Slashdot Mirror

Apparently, the PTO seems to want a bright-line test for patent-eligible business method versus a patent-ineligible mental process.

The discussion at oral argument might shed some light as to the reason why the CAFC voted sua sponte to take this matter en banc.

The following dialogue occurs at 15:20 of the mp3 file obtainable at: http://www.cafc.uscourts.gov/oralarguments/searchscript.asp (type Bilski for Caption)

Judge 1: The way in which the Board . . . presented Bilski to us was with this prayer for guidance. . . . Our examiners need guidance, we need to know how to deal with this situation . . . . Let me ask you this question, Is the opinion in In Re Comiskey enough? Can your examiners now move forward? Are you satisfied in dealing with business-method patents?

Solicitor: Not quite your honor. I say not quite because what I can foresee [are] future disputes and also potentially years of litigation over trying to find the dividing line between what would be a so-called patent-eligible business method versus a so-called patent-ineligible mental process. It just is going to create litigation issue that we dont think needs to be there.

Judge 2: So to cut to the chase, how would you [the Office] have reformulated the test . . . for purposes of explaining both Comiskey and then extrapolating to this case? Solicitor: I think what was just discussed here page 17 [of Comiskey slip opinion, see http://www.cafc.uscourts.gov/opinions/06-1286.pdf ] is a very fair recitation of what the law is where it says. . . . the Supreme Court has held that a claim reciting an algorithm or abstract idea can state statutory subject matter only if, as employed in the process, it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter.

Interesting stuff.

Apparently, the PTO seems to want a bright-line test for patent-eligible business method versus a patent-ineligible mental process.

The discussion at oral argument might shed some light as to the reason why the CAFC voted sua sponte to take this matter en banc.

The following dialogue occurs at 15:20 of the mp3 file obtainable at: http://www.cafc.uscourts.gov/oralarguments/searchscript.asp (type Bilski for Caption)

Judge 1: The way in which the Board . . . presented Bilski to us was with this prayer for guidance. . . . Our examiners need guidance, we need to know how to deal with this situation . . . . Let me ask you this question, Is the opinion in In Re Comiskey enough? Can your examiners now move forward? Are you satisfied in dealing with business-method patents?

Solicitor: Not quite your honor. I say not quite because what I can foresee [are] future disputes and also potentially years of litigation over trying to find the dividing line between what would be a so-called patent-eligible business method versus a so-called patent-ineligible mental process. It just is going to create litigation issue that we dont think needs to be there.

Judge 2: So to cut to the chase, how would you [the Office] have reformulated the test . . . for purposes of explaining both Comiskey and then extrapolating to this case? Solicitor: I think what was just discussed here page 17 [of Comiskey slip opinion, see http://www.cafc.uscourts.gov/opinions/06-1286.pdf ] is a very fair recitation of what the law is where it says. . . . the Supreme Court has held that a claim reciting an algorithm or abstract idea can state statutory subject matter only if, as employed in the process, it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter.

Interesting stuff.

The article didn't give details regarding what patents are at issue. I went to PACER and searched for patent cases involving Rembrandt filed since January 1, 2007. Most of the cases were filed by Rembrandt Technologies, although one of them was filed by Motorola seeking declaratory judgment that it was not infringing on any valid claims owned by Rembrandt Technologies.

The complaints were not all the same, but here is the list of patents cited in the complaints:

• 4,937,819
• 5,008,903
• 5,243,627
• 5,710,761
• 5,719,858
• 5,778,234
• 5,852,631
• 6,131,159
• 6,950,444

An important question is whether it really matters whether Rembrandt Technologies hired the original inventors or not, or whether Rembrandt Technologies practices the inventions or not. Rembrandt Technologies purchased the patents and is trying to license, not practice the inventions, thus it is considered to be a patent troll. But, would it have been better had the original patent holder had been the one to file these suits?

The rights involved would not be any different, just the entity able to enforce those rights. If the original patent holder was a competitor of the defendants, then there would be more incentive to file these suits to stop competitors from practicing the invention altogether, rather than trying to obtain licensing fees. At least with a third-party patent holder, there is an incentive for the patent holder to license the patents broadly.

One way of looking at suits and transactions is that the original patent holder capitalized on the potential value of enforcing the patents by transferring those enforcement rights to a buyer willing to take on the enforcement risks. There are plenty of risks involved in enforcing patents (e.g., the cost of attorneys fees or the possibility that an adverse construction of the patent rights will destroy their enforcement value). Whether the original patent holder or a third-party takes on those risks changes who takes on those risks, but doesn't change the scope of the patents themselves.

Heres a good article from the IEEE Computer Society entitled "Setting Boundaries at Borders: Reconciling Laptop Searches and Privacy." The article discusses United States v. Arnold Federal and other precedent. Arnold, a federal district court opinion on a motion to suppress evidence, appears to have come out the right way. To add my own 2 cents, why would the fear of contraband be more intense at the border when the speed of information transfer on the internet has made such concerns all but irrelevant?

Hint, it's implied.

No it isn't. Don't mistake wishful thinking for actual implication. You want it to say something, but it doesn't. You can't just say "oh, it's implied" without basis.

I'm willing to bet that somewhere in the user agreement, there's a provision that lets them do exactly this

and as i said upthread, comcast had a provision in their contract saying you couldn't sue them.

guess what the judges said about that. (PDF warning, though only 100k)

"The Sixth Circuit includes Kentucky, Michigan, Ohio, and Tennessee..."

http://www.ca6.uscourts.gov/internet/index.htm

Interestingly enough, the area the 6th covers is not exactly a bastion of liberal, Democratic, hedonistic, blue state America. I would have expected the sixth to find some way to uphold and validate 2257 not strike it down.

$1,000 is a lot of dough, but is it unreasonable?

Consider that:
  - a "mediation" device such as found at http://www.ss8.com/, that may cost you more than $100,000 a crack.
  - each request will require legal dept oversight, and support resources.
  - the cost of expensive software upgrades for vendors where lawful intercept is an upsell; or perhaps hardware upgrades that are only necessary to support lawful intercept functionality.
  - despite the great cost, the capabilities are not actually used very frequently.

Compare this with the data at http://www.uscourts.gov/library/wiretap.html

In 2006, there were a total of 1,839 authorized wiretaps, and only 1,714 that were actually installed.
Total number of days in operation is 68,380, which gives an average of roughly 40 days per wiretap.
Now consider that 1685 out of 1839 wiretap orders were for mobile devices (i.e. not Comcast).
This leaves about 139 other taps, some of which Comcast might be involved with.

At Comcast's rates, that would come up to 139 * $1,000 = $139,000. With a 40 day average, you're looking at 46 * $750 = $34,500 in additional month fees. This brings you to a total of $173,500 per year for nationwide US non-wiretap fees.

Comcast can't be recovering anything close to the full cost of their intercept expense from these fees.

Here's the unredacted opinion and here's the redacted opinion.

Here's the unredacted opinion and here's the redacted opinion.

Your estimate of Ms. Thomas' income is fairly close. In another article she indicated she makes $36,000 per year. She also has two children.

I don't know where your calculations on the loan payments came from but they aren't working out right for me (although they are relatively close).

Assuming the federal rate remained at 4.05% through the life of the loan, she would need to pay $27,035.05 per year. She has two children so the poverty level for her family is $17,170 per year. I'm not up to calculating her taxes so I'll just take your estimate that she can contribute $27,311.36 per year which means she could pay it off in just under ten years.

Ms. Thomas is 30 years old so she would have 25 years to save for retirement. Also note the interest rate is likely to climb. At 10%, it would take her 17 years. At 12.3% it would take her 70 years. And at 12.4% she would never be able to pay it. Finally, I believe there is a limit on how long a judgment is valid. I don't think any judgments are valid past 20 years. So she would have at least 15 years to save for retirement.

Assuming all disposable income is funneled to repaying her debt to society

This is a civil suit. She would be repaying her debt to the record labels.

In our federal system, when is a trial judge in Minnesota bound by an decision in New York?

If he is a federal judge, he looks first to appellate decisions within his own Circuit - the Eighth. U.S. Courts If he is a state judge, he looks first to appellate decisions within his own state.

But he is free to roll his own, subject only to the risk of reversal on appeal.

It is within bounds for a trial judge in Duluth to decide that the opinion of a trial judge in New York was correctly reasoned and that the opinion of the appellate court in New York was not.

The sate appellate courts of Minnesota can disagree with the state appellate courts of New York.

The Eighth Circuit Court of Appeals in St. Louis can - respectfully - disagree with the Second Circuit Court of Appeals in New York.

It is the responsibility of the U.S. Supreme Court to resolve such conflicts - if it believes that they are needlessly disruptive and of Constitutional significance.

But the Supremes take on only 100-200 cases a year.

In case anyone wants to read the opinion, it's here

it's somewhere in here pdf

12. Analysis. In conducting their good faith inquiry, courts typically review the record for evidence of various factors:

• a. Single asset case;
• b. Few unsecured creditors;
• c. No ongoing business or employees;
• d. Petition filed on eve of foreclosure;
• e. Two party dispute which can be resolved in pending state court action;
• f. No cash or income;
• g. No pressure from non-moving creditors;
• h. Previous bankruptcy petition;
• i. Prepetition conduct was improper;
• j. No possibility of reorganization;
• k. Debtor formed immediately prepetition; 8
• l. Debtor filed solely to create automatic stay; and
• m. Subjective intent of the debtor.

For only a couple of dollars, it is possible to review the current case information using the PACER electronic file access system. Interscope Record, et al., filed an amended complaint on August 23, 2007. The amended complaint goes beyond stating that the plaintiffs were "informed and believe that the Defendant" pirated their works:

12. Users of P2P networks who distribute files over a network can be identified by using Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for distribution can be captured by another user during a search or a file transfer. Users of P2P networks can be identified by their IP addresses because each computer or network device (such as a router) that connects to a P2P network must have a unique IP address within the Internet to deliver files from one computer or network device to another. Two computers cannot effectively function if they are connected to the Internet with the same IP address at the same time.

13. Plaintiffs identified an individual using LimeWire on the P2P network Gnutella at IP address 68.105.100.130 on October 2, 2005 at 05:21:57 distributing 330 audio files over the Internet. The Defendant was identified as the individual responsible for that IP address at that date and time. Exhibit A identifies the date and time of capture and a list of Copyrighted Recordings that Defendant has, without the permission or consent of Plaintiffs, downloaded and/or distributed to the public.

The plaintiffs had to serve the the defendant again (by mail), but was otherwise not inconvenienced in this suit. Denying a motion to enter default judgment is not the same as dismissing the case altogether. The order even said that the plaintiffs were granted leave to amend the complaint.

The Recording Industry vs The People blog makes too big a deal about the RIAA not disclosing the Interscope order in another case. This was a trial-level order. It doesn't create an interpretation of law that is binding on any other court (if even itself). Law briefs are already long enough without having to cite thousands (if not millions) of trial-level non-binding orders and decisions that show that other trial-judges might decide against the argument.

Not in a good long while.

Federal judges cannot be removed from court once they are appointed, as Article III explicitly prohibits the legislative and executive branches from doing those kinds of shenanigans.
----

~~~~

You'd lose that bet. Lufkin's in the Lufkin Division of the Eastern District of Texas.

> ...I'm guessing they no longer believe anti-trust to be an issue any longer.

Why not prove them wrong by letting the presiding judge know?

http://www.dcd.uscourts.gov/kotelly-bio.html

http://en.wikipedia.org/wiki/Colleen_Kollar-Kotell y

There's a reason I'm not a lawyer... Something to do with several years of law school, bar exams, that sort of thing.

Still, I found this reference to the DirectTV "Noerr Pennington" case.

The case puts weight, regarding the sham litigation exception, on both "objective baselessness", and "improper motive". Objective baselessness may be fairly easy to prove in Lindor, but I think "improper motive" would be a hard sell, normally.

Closer to the surface, though, I am doubtful that Noerr Pennington applies. Noerr Pennington (as near as I can tell) says, "you cannot abridge the right to petition the goverment", including the courts. However, the individual companies could still litigate separately without invoking anti-trust issues.

The DirectTV decision said - I think - that the company could send out its "we're going to sue" letters, even if it was wrong, without invoking RICO. As long as it didn't do so with malice. Which to me meant that extortion-via-lawsuit is defended. That is, "our suit may be provably wrong, but we have a right to sue you into the ground anyway."

Lindor may be the exception, though, if it's the case where the settlement center worker told her "we know we're wrong, but we're going to sue anyway". So many cases out there, I forget which one(s) that was...

http://www.cacd.uscourts.gov/CACD/Guestbook.nsf/Co mment?OpenForm

This is the only web-based contact method I could find- I wanted to email the judge directly. Perhaps I'll have to send a registered letter?

http://pview.findlaw.com/view/2365671_1?noconfirm= 0

So, the government is either allowed to make laws in this regard or they are not.

Wrong. They are allowed to make laws in this regard (restriction of speech) when it can be shown that there is a compelling interest to do so. They have tried, and on every single occasion failed utterly, to do so.

You can't say that it's OK to put age restrictions on purchasing arms, which is explicitly guaranteed by the Constitution by NAME, but not on video games, which are not mentioned.

I sodding well can. It goes back to the "compelling interest" bit again. And television isn't mentioned in the Constitution either, but good luck passing a law forbidding a minor from buying a season of The Sopranos.

And before you say "freedom of speech", the speech the founders were referring to was political speech, as in, you are allowed to criticize the government. Freedom of expression is not mentioned. For that matter, neither is freedom of commerce.

Try arguing in court that freedom of expression isn't protected by the First Amendment.

The only way a video game can considered free speech is if it's free, as in beer.

Wrong. Video games are protected as speech, period. Excerpts from linked document:

If the first amendment is versatile enough to "shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll," Hurley, 515 U.S. at 569, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence.

Whether we believe the advent of violent video games adds anything of value to society is irrelevant; guided by the first amendment, we are obliged to recognize that "they are as much entitled to the protection of free speech as the best of literature." See Winters, 333 U.S. at 510. We must therefore determine whether the County has advanced a constitutional justification for the ordinance's restrictions on speech.

In other words: 1) Yes, games are speech and 2)if the government wants to restrict them it has to prove that there is sufficient cause for that restriction. They haven't. Ever. Incidentally, your moronic claim that "freedom of expression isn't covered" is bulldozed here as well.

Also, here is what Judge Richard A. Posner said:

'Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low ... It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.'" Sounds to me like HE (speaking for the state) is making the final say, not the parents.

That's his personal opinion, wholly and obviously separate from the legal reasons for the ruling (which I note with no surprise you don't even attempt to refute). You're taking that one excerpt and acting like it's his entire basis for the ruling. That's like watching Gerard Butler kick a guy into a hole on a TV ad and then claiming you've seen 300.

Do you agree that the state should decide when my children can be exposed to violence?

Quit begging the question. None of these rulings mean that. They mean quite the opposite; that the state is explicity forbidden from making the decision. Yet again I remind you: the parent has the power

The key to this is that California law applies. "Under California law, a contract provision is unenforceable due to unconscionability only if it is both procedurally and substantively unconscionable." The "Discover Bank test" applies: "Under this three-part inquiry, courts are required to determine: (1) whether the agreement is " 'a consumer contract of adhesion' " drafted by a party that has superior bargaining power; (2) whether the agreement occurs " 'in a setting in which disputes between the contracting parties predictably involve small amounts of damages' "; and (3) whether " 'it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money.' (quoting Discover Bank, 36 Cal. 4th at 162-63)"

Arbitration clauses aren't being disallowed generally. But when, as the court puts it, "the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money", the courts can allow class action suits.

This is a routine decision based on California law; there are about a half dozen cases so far based on Discover Bank. Read the decision.

The 9th Circuit Court processed (the courts say "terminated") 13,424 cases in 2006. That's right, over thirteen thousand. Out of thirteen thousand, 22 cases were heard by the Supreme Court, and 19 were reversed. That is not a bad record.

Data here (choose 9th Circuit) and here (choose 2006).

Also, note that the appeals process is designed to overturn incorrect decisions. For an example of this, see the statistics at this page. Note the percentages of cases that are reversed or vacated for all courts.

The percentage of overturned cases should be higher for the Supreme Court, as they get to decide whether to review cases or not. This means they will mainly choose cases where they think they need to correct a bad decision, clarify a law, etc. So, having a high percentage of cases overturned by the Supreme Court means that the Supreme Court is doing its job well, not that the other courts are doing a bad job.

The 9th Circuit Court processed (the courts say "terminated") 13,424 cases in 2006. That's right, over thirteen thousand. Out of thirteen thousand, 22 cases were heard by the Supreme Court, and 19 were reversed. That is not a bad record.

Data here (choose 9th Circuit) and here (choose 2006).

Also, note that the appeals process is designed to overturn incorrect decisions. For an example of this, see the statistics at this page. Note the percentages of cases that are reversed or vacated for all courts.

The percentage of overturned cases should be higher for the Supreme Court, as they get to decide whether to review cases or not. This means they will mainly choose cases where they think they need to correct a bad decision, clarify a law, etc. So, having a high percentage of cases overturned by the Supreme Court means that the Supreme Court is doing its job well, not that the other courts are doing a bad job.

They basically state that the contact in question for this type of case must be a contract of adhesion, and they clearly define what that means. A contract of adhesion is defined as a contract between a party of greater bargaining power and a party of weaker power (ie, AT&T and a wireless subscriber), and the contract must be standardized for use with all equivalent parties of weaker power (ie, all wireless subscribers), and the presentation of that contract must be "take it or leave it" (ie, no chance to negotiate).

It is good to note that the ability to walk away from a contract does not change that the contract is a contract of adhesion, even if you accept that contract instead of walking away.

The court also adequately addresses the issue of marketplace alternatives, specifically stating that even if meaningful alternative services exist (ie, Verizon, Sprint, T-Mobile, etc), that this does not change the fact that the contract may be procedurally unconsionable (a "contract of adhesion" is also stated as being automatically procedurally unconsionable to some degree).

Note, for a contract or clause of a contract to be unenforceable, it has to be both substantively and procedurally unconsionable to enough of a degree as to be ruled unenforceable. Please read the court's decision and other documents to learn more about legal unconsionability.

On the issue of arbitration, the court seems to treat arbitration with respect, and cites several cases where arbitration was used and also lists some favorable reasons for people and companies to use arbitration. This is clearly not a case of the court dismissing arbitration -- this is a case where the members of the class who want to sue AT&T would be at a severe disadvantage if they were required to use individual arbitration. Note, AT&T stated that they did not want to use class arbitration to resolve the issue, they specifically wanted individual arbitration. The court actually presents opinions supporting class arbitration at one point in the decision.

This decision makes sense, and shows that terms that are included in contracts of adhesion are vulnerable to being ruled unenforceable. This is good news from the consumer standpoint, and does not weaken arbitration or consumer's rights in any way I can see.

I am not a lawyer. I just RTFA.

In short, this is exactly what you are looking for in terms of curtailing abuse by corporations.

The system is more than the President and Congress, it is also the Judiciary, and the courts are supposed to provide the check on their power. In this case, it appears to be working. Read the decision, you will be impressed. (And the 9th Circuit seems to be on track on this one, even including a URL in their decision that shows class arbitrations currently listed on the American Arbitration Association website!)

Link to the court's decision. (PDF)

Should the government have the power to compel access to the communication networks and records of a US company or US citizen without a warrant?

To be clear - and I know you know this, but I want to make it clear for others who may not understand - that's not what this addresses. This addresses the monitoring of the entirety of content of communication between parties outside of the United States. This has always been legal and does not require a warrant, never has, and never should.

But to answer your question: if you are speaking of information about records that define only start and end points of a communication, but NOT the content of the communication (e.g., telephone numbers dialed or calls received), such records constitute a "pen register", which does not constitute a search under the Fourth Amendment, and which therefore does not require a warrant (Smith v. Maryland, 442 US 735 (1979)). Similarly, the Ninth Circuit Court of Appeals, often cited as the most liberal appeals court, found that IP addresses visited and to/from addresses on emails (but again, not the content of the communication) constitutes a pen register and therefore does not require a warrant (US v. Forrester (2007)).

On this basis, no, I do not believe that such monitoring legally requires a warrant.

Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories. Take once again "The House of the Dead." The player is armed with a gun--most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds--these are all age-old themes of literature, and ones particularly appealing to the young. "The House of the Dead" is not distinguished literature. Neither, perhaps, is "The Night of the Living Dead," George A. Romero's famous zombie movie that was doubtless the inspiration for "The House of the Dead." Some games, such as "Dungeons and Dragons," have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids' popular culture. But it is not lightly to be suppressed.

Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, "Ultimate Mortal Kombat 3." A man and a woman are dressed in vaguely medieval costumes, and wield huge swords. The woman is very tall, very fierce, and wields her sword effortlessly. The man and the woman duel, and the man is killed. Another man appears--he is killed too. The woman wins all the duels. She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood. Of course, her success depends on the player's skill, and the fact that the player, whether male or female, has chosen to be the female fighter. (The player chooses which fighter to be.) But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. It thus has a message, even an "ideology," just as books and movies do.

This is a sound decision. There's a classic principle of English common law that says "an agreement to agree is not an agreement at all". A contract to agree to terms not yet defined is not an enforceable contract. This is standard contract law.

The actual decision says:

Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so. Union Pac. R.R. v. Chi., Milwaukee, St. Paul & Pac. R.R., 549 F.2d 114, 118 (9th Cir. 1976). This is because a revised contract is merely an offer and does not bind the parties until it is accepted. Matanuska Valley Farmers Cooperating Ass'n v. Monaghan, 188 F.2d 906, 909 (9th Cir. 1951). And generally "an offeree cannot actually assent to an offer unless he knows of its existence." Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts 4:13, at 365 (4th ed. 1990); see also Trimble v. N.Y. Life Ins. Co., 255 N.Y.S. 292, 297 (App. Div. 1932) ("An offer may not be accepted until it is made and brought to the attention of the one accepting."). Even if Douglas's continued use of Talk America's service could be considered assent, such assent can only be inferred after he received proper notice of the proposed changes.

Companies have been trying to get away with something that has no basis in law. Finally, someone sued on that issue, and won.

The Register points out that this is consistent with UK law. That's not surprising. This goes back to ancient common-law traditions. The Register also points out that the issue of whether terms can be changed when the consumer has an ongoing obligation to the seller (like a cell phone service agreement) has been argued in Britain and decided in favor of consumers.

The 9th Court's own tool for retriving court decisions includes the same clause they say can't be used:

If these Policies and Procedures change in a significant way, information regarding the changes will be posted on the PACER Service Center web site (pacer.psc.uscourts.gov). It is the acocunt holder's responsibility to check these Policies and Procedures regularly for changes.

https://pacer.psc.uscourts.gov/psco/cgi-bin/regfor m.pl

Atari v. JS&A concerned the sale of devices that make chip-to-chip copies for "backup" purposes, not chip-to-disk copies for emulation purposes. Backups fall under 117(a)(2), and the court in Atari found that 117(a)(2) does not cover chip-to-chip backups. The copies used in emulation, on the other hand, are not backups; they are an "adaptation ... created as an essential step in the utilization of the computer program in conjunction with a machine" per 117(a)(1). Compare Vault v. Quaid, 847 F.2d 255 (5th Cir. 1988), which the page on Patent Arcade mentions but does not analyze.

In addition, Atari happened in the Northern District of Illinois, which is within the 7th Circuit, and to my knowledge was not appealed; Vault happened in the 5th Circuit Court of Appeals. A split between federal circuits is prime material for a review by the Supreme Court.

It was not only the breakup order that was overturned on appeal, but also the ruling that bundling of IE with Windows constituted illegal "tying" (see http://pacer.cadc.uscourts.gov/common/opinions/200 106/00-5212a.txt). The DoJ then abandoned the tying claim, and attempts by a number of US states to continue with it were dismissed by the judge in the district court, Colleen Kollar-Kotelly: i.e. the DoJ gave up, and the states that didn't give up lost.

The fact that the tying claim was overturned is the fundamental reason why Microsoft couldn't be forced to remove IE from Windows, or barred from including other "middleware". Microsoft was found to have a legal monopoly in the x86 PC operating systems market, and was found guilty of abusing it, which is why it is required to allow "middleware" from other vendors to be installed and set to the default by PC vendors and end users. However, this is a much weaker restriction than would have been the case if Microsoft had not prevailed on the key issue of "tying".

As an aside, the fact that Jackson was unanimously condemned by the appeals court for blatant violations of judicial ethics does not inspire confidence in the validity of his ruling. If Jackson was unethical enough to violate basic principles of judicial ethics (apparently using unethical out-of-court communication to an extent greater than any other judge in history), and was stupid enough to do it in such a blatant way, why on earth should anyone assume that his ruling was not negatively affected by his stupidity and lack of ethics? Put another way, why should the ruling of a stupid and unethical judge be taken seriously at all?

Alba challenges the validity of computer surveillance that enabled the government to learn the to/from addresses of his e mail messages, the Internet protocol ("IP") addresses of the websites that he visited and the total volume of information transmitted to or from his account. We conclude that this surveillance was analogous to the use of a pen register that the Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), did not constitute a search for Fourth Amendment purposes. Moreover, whether or not the surveillance came within the scope of the then-applicable federal pen register statute, Alba is not entitled to the suppression of the evidence obtained through the surveillance because there is no statutory or other authority for such a remedy.

Note that the excuse for non-suppression is disengenious, as the judge should have been the remedy.

Also note that if e-mail addresses were obtained, that means that more than just the IP headers were being looked at. Packet inspection had to be done in order to obtain the e-mail addresses from within the packet.

This ruling effectively is a precedent for the illegal NSA spying.

Tech ignorance strikes again! : "Similarly,
when the government obtains the to/from addresses of a person's
e-mails or the IP addresses of websites visited, it does
not find out the contents of the messages or the particular
pages on the websites the person viewed. At best, the government
may make educated guesses about what was said in the
messages or viewed on the websites based on its knowledge
of the e-mail to/from addresses and IP addresses -- but this
is no different from speculation about the contents of a phone
conversation on the basis of the identity of the person or
entity that was dialed."

One can of course simply type the IP into a browser--or automate that into a script. Shazam: Instant content!

The FCC has absolutely no power to regulate nor any say at all in how software radio or television are implemented.

The FCC commisioners are deluding themselves, again, if they think Congress gave them the power to appoint monopolies.

They have already been slapped down once with regards to the DTV Redistribution Control flag and they're about to be slapped down again.

What's next, washing machines and clock radios?

http://pacer.cadc.uscourts.gov/docs/common/opinion s/200505/04-1037b.pdf

If the Foolish Child Commission can't remember the limits of their power, We the People will be more than happy to remind them, spank them and send them to their 'time-out' corner once again.

Here's how I submitted the story a few days ago:

At Volokh, Professor Orin Kerr notes a 6th circuit decision (pdf) about whether the 4th Amendment's expectation of privacy applied to Yahoo emails. Yes. Wired has more. EFF's friend of the court brief may have helped.
--
Meanwhile Dr. Kerr has more on the case, here.

http://www.uscourts.gov/courtlinks/
The 6th Circuit Court encompasses Kentucky, Michigan, Ohio and Tennessee

The other circuits may look at this decision as part of their deliberations,
but it isn't binding anywhere except those four states.

Let me know when it
A) gets to the Supreme Court or
B) becomes Federal Law
then I'll get excited

Its almost the same situation with guy who got permission from a land owner to sit on the property and video tape police. The judge considered it unlawful seizer, and he won the case. Mainly because video taping is a legitimate way of gathering evidence. The full case is at http://www.paed.uscourts.gov/documents/opinions/05 D0847P.pdf That case was federal, I have no idea about state laws but in theory it could be appealed and possibly get the federal court involved.

A lot of media sources and technology companies are taking this to the extreme because a) scary news sells more ad space and b) scary news sells more servers.
Here's a link to the original document: http://www.uscourts.gov/rules/Reports/ST09-2005.pd f [PDF file]
Focus on pages 24-36 of the pdf, which discusses the background of the new rules, and 103-240 which include the actual regulations. The new e-discovery rules do not require everyone to keep copies of everything forever.

Note that the full 332 page document includes multiple topics, only one of which is e-discovery.
And in closing, IANAL.

the opinion is here in pdf. here online commentary includes volokh

Here. 50 pages but a good read at least for me.

Note that slashdotters are always complaining about judges not knowing anything about computers, but this court has a very good understanding of the relevant technical issues. They are fully aware of which servers are transmitting what data even when this is not immediately apparent to amateur users, and base part of their judgement on that basis.

But judges are smart guys and many of them understand exactly what is going on. Look at this recent appeals court ruling for example (about a pornography website suing Google for making their images available through image search). Can you point to a single technically inaccurate statement in the entire 50-page ruling? (The only thing that caught my eye is referring to HTML markup as "instructions", but even that is not really inaccurate in context, simply out of sync with usual jargon).

I think you mean censure

Way more interesting than another bash MS case is the link to the US Cort of Appeals setting up their own wiki. Now we will be seeing reports that the rate of convictions has tripled over the last decade.

The ruling is here.

Oh, and I'm sure you're ALL FOR the ruling by the 9th Circuit Court of Appeals that allows laws requiring proof of citizenship prior to registering to vote. Right? Or is that disenfranchisement, too?