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Ruling in favor of EULAs: Vernor v. Autodesk

The article linked is actually an editorial in the New York Times:
http://www.nytimes.com/2015/11...

Links to the actual case, from the Associated Press, on the Boston Globe site:
"American can't sue FBI over abuse claims, federal appeals court says", https://www.bostonglobe.com/ne...

Link to the decision:
https://www.cadc.uscourts.gov/...

The US has one of the best records for fair and public trials of any nation in the history of the planet.

If this statistic weren't fabricated or if it were possible to compare fairness between even a single pair of trials, let alone somehow compare fairness in aggregate - it would be a shame that ninety percent of defendants 'choose to' please guilty rather than go to trial - so afraid are they of a fair trial.

You miss a major thing about the NSA: it's designed to hoover up foreign intelligence, and forbidden from doing so domestically. Putting EU data in EU silos makes it easier for the NSA legally: no one can object that they're stealing US citizens' data. An EU silo is totally, awesomely fair game for them to hijack.

Indeed! It's much more easier to bypass all those pesky FISC procedures. Up to now, NSA had to do some pretty heavy vetting to distinguish between US and non-US Persons; EU persons self-segregating themselves out of the pool of people stored in US data centers makes it much more easier for the NSA.

That's an excellent example of the law of unintended consequences.

You miss a major thing about the NSA: it's designed to hoover up foreign intelligence, and forbidden from doing so domestically. Putting EU data in EU silos makes it easier for the NSA legally: no one can object that they're stealing US citizens' data. An EU silo is totally, awesomely fair game for them to hijack.

Indeed! It's much more easier to bypass all those pesky FISC procedures. Up to now, NSA had to do some pretty heavy vetting to distinguish between US and non-US Persons; EU persons self-segregating themselves out of the pool of people stored in US data centers makes it much more easier for the NSA.

That's an excellent example of the law of unintended consequences.

I suppose one could argue that use of data collected by scanners still constitutes use of the scanner.

You could indeed, as if it were invasion of privacy by one organization, it would still constitute an invasion of privacy by another organization, and an even bigger invasion of privacy for the second to share back to the first.

However, let's be clear. Scanning license plates is NOT an invasion of privacy. Your license plate is sitting out in the open in full public view. I, myself, could walk down the street with clipboard in hand and write down every single license plate I find. I could do this every day and there is not a single thing wrong with it beyond how suspicious it looks (maybe I might get charged with prowling...maybe). If I replaced the clipboard with a camera, it's still the same situation. If I replace myself with the police it's still the same situation.

The only thing that makes it "bad" for the police to do it is because they have access to a database of said license plates and can look up owner information on any or all of them. Now, looking up the owner of a license plate when they've done no wrong and nothing to indicate that they may possibly do anything wrong may violate the 4th Amendment, but nothing I've found confirms that (I even found once case where they outright ignore the situation of a cop looking up a random license plate), so as far as I can find it's not illegal for police or anyone else to be scanning license plates. That's regardless of any privacy concerns that a given organization may have.

Wut?!?!

Per the decision:

The preliminary injunction entered by the district court is hereby vacated and the case remanded for such further proceedings as may be appropriate.

It doesn't overturn the previous finding that the program is unconstitutional - it makes it like that finding never existed in the first place.

That's not what that means. The appellate court vacated the preliminary injunction, they did not reverse a legal determination on constitutionality. As one of the other commenters noted, I actually oversimplified the ruling - they didn't even determine that the plaintiff definitely can't pursue the case, they just determined that he can't get a preliminary injunction because there aren't enough facts to support his standing yet.

The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program. The court instead found that this particular plaintiff does not have standing to challenge the program in court. It's a very problematic ruling, raises a lot of issues, and in my opinion should be reversed - but it certainly does not overturn the lower court's finding that the program is unconstitutional as a matter of law.

Wut?!?!

Per the decision:

The preliminary injunction entered by the district court is hereby vacated and the case remanded for such further proceedings as may be appropriate.

It doesn't overturn the previous finding that the program is unconstitutional - it makes it like that finding never existed in the first place.

It isn't "identity fraud", now you are just making up terms. There is actually a legal term and laws against this already called Wire Fraud or Mail Fraud. Too bad prosecutors and investigators don't put the screws to these idiots and send them off to federal pound me in the ass prison. The get charged with things but only small fraud charges and the victims of the original fraud then go off to further victimize others.

The one time I was contacted about having some huge credit card bill that was late by some credit card company, I politely told that that I have never requested nor received a card from them. I then informed them that since I had never personally opened an account with them they were attempting to commit wire fraud at this point and that if they pursued this matter I would be filing wire fraud chargers against them. Additionally I told them that reporting a non payment or late payment or any such action on my credit report I would consider to be libel and would file a suit against them for that. It is amazing how quickly their tone towards you changes when doing something like that. They immediately apologized and in short order got things cleared up and I even received a letter in the mail from them stating that I was not the owner of that debt and that all issues related to it had been taken care of. Granted this was with American Express and I have heard that they actually have pretty good customer service but it did seem to cut through the bull shit pretty quick.

It isn't "identity fraud", now you are just making up terms. There is actually a legal term and laws against this already called Wire Fraud or Mail Fraud. Too bad prosecutors and investigators don't put the screws to these idiots and send them off to federal pound me in the ass prison. The get charged with things but only small fraud charges and the victims of the original fraud then go off to further victimize others.

The one time I was contacted about having some huge credit card bill that was late by some credit card company, I politely told that that I have never requested nor received a card from them. I then informed them that since I had never personally opened an account with them they were attempting to commit wire fraud at this point and that if they pursued this matter I would be filing wire fraud chargers against them. Additionally I told them that reporting a non payment or late payment or any such action on my credit report I would consider to be libel and would file a suit against them for that. It is amazing how quickly their tone towards you changes when doing something like that. They immediately apologized and in short order got things cleared up and I even received a letter in the mail from them stating that I was not the owner of that debt and that all issues related to it had been taken care of. Granted this was with American Express and I have heard that they actually have pretty good customer service but it did seem to cut through the bull shit pretty quick.

Sorry, you're out-of-date. Federal Appeals Court last year ruled that border guards DO need probable cause to search such things as computers and phones under most circumstances. The only exceptions are circumstances which would also be exceptions away from the border.

The current legality of border searches of electronic property isn't fully settled (see e.g. wikipedia), but the case you're linking is completely unrelated to that issue. The decision doesn't discuss border exceptions -- from the court's perspective, it's a regular arrest and search, and they follow the Supreme Court's recent ruling in Riley v. California (requiring a warrant for searches of a cell phone found during an arrest).

In the US, for example, the constitutional requirement of probable cause and protecting against unreasonable search and seizure and such don't apply to their kind.

Sorry, you're out-of-date. Federal Appeals Court last year ruled that border guards DO need probable cause to search such things as computers and phones under most circumstances. The only exceptions are circumstances which would also be exceptions away from the border.

The government does not have the right to sacrifice individuals for the good of the "herd".

True, and requiring a vaccine is in no was sacrificing an individual.

personally stopped vaccinating my kids after having to rush one to the hospital the morning after one vaccination.

Did you stop driving after having an accident? Did you stop allowing your children to play after they injured themselves falling down? You are an example of someone who has no idea what risk analyses is. The risks of getting a vaccine are far smaller than the risks of not getting one. Thanks for making an uninformed decision and putting your own children,people who can not get vaccinated and to a lesser extent even vaccinated children at rink.

And no, the "herd" did not cover the ER bill, or followup costs.

Did you make a claim to the National Vaccine Injury Compensation Program.

If you cannot find an insurance to uderwrite such coverage of any complications, then your risk assesment is probably spoonfed to you by the company making the vaccine, and completely wrong.

That is why the National Vaccine Injury Compensation Program was created. Your lack of use of the program is the problem.

An arrest warrant is NOT a search warrant ... and if the marshals service wants to use these devices as a part of servicing an arrest warrant then they need to file for a concurrent search warrant.

Not according to the court. From the findings in the actual court case:

The Supreme Court has held that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."

But it was the radar that gave them "probable cause", right? Nope. Ibid:

We're the first to admit that in isolation none of these facts may mean much. Even together they hardly prove a suspect is home. But in combination we believe they are enough to establish probable cause (a fair probability) for such a conclusion.

What are "these facts"? Nothing that included "radar said so". And the court went so far as to point out that the Supreme Court ruling did not require "probable cause", but only "reason to believe".

What about the search that found the guns? Ibid:

It is settled law, though, that officers lawfully entering a home to effect arrest can conduct "a quick and limited search of premises" -- what is sometimes called a "protective sweep" -- if they have reason to worry about someone lurking inside who could pose a danger to them ... And there is much to suggest this standard was met in our case. ... Mr. Denson was a fugitive ... he had a history of violent crime. ... he was a gang member and had violent associates. ... a second person lived in the home who was wanted on an outstanding warrant."

The court goes on to say that the use of the radar might have negated the concern about a second person in the home who would constitute a danger, but then questions whether the radar could actually detect every potential occupant or even differentiate between one and more than one target.

Sorry, the case used to whip up a frenzy over the "wide-spread" "nation-wide" willy-nilly free-range use of this technology doesn't actually show anything of the sort. A fugitive felon who was reasonably believed to be at home can be served an arrest warrant and the radar device was actually irrelevant. It provided neither probable cause for believing he was at home, nor was it necessary to prove probable cause for a search for weapons.

I wouldn't be surprised if people put up honeypots on Tor just to mess with 'em, and log all of the output over serial or something so that even if they get in, they can't purge the logs of their attempts.

Search warrants are still subject to constitutional requirements of reason and due process; this is a procedural rule independent of that.

It will allow a judge to issue the warrant even if the FBI or police are not sure what judicial district it's happening in. It's important to let a magistrate judge approve a warrant on that basis, because the current rule 41(b) does not provide for it except in terrorism cases. So if you have someone selling hard drugs online, for example, but the government can't tell whether they are located inside the United States or not, this provides a way for them to get a warrant to search.

See the proposed rule (from last November) on page 111 of http://www.uscourts.gov/uscour...

The old one is here: http://www.law.cornell.edu/rul...

Conservatives think it's fine to censor speech they don't agree with. Like the Bonghits 4 Jesus Supreme Court case, where conservatives were very happy that the speech was censored. Typical conservative hypocrisy.

Not all written works are copyrightable in the U.S. See the Feist v. Rural Supreme Court decision. A phone book is not eligible for copyright in so much as it's a mechanical collection of facts. Copyright law in the U.S. requires there be some minimal original "creativity" in the work in order for it to be copyrightable.

Agreed ... and my short comment doesn't consider that. But, I don't think you'd disagree with me that the fashioning of an API requires creativity and is a work of authorship.

I believe that's Google and the EFF's argument. To their viewpoint, the API proper is a description of facts: "This library exposes this function, with these parameters in this order.". Moreover, there isn't an creativity in expressing those facts in the form they're in (the format of the header files and the like), because the form is either dictated mechanically by the need to interact with the compiler/interpreter, or is the "obvious" representation.

If the language itself requires a particular format, then the use of that format is not (in and of itself) authorship. The names of the functions, the arrangement of paragraphs/spacing in the code, the comments left by the author, etc. that are not specified by the language are.

Obviousness is for patent law, but need not be considered for copyright law. My 3-year-old can finger-paint with his dinner on the table, and that is an original work of authorship...

That said, I'm not sure how well that argument will fly. There seems to me to be a large amount of wiggle room in claiming "creative" contributions in the API. There's also an issue that the factual nature of the API is dependant on the creative choices in library implementation. (e.g. You could list facts about the characters and events in a copyrighted novel. These are facts, but if you list enough of them, you've basically replicated the novel.) You may be right in that API usage would better hang on fair use that copyrightability, but I think you're oversimplifying things by (condecendingly) saying "it's simple if you understand the law". (Especially as the ruling by the original Judge was that APIs weren't copyrightable.)

For your novel example: remakes of the storylines of books, movies, etc. have been made over and over. You can replicate the story of a book without infringing a copyright, and you can list as many facts about it as you like. You can find in reviews all the important facts of virtually any popular copyrighted work. You would not have replicated the novel: the authorship in the novel is in the presentation of the story in the particular words and pages used, not in the selection of names and events that happen in it. (Would you want to read a collection of facts rather than the book itself?) Trying to use the yardstick of whether it is more than a collection of facts to determine copyrightable subject matter isn't correct: use the yardstick of authorship instead. I can't really develop the concept in the space of a Slashdot reply, but I think that's pretty close.

Federal judges often have difficulty applying intellectual property law. They're often people that have a background in criminal or contract matters that don't really grasp the concepts. I think I get to be condescending ... and I'll be so one more time in saying that it does seem as though Oracle is trying to get out of copyright law what it couldn't out of patent law. (I'm recalling that this issue has arisen before in the caselaw but I don't remember where at the moment.)

BTW, fair use isn't really being argued here because the original trial didn't hinge on fair use (given that the Judge concluded that there wasn't any copyright to have a fair use exception to). In fact, the appellate court mentions that there are findings of fact still outstanding on

Is an API copyrightable? Of course it is. It's a work of authorship like any other written work.

Not all written works are copyrightable in the U.S. See the Feist v. Rural Supreme Court decision. A phone book is not eligible for copyright in so much as it's a mechanical collection of facts. Copyright law in the U.S. requires there be some minimal original "creativity" in the work in order for it to be copyrightable.

I believe that's Google and the EFF's argument. To their viewpoint, the API proper is a description of facts: "This library exposes this function, with these parameters in this order.". Moreover, there isn't an creativity in expressing those facts in the form they're in (the format of the header files and the like), because the form is either dictated mechanically by the need to interact with the compiler/interpreter, or is the "obvious" representation.

That said, I'm not sure how well that argument will fly. There seems to me to be a large amount of wiggle room in claiming "creative" contributions in the API. There's also an issue that the factual nature of the API is dependant on the creative choices in library implementation. (e.g. You could list facts about the characters and events in a copyrighted novel. These are facts, but if you list enough of them, you've basically replicated the novel.) You may be right in that API usage would better hang on fair use that copyrightability, but I think you're oversimplifying things by (condecendingly) saying "it's simple if you understand the law". (Especially as the ruling by the original Judge was that APIs weren't copyrightable.)

BTW, fair use isn't really being argued here because the original trial didn't hinge on fair use (given that the Judge concluded that there wasn't any copyright to have a fair use exception to). In fact, the appellate court mentions that there are findings of fact still outstanding on the fair use question, so it's inapproriate for an appeals court to rule on the issue. Instead, they remanded it back down to the trial court for an additional decision.

If you really pressed for it, you can demand (and will receive) a trial beginning within 30 days. However, you will not be able to mount an appropriate defense, since your attorneys won't be given any info/evidence until the last minute.

None of this really matters tho - 90% of cases end in plea bargains

The Government refers to one of the sides of the case Jewell v. NSA ( http://www.uscourts.gov/Multim... ). The plaintiffs (Jewell et al. as representatives for all US citizens unlawfully spied on) allege that the US Government as a whole by means of their Terrorist Surveillance Program, operated by the NSA and other agencies, violated the Constitution. As a practical matter, "The Government" here are the lawyers representing the US Government, likely from the Justice Department, and whoever else in the Executive branch assigned to work on and review the case.

You seem to have missed the entire point of my post, which was essentially "they don't have to stop this guy from using their trademark, they can simply license it to him under specific terms" which is actually what they tried to do. Also, here's my citation (PDF alert); where's yours?

Though they are technically in Washington DC, one would suspect that the Equal Protection Clause would say otherwise.

Maybe only those ignorant of statutory and case law. Trademarks derive from Congress' Commerce Clause power. They are not constitutionally protected. The Trademark statutes even specifically mention that trademarks that are disparaging to both those who are living or dead can be denied and cancelled.

There is even recent case law In Re Geller 13-1412. You can even read the ruling here: http://www.cafc.uscourts.gov/i... where there is also lots of other case law citations to back up their ruling.

Didn't the FCC vote on net neutrality some time back and get slapped down by the courts saying they didn't have the authority to impose this?

What the court ruled is that since broadband providers are not classified as "common carriers," the FCC can't impose net neutrality rules on them. The solution (or at least part of the solution, cf. my post in another, related discussion) is, of course, to reclassify ISPs and broadband providers as "common carriers." Well, good luck with that. Although lobbying dollars would be more useful than luck. I've got a jar full of silver change, if that helps.

Interesting, but it was only a three judge panel so I view it as a statistical fluke.

Unfortunately, the soap opera continues and, I expect, the petition to rehear the case en banc will be granted. The full court will then have to decide between following their "feelings", and likely being bench slapped by the SCOTUS, or following the Constitution. Sadly, I'm not hopeful they will do the right thing.

No matter which way the 9th ends up on this case, certainly the SCOTUS will be asked to weigh in and, if the full court ultimately rules against the plaintiff, I imagine cert will be granted as it's a fairly important and crisp legal question that the SCOTUS has not addressed and that seems to fly in the face of the Second Amendment's right to keep and bear arms. I am hopeful that SCOTUS will do the right thing.

Well, I'm still reading the court ruling regarding this case. In one place it says, short words and sentence fragments can't be copyrighted. So while a single method/function declaration of foo() is original and creative, it is too short to be copyrightable.

Oracle had argued that the 37 Java packages, comprising of 6000 method API declarations were copied verbatim by Google, should as whole be copyrightable because the taxonomy, structure etc of those package/class/method declarations combined are original, creative, etc. and mostly meet the requirements of copyrightability.

This is Google's fault for using the wrong arguments

Uh, did you just make that up? Do you do that often?

Read the ruling. Not only did Google make that argument, not only was it discussed in court, also the ruling spends several pages discussing it. Seriously, don't make yourself look like a moron. Read before typing. Start on page 28, which discusses that.

This ruling, it is stands, will be used by incumbents to shut down start-ups or open-source/non-spyware clones.

How can you even say that if the ruling on fair use hasn't been given yet? You don't even know if it is fair use. You don't know if the result on fair use will be so narrow it doesn't apply to other cases.

IF you have a legal argument about why you say is true, then I am interested in hearing it. Otherwise your opinion is meaningless. Read the ruling.

I strongly suggest you read the actual judgement, your arguments will be a lot more incisive.

Check out the ruling yourself, it's surprisingly readable and will make you smarter.

You might want to look into this even further. According to this even the dissenting judges agreed that once an aircraft is in the air it is a federal responsability.

The four dissenting Justices in City of Burbank did not view the Burbank
ordinance at issue as trespassing on the federal domain, but,speaking through Justice
Rehnquist, they made it plain that they shared the majority’s assessment of the
comprehensive preemptive impact of the FAA:

The 1958 Act [the FAA] was intended to consolidate in one agency in the
ExecutiveBranch the control over aviation that had previously been diffused
within that branch. The paramount concerns of Congress were to regulate
federallyall aspects of airsafety,see, e.g. 49U.S.C. 1422 and, once aircraft
were “in flight,” airspace management,see, e.g. 49 U.S.C. 1348(a).

So there was actually no dissention on wheter or not airspace is a federal responsability.

...

I see no cause for concern that the latest round of immigration will turn out any differently.

I do.

Now we don't expect immigrants to respect US culture or learn English, to the point of forcing students to remove shirts with US flags on them simply because such shirts would cause immigrant children or children of immigrants to resort to violence.

Holy moly what were they thinking when they let someone waive their fourth amendment rights? How could any of the sheep we've created be able to make such an important decision?

That is the thinking behind Smith v. Maryland (*) -- if you share information with a 3d party, you have no reasonable expectation of privacy (think about that the next time you talk to your doctor -- HIPPA be damned, the 3d party doctrine has already been applied to medical records (*)).

Smith was rooted in a set of facts where the police were investigating a single person for a specific crime in a situation where they could have definitely got a warrant.

However, by quote mining Smith v. Maryland for that 3d party doctrine, and divorcing that quote from its factual matrix, we end up with an interpretation where the NSA gets anything it wants with respect to information shared with a 3d party. This is true even if the factual basis is the complete antithesis of Smith -- the info the NSA collects is outside a specific investigation, unrelated to any specific person, and gathered in situations where a warrant most certainly would _not_ be granted.

This is how it works in the law. Take some fairly reasonable set of facts and enunciate a principal based on those. Next, divorce the principal from the facts. Profit (if you are fascist).

If you don't think this case will be quote mined, and this principal (that 3d party occupants can override the decision of a 1st party occupant) will become unhinged from its factual underpinnings, then applied to anyone anywhere anytime no matter how innocent -- you don't understand how law works in America. With this case, and your "hmmm -- makes sense" attitude -- you just got robbed, and you don't even know it.

* http://caselaw.lp.findlaw.com/...
** http://www.mdd.uscourts.gov/Op...

No, I think it was the commission themselves, not Congress, that classified them as an "information service" when they COULD have called them a "telecommunications service." However, it is within the FCC's power to reclassify them and they don't need approval from Congress.

The court told the FCC:

Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.

Basically, the court just told the FCC that if they want to treat them as common carriers, all they have to do is classify them properly.

Discovery can involve any material which might be relevant to a particular case with substantial restrictions to protect the identity of government informants and to prevent intimidation of witnesses. The prosecution is not the authority in determining which information may or may not be relevant. They must comply with any request for information the defense makes which the court agrees may lead to information relevant to the case. Any lawyer worth anything will ask for, and be entitled to, all the information the police gathered during their investigation. Of course, this also goes the other way in that the defense is required to comply with any requests made by the prosecution.

With regard to illegal wiretaps, if a defendant's civil rights were violated during the course of an investigation, that would certainly be relevant to the case. That is why they build a parallel case using legitimate means to present to the prosecutor.

I don't see any other outcome as reasonable. The one catch is going to be that I'm not sure that this will apply to judicial circuits.

Court Locator - Shows court boundaries.

Well, there's a Federal Judge who just ruled that they engaged in unconstitutional actions and there was a panel of hand-picked sympathizers who just came out with a report that they're breaking the law (nobody expected anything but whitewash -- when the totally owned lackeys still criticize the NSA, you know there's serious shit going on).

Here's Judge Leon's decision:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-48

The real meat starts at page 43, heading i. What is really wonderful to see, is how J. Leon eviscerates the Smith v. Maryland case, the case upon which all the NSA's masspionage is based. He distinguishes it and limits it to its facts -- it will be great to see that pillar of the Third Party Doctrine die like it deserves.

His verdict applies tothe entire country. His 'limited jurisdiction' only applies to the types of cases he can take, not to a specific region.

"In general, federal courts may decide cases that involve the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments. A case that raises such a "federal question" may be filed in federal court."

http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction.aspx

No, I did not assume. One does not need to assume reality.

Then already you need something beyond mere logic. You need evidence for your assumption.

I didn't say anything about size correlating with rationality. I'm talking about size and solvency.

Well, I did. But let's look at things in your limited sense.

In the past few years business bankruptcies in the US peaked just above 1% per year (in 2008) of businesses that employ workers while individual bankruptcies peaked about 0.5% per year (again in 2008). There's no real difference between how businesses as a whole and individuals fared in the recent economic crisis.

2008 was also the year that banks, investment firms, pension funds, etc were suffering from solvency issues that frankly affected the individual far less. There's no indication that size and solvency are correlated IMHO.

You must be blind, as the outcome of human history is all about centralization and pooling resources together to increase the group's chance of survival.

Really? So this is your "logic"? Argument from an appeal to obviousness is a fallacy. But then so is merely claiming stuff is true because you assert without evidence that it really happened.

the opinion linked in the summary is in regards to the deportation of a mr. gupta and has absolutely nothing to do with the case described in the summary.

Hon. B. Lynn Winmill: Chief District Judge 208-334-9145

courtesy: http://www.id.uscourts.gov/contactus.htm

Wrong. Cordless phones are fair game

Analog cellular phone calls are covered by a separate law (The Electronic Communications Privacy Act of 1986). It not only makes it illegal to record them, it makes it illegal to sell a radio that can receive them (or be easily modified to receive them). Thankfully all mobile phones are digital now. Unfortunately that law is still on the books.
Another court case conflicts with the Google ruling. Back when they were in popular use, the police sometimes recorded wireless phone calls from 46/49 MHz cordless phones (without a warrant). The police used these recordings in court to convict a drug dealer and the drug dealer argued that the communications were private. The courts ruled that they were not. Here is the court ruling from this case:

You are correct, and that is exactly how software is patented. The algorithm itself not patentable.

The only things that are patentable are processes, machines, manufactures, or compositions of matter.

People patent processes. People patent machines that run those processes. People patent manufactures that consist of computer-readable storage media containing instructions to run those processes.

See http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1301.Opinion.5-8-2013.1.PDF for a good review of the case law leading to these strange constructions and the current disagreement at the CAFC regarding whether or not this is all just draftman's art trying to patent an unpatentable algorithm.

This isn't a new area of law. It's been litigated thoroughly by the third-party auto parts industry, which routinely makes copies of auto parts. Some auto companies have applied for design patents on some body parts, but to get a design patent, there has to be a significant difference over any other existing object. There are maybe 400 auto part design patents a year, and design patents are only good for 14 years.

It's different for decorative objects. Those can be copyrighted. But functional parts, no.

Can a scan of a real-world object be copyrighted when the scanned object is not? Not in the US. See Meshwerks vs. Toyota. A scan is not a creative work. It doesn't matter that it takes effort to create, and work to clean up. It's still not a creative work. The court followed the same line of reasoning as in Bridgeman vs. Corel, which established that photos of public domain 2D pictures cannot be copyrighted. (Despite much grumbling from the museum community, that decision has held up. Wikipedia relies on that. The National Portrait Gallery (UK) once threatened to sue Wikipedia. Wikipedia didn't back down. The National Portrait Gallery did.) That decision in turn relied on the famous Supreme Court case Feist vs. Rural Telephone, which established that phone books are not copyrightable as a constitutional matter. "The threshold for originality is low, but it exists". That's why everybody has phone book data, map data, and similar databases now.

Once consumer-grade 3D printers get good enough that they're used for something more than turning out plastic game pieces, this problem will decrease.

The Andrew Wakefield Story: How Big Pharma and the UK Government Destroyed a Man to Save a Flawed Vaccine Program

Discredited Defamation: The Fallacious Case against Dr. Andrew Wakefield

Decision Awarding Damages to Ryan Mohabi 13 Dec 2012

Journal of Autism and Developmental Disorders March 2009;39(3):405-13

Text of full order is here: http://nysd.uscourts.gov/cases/show.php?db=special&id=300

To follow up and clarify:

The current statement FTA is that the 5th protects you only from being forced to decrypt *A* hard drive. If you did that, you'd be saying in effect "that's my hard drive".
In this case, the FBI says the figured out it was that guy's hard drive.
The judge in this case has to say "OK, they know it's your hard drive; you lose nothing by providing the password now."

So, if you accept the current legal state that decrypting *your* hard drive is not protected, there is no protection for this guy.

Personally, I would have taken the simple "I'm not going to say anything because it might get me into trouble" as sort of the point of the 5th amendment, but that's not how the courts currently see it.

For common people, the rule seems to be that the *act* of supplying the documents (that is the decryption itself) is protected.
But the documents themselves (that is the unencrypted data) *derived* from that act is NOT protected.
http://www.ca11.uscourts.gov/opinions/ops/201112268.pdf

But, if you're a lawyer or politico, then the supplying of documents and the content of those documents are BOTH protected.
http://www.oyez.org/cases/1990-1999/1999/1999_99_166

EFF would like to see it go this way, too (good luck!)
http://www.eweek.com/c/a/Security/EFF-Claims-Encrypted-Password-is-Protected-Under-5th-Amendment-560879/

Software patents are actually defined in terms of a physical object, the medium on which it's stored. They often include magic phrases like "a computer readable memory device having stored thereon a computer program".

IMHO, the problem isn't with the physicalness of the invention. After all, in the end it's really the insight and effort that you're trying to reward. The problem, I believe, is that the USPTO has done a terrible job of encouraging insight and effort by granting vague and obvious patents which contain neither, and the only "insight" was in how to game the patent office.

Judging what's insightful enough to merit a patent is tricky, but the patent trolls rely exclusively on patents where anybody "skilled in the art" would tell you that it was too trivial to bother writing down. The trolls rely on the fact that judges and juries are not skilled in the art, and are easily confused. Even in this case, the judge who came to the correct conclusion ends up making it (IMHO) needlessly complicated:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/2011-1009.Opinion.1-17-2013.1.PDF

He explicitly makes "obviousness" a matter of law, i.e. a thing defined by the details of previous cases, rather than the universal opinion of those who would have done precisely the same thing if presented with the same problem.

No offense but you're entire post was anecdotal. I've dealt with dozens of people looking to do the same thing and its never worked out for them.

My experience was anecdotal, but there is plenty of statistics that back up that most bankruptcies are quite easy and almost everything is dischargeable.

According to uscorts.gov the average bankruptcy has $115k in assets and $211k in liabilities. $202,361 of that debt is discharged on average, or almost 96%. That means in your average bankruptcy, someone who owes $211k will still owe $9000 by the end of the bankruptcy. That $9k is usually student loans, domestic support obligations, and taxes.

People still lose any assets that they have significant amount of equity in, such as a house or car. But you can always keep a house or car if you don't have too much equity (less than $30k in your home equity for a couple in IL, $100k in CA).

If Mr. Thomas "Editor-at-Large" Claburn wants to claim he's doing investigative journalism, he has a long way to go before he's in the same league as Edward R. Murrow, I.F. Stone (The Life and Times of Rebel Journalist) I.F. Stone, or Si Hersh. Granted, the issues here don't seem like they have the same importance, but he does have a point.

If states see fit to argue successfully in federal court that their citizen's rights are impinged upon by a multi-national corporation, you might be tempted to believe that it would be in all our best interest to have the opportunity to understand how and why the decision was reached as well as to perform the public service of monitoring the offender's compliance with the orders of the court. We have certainly seen this play out in the context of "sex offenders." Why not corporate monopolists?

The legal standard used for sealing federal court records might provide some direction. Or perhaps it could and should be argued that in any case involving of a company with the size, power and reach of Microsoft, particularly with respect to it's opportunity to do harm in the scope of its control over a product like Windows which has nearly monopolistic market share and ubiquitous effects on the citizenry at large, the public has a right to know and an interest in the outcome of the case as well as the judgment of the court and the terms any settlement.

On the other hand, you might just as well believe, as Mitt Romney does, that Google and Microsoft deserve to be treated just like people... oh, wait... wouldn't that imply that since they have been shown to be utterly disrespectful of any reasonable expectation of privacy, along with your ISP, your POTS and wireless telecomm providers and your local police department, they should be listed and tracked on a serial offenders list? And they should be required to update government with any change of address? (You'll just have to use the NYSE or Lexis/Nexis.)

Sigh... It's too overwhelming. Even global commerce just isn't that important. I mean, how is it that any of the investment banks that nearly brought the world's system of economic exchange to and end can settle any case with the federal government, have the terms of deal sealed and avoid admitting any wrong doing? I guess we'll just never know...

-- Time to put on your critical thinking caps kiddies!! --