Slashdot Mirror

Just because Hollywood got started by violating Edison's patent rights does not mean ... that because their business began by defrauding Edison, you have the right to infringe on their rights.

There does exist the unclean hands doctrine. I acknowledge that it probably does not apply to the legal technicalities of infringing copyrights of an industry built on infringing patents, but it likely applies to their moral aspects. Likewise, the fact that the major corporate sponsor of the Sonny Bono Copyright Term Extension Act could not have published Pinocchio in the early 1940s or The Jungle Book in the 1960s if the Bono Act were in effect at those times argues against the moral legitimacy of the Bono Act.

Civil disobedience - eat that Mr. Eisner.

Well, IANAL as well, but have some thoughts. It has been the case that deleted files on a hard drive are sought in investigations (a quick search, for example, found an article about Enron files) and are, presumably, admissible in court. An article on Law.com specifically discusses comparison of deleted files with current versions to reveal a change history. If that is the case, then I would assume that the same applies to previous revisions included in a file that still exists, and they would be admissible.

The professor would not win. A service provider (website) will not be held responsible for what their users say if they remove anything illegal after a reasonable amount of time after receiving a complaint.

Here is a relevant legal case:
Carafano v. Metrosplash.com, Inc.
9th Cir.
08-13-2003
"Internet dating service was statutorily immune from liability for sexually suggestive profile of actual person posted by identity thief who provided essential published content. Law.com link "

Owen
OP-Design

Here's mine, where's yours?

Here's a couple:
http://www.law.com/jsp/article.jsp?id=105613989048 1

http://www.nusd.k12.az.us/nhs/gthomson.class/artic les/judicial/9circut.htm

Excerpt:
Over the last 20 years, the 9th U.S. Circuit Court of Appeals has developed a reputation for being wrong more often than any other federal appeals court.

By both measures, the 9th Circuit was wrong more often than any other circuit in the dozen years Posner surveyed, though 1997

You're confusing the burden of proof for criminal cases with the burden of proof for civil cases.

With criminal cases, the operative phrase you'll hear is beyond a reasonable doubt, and I think that's what you're applying here. With civil cases, only a preponderance of the evidence is necessary.

Another important concept that many amateur lawyers miss is the "laugh test." If you're caught sharing the collected works of Metallica and your defense is that those files were really drink recipes and it's a Dickens-like coincidence that the filenames happen to match up exactly with the Metallica oeuvre, it won't fly.

"Who knows."

I know that was a rhetorical statement, but there's a clear answer: lawyers do. As in, the highly paid legal team that the RIAA likely consulted for months on end before embarking on the lawsuits. It's a safe bet that they know what they're doing.

Lawyers might get a chance.

The Syndey Morning Herald is running this article about Perth-based open source consulting company CyberKnights.

Just another civil suit against SCO? Maybe not. The director of CyberKnights uses the phrase fraudulent claims. Fraud can be charged as a crime as opposed to a purely civil matter like a copyright or patent infringement. See what LAW.COM has to say about the subject.

Of course this is pure speculation by a non-lawyer (me) but perhaps with the help of the ACCC (mentioned in the article), CyberKnights can bring the criminal charges which many of us think are appropriate.

The public perception of Boies is widespread buy wrong. Boies is really just a very wealthy ambulance chaser with a lot of broadcast time. He faces disciplinary action from the Florida and New York bars for unethical conduct. See this story for the short version, and use Google for the fascinating tale of how Boies tried to extort a small Florida gardening business.

I think you're referring to what is known as a class-action lawsuit. Indeed, one can be filed on behalf of the entire OSS community. I'm just not sure who would be funding the legal fees to such an action as the OSS community is not tightly coupled in a company, but represented by a loosely nit group of developers working/contributing in their spare time for the betterment of our collective. Perhaps the EFF can represent them?

Please post a link showing that this is true of copyrighted material. Here is a definition for possession of stolen goods, but in copyright infringement nothing is stolen and this law does not apply.

Your standard garden variety law student fresh out of one of the top national schools, with no experience under her belt, gets 125K a year. A couple tens of millions makes a bonus that a partner yawns at.

I had to laugh when I read this. Is this really what people think? There are many lawyers out there, but only so many 125K-starting pay jobs. The median salary for lawyers is around $89,000 -- and this is for all lawyers in this country, not just the fresh out of law school ones. Really, only the top students out of the top national schools get the opportunity to earn 125K with no experience. Also, there are very, very few firms at which partners even average profits per partner near or above a million dollars (sorry, only 2000 PPP figures). The rest of the thousands upon thousands of law firms and lawyers earn pretty normal salaries.

FTC floats patent changes

Released yesterday from the the FTC

Comments from law.com

Check this quote out:
"There is a little underappreciation by the FTC for the applications that don't get allowed," he said, adding that more than 80 percent of business method patents are rejected.

Sounds great but 20% do make it..

Sitefinder was essentially trying to make a profit of peoples typos, just like typosquatting. Typo squatting was equally innovative. I run bubba's books and register amozon.com. If I give the consumer better deals, where's the harm. Likewise, I have a licensed archive of naked people, and wonder how I can make money off it. I register disnay.com, put the pictures up for free. Again, consumers benefits because they get to look a free naked people, and when disney comes a knockin', I reluctantly give up my business for 100K.

It is true that sitefinder may be providing a service, and it is true that they have not yet put up pop up ads or links to porn sites, but if they are allowed to continue what is there to stop them?

Typosquatting probably isn't a a valid business model and clearly verisign should not be encouraging it. Unless of course part of their business model is to encourage typesquatting, transfer the domain name to victim, and then have the victim pay the registration fees into perpetuity.

slander

n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.

There's a small article at law.com about it:

http://www.law.com/jsp/article.jsp?id=105102823902 6

Apparently he was unable to change it to direct it to his website for several months after registering it.

I suspect that register.com may have shot themselves in the foot by claiming that the contract did not explicitly give Mr Zurakov
exclusive control over the site. The judge did not agree, saying that if if it wasn't explicit in the contract 'to register' a site should give you more than just a listing in whois.

Register.com should have just admitted that something went wrong with their DNS assignment system and settled out of court. They probably could have gotten away with $5000 or so.

You might as well link the law.com article

There is one, but the record companies have done some tricky legal maneuvering to stall it. You can see the complaint online.

There is also an article about the case.

Copyright law is [only] a civil matter

Where did you get the impression that copyright law is merely a civil matter? Yes, this seems to be the general consensus here on Slashdot; still, the uninformed opinions of a thousand babbling idiots do not reality make. It's true that copyright is often enforced through the civil court system here in the U.S., but you should be aware that copyright infringement is also a federal criminal offense, and has been practically since the beginning of time.

But that's not the real issue you raised. You mentioned something about the consequences of violating the GPL, which, as you said, is a contract between private parties and therefore enforceable under civil law:

it's a contract dispute and a civil case. The worst that can happen is a financial judgement

If Microsoft (or any other party) is found to have violated the terms of the GPL, the court can order financial restitution--you're right about that. But it doesn't have to stop there. Besides awarding damages, the judge can choose from a veritable cheese platter of remedies to impose on the party in violation, including, in contract disputes, something called specific performance . This forces the party found to be in violation of the contract to comply with its terms.

Now, specific performance is rarely ordered as a part of judgments outside property-sale disputes, mainly because (a) plaintiffs usually care less about adherence to the contract than about receiving compensation for their financial loss, and (b) monitoring compliance is often impractical. However, if someone brought suit against Microsoft for violating the GPL, I imagine neither of these would be the case. Moreover, the clause mandating distribution of the source along with compiled binaries is arguably the GPL's primary raison d'etre, so the remedy of specific performance would seem especially appropriate here.

For these reasons, I happen to think it rather likely that if judgment went against Microsoft in a case over a violation of the GPL, the judge would in fact order the company to release the source of the affected software. In any event, the court would certainly at least have the option of ordering Microsoft to comply with the GPL's terms.

Anyhow, IANAL either, but I do have an ego the size of a corporate lawyer's paycheck. Does that count?

yours

Let me correct myself, it's "barratry", not "battary". Writing from heart.

This is just one more in a long line of extortion suits DirecTV has been filing over the past few months. They have sent out lawsuit threats to over 100,000 end users who in many cases have done nothing more than purchase an ISO Standard Smart Card reader.

Basically they offer a settlement for $4000 or they take you to federal court. So far almost 7000 people have had federal civil cases filed.

The whole process is self perpetuating. Most people can't afford to defend a federal case so they can use the settlement cash to take the rest to court.

Oh yea, just look at what DirecTV has been pulling over the past few months. They have sent out lawsuit threats to over 100,000 end users who in many cases have done nothing more than purchase an ISO Standard Smart Card reader.

Basically they offer a settlement for $4000 or they take you to federal court. So far almost 7000 people have had federal civil cases filed.

Remember the whole process is self perpetuating. Most people can't afford to defend a federal case so they can use the settlement cash to take the rest to court.

In the case of Bigbee v. Pacific Telephone, an intoxicated driver lost control of her car, veered off the road, jumped a curb, crossed the sidewalk, went into a parking lot, and hit a man standing in a telephone booth fifteen feet from the road. It is not surprising that the man in the phone booth filed a lawsuit. What is surprising, though, is that he sued the company responsible for the design and installation of the phone booth.

Although the lower court tossed out the case, liberal California Supreme Court Justice Rose Bird ruled against the phone company. She ruled that the risk that someone might veer off the road and crash into the telephone booth was foreseeable, therefore a jury could hold the company liable. Furthermore, she found of no consequence that the harm to the plaintiff came about because the driver was intoxicated.

Public domain does not refer to abandoned physical property. It refers to works that are not covered by copyright or patent at this time. Or land which is owned by the government. Since garbage is not land, the only applicable definition would be the first sense regarding copyright. If we're going to discuss these matters of law, we ought to at least attempt to get the words right.

Let me add a bit to your lexicon:

apparent authority
ostensible authority

The fact that neither of these terms have shown up in the discussion thus far indicate how little business training most slashbots have. See, sometimes, there's value to an MBA. If nothing else, we're more conversent with lawyer-ese than most programmers.

(And in case you were wondering what all this means, basically, anyone who downloaded the software might have it free and clear. AOL, via Nullsoft, via authority of Justin, may have to abide by the original terms, GPL.)

Let me add a bit to your lexicon:

apparent authority
ostensible authority

The fact that neither of these terms have shown up in the discussion thus far indicate how little business training most slashbots have. See, sometimes, there's value to an MBA. If nothing else, we're more conversent with lawyer-ese than most programmers.

(And in case you were wondering what all this means, basically, anyone who downloaded the software might have it free and clear. AOL, via Nullsoft, via authority of Justin, may have to abide by the original terms, GPL.)

That's not entrapment. Look it up. People: the WWW has all these handy reference tools to help you get a clear understanding of these issues, so could you take two seconds and take advantage of the huge wealth of knowledge that is out there?

Now as for free speech, like the other responses said, corporations have printing presses too. As was made crystal clear in the recent Nike free speech case, corporations can say whatever they want as long as its not Commercial Speech . Its also discussed here. 3 out of 4 Supreme Court Justices thought Nike (a corporation) should have its free speech and eat it to.

If you still want to ignore how things are, this site abolishcorporatepersonhood.org should provide you with some mental masturbation. Just don't forget to take everything they say with a grain of salt... like "they abuse their 4th amendment right to privacy". That right to privacy means you are protected from unreasonable search and seizures.

"Ring Ring! its the BSA, we're here to inspect your computers and make sure you have licenses for everything"
nhavar: Fuck off, this is my business, where's your warrant to search my premises?
BSA: Hahaha, why do we need a warrant? Your business doesn't have a right to privacy!
I bet you could stick some kind of Soviet Russia joke in here

Anyways, i think i'm getting off track. the point is corporations need to be recognized as people for certain basic functions of business.

P.S. I can't be bothered to search for the statistics, but the majority of people are quite happy with their Senator/Congressman; they just aren't too thrilled with the Senate/Congress as a whole. go figure
P.P.S. What if you start your own one man business? are you a person? are you a company? are you a schizo?

The compilation copyright issue goes away when the opinions are placed in a a searchable database, because the ordering and presentation by the publisher has been removed. That's from the famous Feist vs. Rural Telephone case, the one that ruled that phone book content is not copyrightable.

Despite having won, HyperLaw doesn't seem to have come out of this too well.

Do US barratry laws not make it possible to bring criminal proceedings against companies who engage in this sort of abuse?

Every time idiotic patents like this get rubber-stamped by the patent office, the government has in effect granted a company a license to legally harrass (and drain the resources of / put out of business) other companies. And as has already been said here, the proceedings themselves are a massive waste of legal resources and taxpayer money.

Obviously the root of the problem is in the utterly incompetent USPTO, but in the meantime we are desperately in need of some laws with BIG TEETH to deal with companies who attempt to make money through such legal gymnastics, rather than through genuine innovation and excellence.

To exploit the glaring flaws in the letter (ie, the flawed implementation) of the law for profit, while willfully ignoring the obvious spirit of the law, should be dealt with harshly. Put these bastards out of business. Start setting an example and showing shareholders that it is NOT in their companies' best interests to file for a million frivolous patents and then use them as sledgehammers. Demonstrate through a few high-profile cases that it could be extremely dangerous to the bottom line to engage in games like this, and the bullshit will stop.

The closest I could come up with is a lawsuit filed against yahoo late last year about online ordering.

It doesn't go into details, but it appears the NCR's claims, at least in this case (and according to the yahoo attorneys) are as crazy as the slashdot headline suggests. No mention is made of anyone paying them license fees, however.

Read about it here.

Here is a less petty and much more ideological ground for Schlafly opposing Sonny Bono. It discusses the ground that I very much hope the Court doesn't judge the Bono Act by -- that it has the power to decide how many years a "Limited Time" really is (I doubt it will). As the article discusses, to do so would possibly have implications for other issues the arch conservatives, and many libertarians, care very deeply about in other arenas in Congressional power from gun control to federal crime legislation and beyond.

It's a long shot, but it's there.

I just ran across this annoyance today. The website insists you allow cookies (by default, I don't), and redirections you to a NONEXISTENT error page when you don't allow cookies. Try it yourself, turn off cookies and go to law.com

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.

From Law.com

barratry
n. creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal in all states and subject to criminal punishment and/or discipline by the state bar, but there must be a showing that the resulting lawsuit was totally groundless. There is a lot of border-line barratry in which attorneys, in the name of being tough or protecting the client, fail to seek avenues for settlement of disputes or will not tell the client he/she has no legitimate claim.

I forget the technical legal term

Writ of Mandate. aka Writ of Mandamus A court order to a government agency, including another court, to follow the law by correcting its prior actions or ceasing illegal acts.

(BTW, IANAL, but more details can be found here in a legal dictionary)

link to Jackson's original essay and another link to the print version.

link to Jackson's original essay and another link to the print version.

here

here I think - http://www.law.com/servlet/ContentServer?pagename= OpenMarket/Xcelerate/View&t=PubArticleDC&c=PubArti cle&cid=1032128635760&live=true&cst=1&pc=0&pa= 0

slander
n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. ...

Had they asked, I would have gladly signed it-- because in the state of California, blanket non-compete covenents are not enforcable. It's written into state law and has been upheld numerous times in court. If you're a tech worker in California and your company had you sign a non-compete, they spoofed you, unless it's very narrowly and specifically written and has only a negligible impact on your ability to be employed. You can't contract away that right, and you can't be fired or denied employment for refusing to sign a blanket non-compete

What this precedent does is prevent companies from using trade secret law to do an end-run around the state ban on non-competes. Which is very important to California tech workers, since it plugs a hole in the ability to go from job to job.

IANALBMGIIHR (I am not a lawyer but my girlfriend is in human resources). I'd suggest reading Walia v. Aetna for an example of how badly a company can get hit if they take action against somebody in california for not signing a non-compete: $54k in compensatory damages, $125k for emotional distress, and $1 million for punitive damages. Ouch

The court didn't have to rule on whether non-competes are legal in California; see Walia v. Aetna. The court said that the plantiff was trying to make an after-the-fact non-compete, which would be unenforcable in California.

(Originally part of an embarrassing personal page for my family).

law.com

Any lawyers reading this? I'm rather confused. What happened to the idea of estoppel by laches? To quote, "the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party".

Surely waiting fifteen years before asserting a patent (and allowing infringing practices to become commonplace) is a perfect example of this?

Here.

New York Law Journal
The opinion

I heartily approve of this ruling. The court has managed to make a sensible decision about an online legal issue by extrapolating existing laws. No need to treat web pages as something magically different, or worthy of less protection.

here.

(Taken from here.)

Milberg Weiss Files Suit Over CDs With No-Copy Technology

Brenda Sandburg
The Recorder
06-17-2002

Milberg Weiss Bershad Hynes & Lerach has jumped into the legal brawl over how much access consumers should have to copyrighted digital music.

Best known as a leader in shareholder class actions, New York-based Milberg Weiss filed a California consumer class action against five record labels Wednesday claiming that the audio discs they are selling with no-copy technology are misleading and defective.

In Dickey v. Universal Music Group, 275602, filed in Los Angeles Superior Court, Milberg Weiss requests that the defendants be enjoined from selling the compact discs and ordered to refund or replace them and/or label the products as inferior to standard CDs.

The record labels "conspired and agreed among themselves to sell defective audio discs which were rendered unreproducible [sic] or unstable for use in many personal computers," the complaint states. "By selling these inferior quality audio discs, defendants are attempting to curb the public's exercise of their right to play, backup, space-shift and time-shift their own music to other playback mediums."

Milberg Weiss' William Lerach and Darren Robbins did not return calls Friday. Nicholas Koluncich III, a solo practitioner in Albuquerque, N.M., who is working with Milberg Weiss on the case, said the record companies also are misleading consumers. "These non-record discs are misrepresented as compact discs, which they are not," he said. "They have poorer sound and quality" and built-in errors that cause computer problems.

Koluncich said he learned about the defective discs from his sister, Elizabeth Koluncich, who is one of the plaintiffs in the case.

The Recording Industry Association of America countered that record labels have the right to protect their property from theft.

"With this frivolous action, the plaintiffs' bar has sunk to a new low, filing a lawsuit over practices that most U.S. companies have not even engaged in so that they can stake out their claim to class action attorneys fees," RIAA president Cary Sherman said in a statement.

Koluncich said no one knows how many of the altered discs are on the market. According to the complaint, Midbar Technology -- an Israeli company that provides copy-protection technology -- has said more than 10 million discs with no-copy technology have been sold.

The RIAA said it is aware of only three CDs that have been commercially released in the United States that use copy-protection technology: "More Fast and Furious," the soundtrack to "The Fast and the Furious;" "A Tribute to Jim Reeves" by Charley Pride; and "Serenatas" by Los Toros Band.

Consumers apparently have figured out ways to get around Sony Music's protection technology. News publications recently reported that by tracing the rim of a disc with a felt tip marker consumers were able to copy the music.

Fred von Lohmann, senior IP attorney at the Electronic Frontier Foundation, said the advent of copy-protection technology would lead to further legal battles with respect to the Digital Millennium Copyright Act. The 1998 law prohibits the use of technology to circumvent copy-protection devices.

"Magic marker manufacturers aren't worried," von Lohmann said. "But people who distribute CD copying software and CD burners are probably getting expensive legal advice regarding the DMCA."

The battle over copyright protection in the Internet era is far from over. The entertainment industries, electronics and computer companies, consumer groups and Congress are fighting over how much protection is adequate.

Sen. Ernest Hollings, D-S.C., introduced a bill in March that would require the manufacturers of computers, television sets, cable boxes and other digital media devices to incorporate technology in their products to prevent illegal copying or redistribution.

The Consumer Broadband and Digital Television Promotion Act calls on manufacturers to work with content industries to develop standards and technologies to protect digital content.

Earlier this month the motion picture studios proposed implementation of a "broadcast flag" that would mark digital TV broadcasts and prevent them from being copied and retransmitted. Consumer electronics groups and others rejected the proposal.

Milberg Weiss is familiar with the debate over copyright and digital music. It had a brief role in litigation against Napster Inc., coming in as co-counsel in a class action brought on behalf of independent artists. The plaintiffs, who claimed their music was being traded through Napster's file-swapping service without their consent, failed to obtain class certification.