguments as the GPLed software arguments. The GPL explicitly disclaims all liability provided the conditions are met (which a prime number generator does).

Gigalaw's copyright permission myths page states:

Public domain only refers to the lack of copyright protection. While copyright is very important, a work may be protected by other legal theories that survive after the copyright expires. For example, public domain artwork, particularly distinctive characters (such as Beatrix Potter's "Peter Rabbit" illustration), can achieve protection under trademark law and function as a logo or source identifier. Likewise, mere ideas, which are not protected under copyright law, may be protected under trade secret or contract law.

For more information on the GPL's philosophy, check out the Gnu/FSF philosophy page.

---
The ideas expressed are not necessarily those of anyone, including myself.

The public domain has several issues.

• It means the content is not copyrighted. Either the copyright has expired, or was released.
• Lack of copyright is not equivelant to a lack of liability.
• There are implied warranties and liabilities for particular uses when other areas of law are applied. Liability and warranties are not limited to copyright.
• Any change, even minor, creates a 'derivative work' of the PD work, allowing anyone to usurp the work you have done.
• The user of PD content must be able to PROVE that the content is available as public domain.

Decoders for various image, movie, and disc formats have been released into the public domain, yet the authors have been sued or had lawsuits filed against them. This is a case that lack of copyright does not mean lack of liability. Take DeCSS for a single example of that.

On the other hand, products released under the GPL have very specific rights granted and released.

• Authors maintain the copyright
• Distribution of the program distributes all the GPL rights.
• There is absolutly no warranty or liability for any use, as far as is allowed by law.
• Patents based on content in GPL software must be licensed for everyone's free use, or not at all.
• Redistribution must follow specific rules, or it is prohibited

First a case where a GPL'd program could generate an infringing program. Observe that in the case of DeCSS, it COULD NOT be released under GPL because portions of the content are patented, and the patent owners are unwilling to agree to that style of license issue. The program CAN be released to the Public Domain, because the author does not need to keep the copyright. The legality of the program is being decided by the courts.

A perfectly legal GPL'd prime number generating program could generate the DeCSS source code as a prime number which is illigal under the DMCA. The program has substantial non-infringing uses, but is also clearly punishable by the DMCA. Granted, the author of a PD prime-number generator is could probably make the same arguments as the GPLed software arguments. The GPL explicitly disclaims all liability provided the conditions are met (which a prime number generator does).

Gigalaw's copyright permission myths page states:

Public domain only refers to the lack of copyright protection. While copyright is very important, a work may be protected by other legal theories that survive after the copyright expires. For example, public domain artwork, particularly distinctive characters (such as Beatrix Potter's "Peter Rabbit" illustration), can achieve protection under trademark law and function as a logo or source identifier. Likewise, mere ideas, which are not protected under copyright law, may be protected under trade secret or contract law.

For more information on the GPL's philosophy, check out the Gnu/FSF philosophy page.

---
The ideas expressed are not necessarily those of anyone, including myself.

This isn't all that different from what the various (c) organizations have been doing for some time. Most infamous was the 1996 effort by BMI/ASCAP to slap fines on the Girl Scouts for singing copyrighted songs around the fireplace -- an effort that backfired in terms of the PR (and led Congress to specifically exempt the Boy / Girl Scouts).

(This article at GigaLaw provides some useful background).

I've heard IP attorneys compare these guys to the Mafia -- they basically go around extorting companies to pay them hush money and keep their attack dogs at bay. For large companies, the price of buying them off is cheaper than the price of hiring defense attorneys.

Fair use is free speech, Congress does not have the right to take it away.

What it boils down to is that the government does not have the right to make any laws that infringe speech. They just have the right to make laws that promote the progress of science and the useful arts. If they can't do this without infringing speech, they have to go back to the drawing board.

Both the statute (CDA's Section 230 provisions) and case law are very strong in the exemptions granted to the operators of a computer service from the duties and liabilities of a traditional publisher. Every direct challenge brought against an online service provider regarding speech contributed by a third-party has been defeated both at trial and in appellate court.

• Zeran vs America Online. U.S. Court of Appeals, Fourth Circuit ruled in favor of defendant, AOL, that defendant was NOT responsible for defamatory statements made via its service by a third party per 230 of the CDA. Subsequent appeal was denied by US Supreme Court.
• Ben Ezra, Weinstein, and Co., Inc. v. America Online Inc. The US District Court in New Mexico held that AOL "clearly qualifies" for Internet service provider immunity under 230 of the CDA. The 10th Circuit Court of Appeals also upheld this finding.
• Curzon Brown v. San Francisco Community College District Plantiff charged that TeacherReview.com was responsible for defamatory comments made on its web site about a professor at San Francisco City College. In settlement, plantiff abandoned claim and was forced to pay $10,000 to TeacherReview.com for legal fees.

Of course no idea alone is patentable -- "A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine." (1).

The current problem IMHO is due to the overturning of the business method exception (2) which almost allows just an idea to be a valid patent and were excluded with a 100 years of case law, that this type of business method patent was not the intent of the constitution, and also one of the reasons all these patents were available, since even though the basic ideas are very old (for instance Priceline patented a reverse auctioning business method) no one was able to patent them when they first appeared since business models werent able to be patented (with good reason IMHO) until 1998.

I think what you're describing is the "Winner-Take-All" idea. Here is an article that mentions it. I don't necessarily condone the remedy in the article but it's still somewhat interesting.

Hmmm... I was under the impression that one could not trademark generic English words. This is why cereal companies can't trademark "Raisin Bran," and why it's Froot Loops and not Fruit Loops (see the GigaLaw article on trademark law, for example).

From what I can tell, calling a product Lindows is not the same as calling a company Lisney. "Disney" is an arbitrary mark (according to the article above), and is entitled to protection.

On the other hand, "Windows" seems more like a generic mark to me (like Raisin Bran), and is thus not registrable as a trademark.

Did Apple using the term "windows" from the beginning? If so, to me that supports the idea that "Windows" is generic.

-- D.

Emerging Legal Guidance on 'Deep Linking' By Margaret Smith Kubiszyn

"Once again, Ticketmaster took the lead toward resolution of the deep-linking issues by filing suit against Tickets.com in July 1999. Tickets.com could be characterized as a competitor of Ticketmaster, acting as a clearinghouse for tickets, linking to sources for tickets to events (including links to Ticketmaster), auction services and premium ticket brokers. Ticketmaster alleged that, in addition to deep linking into Ticketmaster's site, Tickets.com copied material from the Ticketmaster site and posted false information about the availability of tickets from Ticketmaster."

...

"On March 27, 2000, U.S. Judge District Judge Harry Hupp issued a ruling dismissing four counts of Ticketmaster's complaint, including some counts involving deep linking. In dismissing the first claim, which alleged copyright infringement, Judge Hupp stated: "[H]yperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently."

Sig: What Happened To The Censorware Project (censorware.org)

What happens in the music industry is that the reocrding company (Party A) "lends" money to the artist to make a recording. This money must be paid back by the artist before they get anything.

It's most definitely NOT the true definition of "work for hire"

"Work Made For Hire" is a specific legal term, with a specific definition, specified in Section 101 of the Copyright Law. A good resource is gigalaw.com.

In brief, "Work Made For Hire" includes: "work specially ordered or commissioned for use as a contribution to collective work, as a part of a motion picture or other audiovisual work, as a sound recording,..." (From the site).

For the artists, their work is a "Work for Hire" because they signed a contract agreeing so, and because the law says it is.

Should this be the case? No, but the artists knew what they were getting in to (or should have) and shouldn't have agreed to it.

Yah... I've got the strange feeling that the 'company' which owns this domain isn't from Armenia, but rather put that there to make it seem harder to get a hold of him.

"And what makes me say that?" you ask. Well, I did a little search on google and came up with this discussion about someone else who had (roughly) the same problem. Now... if you move through the responses, you'll find this response which lists the contact information about the guy who owned this other domain name. Now the name of the company is different, but if we scroll down, we'll see this:

Administrative Contact:
Master, Web admin@segod.com
NameRegister.com
5 Tpagrichnery St.
#33
Yerevan, AM 375010
AM
208.978.3555
208.978.3555


and this:

Domain Auctions
5 Tpagrichnery., # 33
Yerevan, ARMENIA 335010
AM

Same address, same number, different company name... but if you keep going down, you'll find this:

Administrative Contact:
Web Master admin@segod.com
http://x.segod.com
5 Pechatnikova St., #33
Yerevan, 375010
AM
Phone- 208.978.3555
Fax- 208.978.3555

Same phone number, same zip/postal code, same street number & apt number, but different street name. Now, I'm no statistician, but I seem to think that the odds of this happening are very low to be almost non-existent. That, and the area code for Armenia is (374-2) according to a 1998 web page with contact info for a company that is located on Tpagrichnery St. Oh, and the fact that Pechatnikova St. only pulls up matches involving domains being bought after they lapsed.

So, not only does a low-life, porn displaying, domain auctioner have your domain, but he seems to be a low-life, porn displaying, lying domain-auctioner.

Yah... I've got the strange feeling that the 'company' which owns this domain isn't from Armenia, but rather put that there to make it seem harder to get a hold of him.

"And what makes me say that?" you ask. Well, I did a little search on google and came up with this discussion about someone else who had (roughly) the same problem. Now... if you move through the responses, you'll find this response which lists the contact information about the guy who owned this other domain name. Now the name of the company is different, but if we scroll down, we'll see this:

Administrative Contact:
Master, Web admin@segod.com
NameRegister.com
5 Tpagrichnery St.
#33
Yerevan, AM 375010
AM
208.978.3555
208.978.3555


and this:

Domain Auctions
5 Tpagrichnery., # 33
Yerevan, ARMENIA 335010
AM

Same address, same number, different company name... but if you keep going down, you'll find this:

Administrative Contact:
Web Master admin@segod.com
http://x.segod.com
5 Pechatnikova St., #33
Yerevan, 375010
AM
Phone- 208.978.3555
Fax- 208.978.3555

Same phone number, same zip/postal code, same street number & apt number, but different street name. Now, I'm no statistician, but I seem to think that the odds of this happening are very low to be almost non-existent. That, and the area code for Armenia is (374-2) according to a 1998 web page with contact info for a company that is located on Tpagrichnery St. Oh, and the fact that Pechatnikova St. only pulls up matches involving domains being bought after they lapsed.

So, not only does a low-life, porn displaying, domain auctioner have your domain, but he seems to be a low-life, porn displaying, lying domain-auctioner.

This is the fucking WWW! You can't tell me what I can and can't link to! People who do that don't understand the way the web works. And if you think they'll prevail in court, THINK AGAIN!

The patent is fairly specific in regards to the actual recording process - in that the input stream is encoded to mpeg-1 - I'm not entirely sure, but I doubt VCRs used mpeg-1

You seem correct about the MPEG requirement; Apple, Microsoft, and Real could circumvent the patent by using their proprietary video encodings. From the patent:

providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;

This covers not only MPEG-1 but also MPEG-2 and MPEG-4 (aka DivX ;-) )standards; infringing this patent requires infringing the patents on MPEG. To infringe a patent, you have to infringe one claim, but to infringe a claim, you must infringe every part of that claim. As all other claims refer back to claim 1 (and the nearly identical claim 32), a fellow could circumvent this patent by using a compression technology other than one created by MPEG, such as the Ogg Tarkin video compression technology that Xiph.org is developing.

And as diakka said, two tuner cards in one box (or even in one household) could by a reasonable stretch of the imagination be considered infringement.

You're referring to the "doctrine of equivalents," which was recently severely narrowed. The patent explicitly names MPEG, and it does not say "or any other media encoding technology."

According to GigaLaw.com "There are three major defenses to copyright infringement. The first is 'de minimis' use, that is, the amount taken was so small that it does not make a difference." Unless these ringtones are playing a more than a few seconds of music, it isnt likely that they contain enough to be considered copyright infringement. So much for my scheme to copyright the power chords. However, I might be able to trademark them and spew forth litigation later.

Huh? The only CCNV v. Reid case I could find affirms the legislated definition of "work made for hire". The only way an author "loses rights" based on that case is when so much editorial control is influenced as to make a case for joint authorship between the parties. It has nothing to do with the "work made for hire" definition.

I definetly think the representative from Gigalaw has a valid point but I must give credit to the people at iCopyright.com credit for coming up with the idea. Why not give credit where credit is due, they do have big companies like The Indianapolis Star as clients.

But then again, I've always been The jealous type.

I found a good article about Tasini at Gigalaw. The article discusses litigation concerning the switch from movies to videos.

Here's an article all about deep linking and it's legal ramifications.
GigaLaw Deep Linking Article
Also, as far as copyright violation goes, at least one U.S. District Judge disagrees with Brad Templeton as he ruled that deep linking did not constitute copyright violation. (it's on page 4, Ticketmaster vs. Tickets.com)
(well, to be honest he said it's not copyright violation as long as it's clear that you are being transported to another site....so no opening them into frames).

realistically, i think Voodoo Extreme is making a lot more money off of everyone at slashdot jumping directly to the article and being served the ad banner that's on the article pages. (i'm assuming there's one there since they are slashdotted and i cant check...but it's a pretty safe assumption considering i've never seen a news site that only served ads on their main page)

Darth -- Nil Mortifi, Sine Lucre

Umm, the MPAA has tried to enjoin 2600 from linking to sites that contain DeCSS. Judge Kaplan will rule on this pretty soon I suspect. (A matter of weeks).

Openlaw filed an amicus brief on the MPAA's motion to enjoin hyperlinks. Some of the issues are common, some won't have the DMCA's draconian features to help them.

If the MPAA loses their motion, the RIAA will almost certainly lose theirs. The contributory claim is weak, and the direct copyright claim is frivioulous.

In Ticketmaster v Tickets.com the Federal District Court wrote:
"Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. "

The judge also rejected Ticketmasters claims that merely visiting internal pages of a website can constitute creation of a contract.