First Disney sponsors Hollings bill. Then Disney does this to SonicBlue users.BOYCOTT DISNEY. Don't buy Disney products. Don't go to DisneyWorld, Don't go to Disney flicks.
The above is not "off-topic" as it was so moderated. In fact, it is probably one of the more intelligent posts that we will see.
Capitolism has nothing to do with business people who lie and cheat. Just beacuse some people in the industry cheat like dogs doesn't mean that it is right. This sounds like a child's argument -- Yes Mom, I took the candy from the jar, but so did Jeff and Mike; you can't punish me, it'd be unfair. Pure bullshit I tell you.
you just have to know how to read it. Note that the last item on the line is "Needs Work" not "poor" or "horrible". The survey to me is quite clear -- there is only 3% of the people (those who choose "Needs Work") who have any clue about science. The rest have not had enough education in science to know that one's scientific understanding always "Needs Work".
I can see the results of this paper clearly. People tend to associate with people at their level; thus, they tend to think of themselves as "average" or even "above average" no matter where they are in actual relation to the general population. Around my friends, for instance, I'm clearly _below average_ and I know it.
From what I gather, using Hydrogen would be equivalent to having batteries. We could then make hydrogen from all sorts of fuels, such as coal, gas, nuclear, wind, ethanol, corn or even solar? If this is ineed true, then we should jump on this technology like a hot potato. This may give us the energy *flexibility* we will need in 10-15 years. It may be in 20 years "microwave" power from the sun or some other strange technology may power our vehicles... without requiring a huge retooling of our consumption and distribution system.
Many government grants (SBA,etc.) are there only to encourage innovation, and the government does not require any licensure... in fact they want you to sell what you've built and make a business around it. I have no problem in GPLing software and then asking microsoft to pay $$$ if they want to use it within Windows.
I think the most important part is that the company maintain a copy of each CD that was made into an MP3. In other words, you can put your MP3 on our server, but you must give the CD to our corporate librarian to file with the rest of the "licenses".
This bill talks about what could happen (massive digital "theft") if broadband becomes ubiquitious. The discussion on capitol hill, Feb 28 failed to talk about what sort of good things could happen. For example, broadband may allow for smaller movie companies to entire the market as the distribution channel is much more free. Smaller movie shops may do a better job of meeting demand for movies than a few big movie shops; in fact, this is what Adam Smith's theories are all about. The bill is written largely out of fear of the future, fear for what could happen rather than what will happen.
What is interesting is that even in the face of Napster, sales of CDs went UP not DOWN. Thus, the increased freedom of the internet actually produced more revenue (perhaps people discovering CDs that they would have never tried) than less. Certainly there may have been some theft, but overall, the benifits far outweighed the risks and the music industry as a whole has profited smartly. What makes the movie industry think things will be any different for them? It is perhaps far more likely that movie sales go up with broadband, not down.
We should just sit back and watch what happenes, if massive theft starts to emerge then we can take steps then. As for the arguemnt that broadband won't emerge without the movie industry, this is just false. Broadband will emerge, it may just take a bit longer. But if the big movie shops doesn't want to be on the boradband wagon, I'm sure the smaller shops will gladly take their place.
I was listening to the Feb 28 congressional hearing, and what struck me huge was a representative from one of the movie studios (or an movie industry representative) talk about how only 1 in 100 movies turns a profit and how they need to protect that one movie and use it to generate enough revenue to cover all of their flops. I was amazed. As a small business owner if I had a 1 in 100 success rate, I'd be out of business. Perhaps the movie industry is so innefficient that it really does need a shake-up. Perhaps a world where broad band allows mom&pop shops to compete could offer more consumer choice and produce better movies?
This here is government protectionism at its very worst. It is protecting big, very wealthy business from small, hard working small film shops.
We've seen some pretty amazing technology advances lately, in fact, I have a friend who with a $1,500 viedo camera (cheap) is making a very high quality movie with his friends in their garage. Within a few more years we could be bombarded with more digital arts than we could possibly imagine today. The barrier to entry for my friend is the distribution channel. With the upcoming broadband very small buget movies like his will become more or less commonplace. With the RIAA out-of-the-way these small mom&pop film producers will truely be able to show their wares!
A bill like this one will hurt my friend. First, he will probably have to go through all kinds of hoops to get his movie "protected" so that he can release it. Also, the equipment he uses will no longer be "consumer" equipment and thus will not be commodiy and thus will be sold at a much higher price... or even unavailable without specific agreements. This could be used to ban small mom&pop shops from the industry. Second, it will serve limit what can or cannot be shown on broadband. Most likely only a few broad band players will be in the market, and rather than risk lawsuit they will only allow "proven", aka "RIAA" companies to distribute movies. Thus, the entire boradband distribution channel could just dry up, once again, leaving the RIAA with the keys to the distribution market.
if you cave in or lose a lawsuit then nobody will loan you ANYTHING - you probably will have trouble getting an apartment, non-pre-paid cell phone or even a job or insurance.
Settling out-of-court usually does not involve your credit report... only judgements against you. Thus, greater risk if you actually try to fight a stupid case...
This software assumes that the owner of the computer (who installs the software) owns the right to the bandwith. In some places (commercial offices and schools/universities) this assumption isn't right or is suspect. I would bet that these fellas may have a nice law-suit on their hands (can you say preliminary injunction) by large corporations or universities who stand to loose alot of bandwith once this service is turned on. Furthermore, I bet some DSL/Cable agreements have anti-server clauses. This software would cause the user to violate their clauses and potentially disconnect them with fines from their ISP. All-in-all, it's bad business, bad karma, and it'll catch up to them.
The only thing about copyright, and hence fair use indirectly, is in section eight which reads: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
This article in the constitution does not grant people any "natural right ownership" of their inventions and writings... in fact, it it only grants "exclusive right" for a limited time in such a manner as to promote the progress of science and the useful arts. If time limits and fair use doctrine wasn't there in the law, then copyright would fail to pass constitutional muster.
There's a lesson that everyone should have learned by now: Microsoft tells lies.
Hopefully while we rounding up all of the ENRON thieves we can toss in a few of the Microsoft execs who are also guilty of perjury.
freedom to innovate indeed
I have the domain "freedomtoinnovate.net" where should it be parked? Right now it's at EFF... a better site describing Microsoft wrongs would be better... no?
Competition = good. Government = bad. Competition/government = ???
The problem is that people assume Commercial == Competition and Non-Commercial == Monopoly. Quite clearly many commerical markets are very concentrated, especially utility markets where there are huge economies of scale. In this case, making the system commercial doesn't give competition... where making it public might. Why? Beacuse the government owned entity can control the singleton and have corporations "bid" for sub-contracts to provide the necessary services. Thus, we have internal competition rather than external competition.
Anyway, as for the dicotomy between democracy vs capitalism they are othogonal but must be in ballence. The goal of the democracy is to provide the framework for fair competition within the capitalistic markets; and the goal of capitalisim is to provide goods and services to support the people of the democracy. Both are there to serve the public good in different ways. And it is bad when one or the other is stronger. IMHO, all permanent monopolies should be owned and controlled by the government (aka in a democractic way) and all non-monopolies should be opened for competition. Now, opening monopolies for commercial ownership is just bass-ackwards.
Perhaps a search on "scientology" should return a message like: Due to threatened lawsuits via the DMCA and to deal with all parties in an even-handed manner Google has removed all searches with the keyword "scientology".
Sen Kerry is a Democrat; and Democrats are backed very heavily (a bit more than the Republicans, especialy in terms of percentage) by Big Media. Thus, I doubt you'll get far.
An alternative approach is to talk about this bill as "pork barrel" legislation giving government assistance to "big media" at the expense of all of those smaller shops. In the conference the representative from the MPAA said that for every block buster (where we make money) we take a loss on 100s of flops. Interesting. This means that the MPAA is very innefficient... if i had a 1-to-100 ratio in my small business I'd be bankrupt. Also, in the Feb 28 committee hearing the MPAA talked about all the jobs that would be "lost" if their rights weren't protected. What makes them think that smaller movie companies wouldn't fill in to take more marketshare? With a 100-to-1 success rate, I bet a bunch of smaller companies could do much better, no?
Frame this bill as RIAA subsidy (aka pork barrel)
on
SSSCA Introduced in Senate
·
· Score: 3, Interesting
(what I sent to a select few congress people)
I am writing regarding Sen Holling's SSSCA and request your attention since I am a D.C. resident who does not have a voting senator. I listened to the hearings on this bill and was not happy with the one-sided nature of the discussion. I'd like to take time to point out a few flaws in the argument.
First, the bill is to require specific "security" measures in personal computers and other electronic devices to prevent copying of materials, such as music, videos, books, etc. We don't require such "security" measures for handguns, which can kill people... why have such measures on electronic media which educate people?
Second, the witnesses to the hearings were all large corporations and "common folk" or people representing consumers were not present. Sen Hollings didn't even attempt to discover what potential problems his legislation may cause, nor did he question some of the (rather absurd) testimony by the Recording Industry. He could have included people such as Lawerence Lessig, for example. But he didn't. This is so clearly legislation by the corporation, for the corporation. The public had no voice.
Third, it talked as if large number of people would violate the law if they didn't enact the measure. The discussion failed to take into account that _most_ reasonable people follow the law... if they think the law is fair. If there is a bulk of illicit copying going on, it's probably a sign that the laws regarding copyright may not be fair. Indeed, those resonable people who would normally speak out about injustice are privately pleased by and encourage illicit copying. Why? Beacuse Copyright law as it stands now is questionably constituional (Eldrige vs Reno). So, why are we moving so quickly when copyright itself (namely the extensions and massive protection the recording industry enjoys) is under question?
Fourth, a large part of the testimony was about how the Recording Industry is having a hard time making a profit (despite the increasing profits despite the illicit copying). What struck me as amazing is that the RI admitted that for every very successful movie, there are 100s of them that are not successful. As a business person who owns my small business, I'd be bankrupt if I had such a high failure rate. So, it seems that the RI wants extra monopoly protection (via copyright law and "security" measures) so that they can continue being innefficient. If I was on the committee, I'd send them back to their drawing board... perhaps there entire industry could use a shakeup. With new digital cameras, small productions are becoming more and more prevalent. Perhaps we don't need a big Recording Industry anymore?
Lastly, the whole legislation seems premature, largely based on speculation. Everything works "ok" now... why mess with the dial? It could come out much much worse if we do. Why not wait till the RI comes forth with "massively decliining profits" (which I doubt will happen) and then ask if small recording groups have filled in the hole? If small production facilities emerge, this could mean _more_ variety, _more_ arts, and _more_ jobs (taxes)... not less jobs as described by the recording industry.
This has nothing to do with the doctrine of promissory estoppel. As the name implies, promissory estoppel requires a _promise_. Silence is not the same as a promise. Only under limited circumanstances will a court hold that failure to enforce a right amounts to a total waiver of that right. The scenario you pose is not such a circumstance.
Sorry for not being clear. Many times a direct manager will make remarks indicating that outside work (especially open source work) is perfectly OK. They do this to keep up morale and they know that professional involvment like this is a good thing. Thus, the manager will make an unwritten policy (via private talks in person) that is directly against the work-for-hire agreement. Then, when things go sour, and upper management finds out, or the lawyers/venture capitalist get into the picture the story changes. The middle manager lies about their promise...
I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
Since no middle manager is going to admit to making the verbal promise (or it's their job) the employee is left hanging. A resonable judge will understand this situation and use the facts as a guide: (a) the manager knew that the employee was doing open source work; (b) the manager didn't do anything in writing to confront the employee about this fact (turns a blind eye). If these are the facts, then I'd say the employee has a good claim that verbal statements were made in private.
As for Silence, this is _exactly_ what the doctine is all about, no? If the agreement was verbal and both parties agreed that there was an agremment you don't need this doctrine, do you? The doctine is for verbal agreements which one party claims didn't happen. Then the judge has to figure out if it is resonable to assume that the verbal agreement did actually occur.
But then again, I'm not a lawyer... perhaps you are. For other info on Promissory Estopple, see Google, in particular Bus477 notes which say:
Promissory estoppel
A doctrine in which a non contractual promise may be made enforceable to avoid an injustice. Acceptable alternative ways of describing promissory estoppel are:
* A doctrine which arises when injustice can be avoided only by enforcement of a non enforceable promise.
* Promissory estoppel is used where, although there may not otherwise be a enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.
* Promissory estoppel is used to enforce charitable gift pledges where the charity relies on them.
Unfortunately, for us Electrical/Computer Engineers, there is no way around that. They simply won't hire you. Sucks, but that's how it works.
You can cross off entire paragraphs. I've done it... many times. In one case they told me that a particular clause wasn't enforcable, I smiled and said "Great, then we can remove it.". In another case, I asked them to clarify what the contract meant... and we wrote in the "clarification", which was very limiting and granted me the exceptions that I required.
In general, if you are doing open source software that is not directly related to your work; you are seen as someone with initiative... and good employers should encourage this sort of professional involvement in your field. If they try to "own you" and not let you be a "professional" then call 'em on it. They want a professional, a professional does these sorts of things.
If he was clearly doing these things in public and his superiors _knew_ that he was doing this stuff and doing it with a GPL, then the employer may not be able to retroactively re-claim copyright. If they confronted him (in writing) *as soon as they found out* then his license to us is invalid, and people should refrain from using the code he licensed to us under the GPL. *sighs*
Slashdot Mirror
. A key part of having a patent is defending it. If Adobe fails to defend their patents, they'll lose them.
Bzzzt. Try again. This is true for Trademarks but not Patents or Copyright.
First Disney sponsors Hollings bill. Then Disney does this to SonicBlue users.BOYCOTT DISNEY.
Don't buy Disney products. Don't go to DisneyWorld, Don't go to Disney flicks.
The above is not "off-topic" as it was so moderated. In fact, it is probably one of the more intelligent posts that we will see.
This is capitolism after all.
Capitolism has nothing to do with business people who lie and cheat. Just beacuse some people in the industry cheat like dogs doesn't mean that it is right. This sounds like a child's argument -- Yes Mom, I took the candy from the jar, but so did Jeff and Mike; you can't punish me, it'd be unfair. Pure bullshit I tell you.
you just have to know how to read it. Note that the last item on the line is "Needs Work" not "poor" or "horrible". The survey to me is quite clear -- there is only 3% of the people (those who choose "Needs Work") who have any clue about science. The rest have not had enough education in science to know that one's scientific understanding always "Needs Work".
I can see the results of this paper clearly. People tend to associate with people at their level; thus, they tend to think of themselves as "average" or even "above average" no matter where they are in actual relation to the general population. Around my friends, for instance, I'm clearly _below average_ and I know it.
From what I gather, using Hydrogen would be equivalent to having batteries. We could then make hydrogen from all sorts of fuels, such as coal, gas, nuclear, wind, ethanol, corn or even solar? If this is ineed true, then we should jump on this technology like a hot potato. This may give us the energy *flexibility* we will need in 10-15 years. It may be in 20 years "microwave" power from the sun or some other strange technology may power our vehicles... without requiring a huge retooling of our consumption and distribution system.
Many government grants (SBA,etc.) are there only to encourage innovation, and the government does not require any licensure... in fact they want you to sell what you've built and make a business around it. I have no problem in GPLing software and then asking microsoft to pay $$$ if they want to use it within Windows.
It's much more complicated than that.
I think the most important part is that the company maintain a copy of each CD that was made into an MP3. In other words, you can put your MP3 on our server, but you must give the CD to our corporate librarian to file with the rest of the "licenses".
Clark
I've also been using Gandi to great success.
This bill talks about what could happen (massive digital "theft") if broadband becomes ubiquitious. The discussion on capitol hill, Feb 28 failed to talk about what sort of good things could happen. For example, broadband may allow for smaller movie companies to entire the market as the distribution channel is much more free. Smaller movie shops may do a better job of meeting demand for movies than a few big movie shops; in fact, this is what Adam Smith's theories are all about. The bill is written largely out of fear of the future, fear for what could happen rather than what will happen.
What is interesting is that even in the face of Napster, sales of CDs went UP not DOWN. Thus, the increased freedom of the internet actually produced more revenue (perhaps people discovering CDs that they would have never tried) than less. Certainly there may have been some theft, but overall, the benifits far outweighed the risks and the music industry as a whole has profited smartly. What makes the movie industry think things will be any different for them? It is perhaps far more likely that movie sales go up with broadband, not down.
We should just sit back and watch what happenes, if massive theft starts to emerge then we can take steps then. As for the arguemnt that broadband won't emerge without the movie industry, this is just false. Broadband will emerge, it may just take a bit longer. But if the big movie shops doesn't want to be on the boradband wagon, I'm sure the smaller shops will gladly take their place.
I was listening to the Feb 28 congressional hearing, and what struck me huge was a representative from one of the movie studios (or an movie industry representative) talk about how only 1 in 100 movies turns a profit and how they need to protect that one movie and use it to generate enough revenue to cover all of their flops. I was amazed. As a small business owner if I had a 1 in 100 success rate, I'd be out of business. Perhaps the movie industry is so innefficient that it really does need a shake-up. Perhaps a world where broad band allows mom&pop shops to compete could offer more consumer choice and produce better movies?
This here is government protectionism at its very worst. It is protecting big, very wealthy business from small, hard working small film shops.
We've seen some pretty amazing technology advances lately, in fact, I have a friend who with a $1,500 viedo camera (cheap) is making a very high quality movie with his friends in their garage. Within a few more years we could be bombarded with more digital arts than we could possibly imagine today. The barrier to entry for my friend is the distribution channel. With the upcoming broadband very small buget movies like his will become more or less commonplace. With the RIAA out-of-the-way these small mom&pop film producers will truely be able to show their wares!
A bill like this one will hurt my friend. First, he will probably have to go through all kinds of hoops to get his movie "protected" so that he can release it. Also, the equipment he uses will no longer be "consumer" equipment and thus will not be commodiy and thus will be sold at a much higher price... or even unavailable without specific agreements. This could be used to ban small mom&pop shops from the industry. Second, it will serve limit what can or cannot be shown on broadband. Most likely only a few broad band players will be in the market, and rather than risk lawsuit they will only allow "proven", aka "RIAA" companies to distribute movies. Thus, the entire boradband distribution channel could just dry up, once again, leaving the RIAA with the keys to the distribution market.
if you cave in or lose a lawsuit then nobody will loan you ANYTHING - you probably will have trouble getting an apartment, non-pre-paid cell phone or even a job or insurance.
Settling out-of-court usually does not involve your credit report... only judgements against you. Thus, greater risk if you actually try to fight a stupid case...
I guess the Article about SlashDot's new paid advertisement plan isn't a joke then.
This software assumes that the owner of the computer (who installs the software) owns the right to the bandwith. In some places (commercial offices and schools/universities) this assumption isn't right or is suspect. I would bet that these fellas may have a nice law-suit on their hands (can you say preliminary injunction) by large corporations or universities who stand to loose alot of bandwith once this service is turned on. Furthermore, I bet some DSL/Cable agreements have anti-server clauses. This software would cause the user to violate their clauses and potentially disconnect them with fines from their ISP. All-in-all, it's bad business, bad karma, and it'll catch up to them.
The only thing about copyright, and hence fair use indirectly, is in section eight which reads: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
This article in the constitution does not grant people any "natural right ownership" of their inventions and writings... in fact, it it only grants "exclusive right" for a limited time in such a manner as to promote the progress of science and the useful arts. If time limits and fair use doctrine wasn't there in the law, then copyright would fail to pass constitutional muster.
If you want to learn more about copyright, visit the Copyright's Commons.
There's a lesson that everyone should have learned by now: Microsoft tells lies.
Hopefully while we rounding up all of the ENRON thieves we can toss in a few of the Microsoft execs who are also guilty of perjury.
freedom to innovate indeed
I have the domain "freedomtoinnovate.net" where should it be parked? Right now it's at EFF... a better site describing Microsoft wrongs would be better... no?
Competition = good.
Government = bad.
Competition/government = ???
The problem is that people assume Commercial == Competition and Non-Commercial == Monopoly. Quite clearly many commerical markets are very concentrated, especially utility markets where there are huge economies of scale. In this case, making the system commercial doesn't give competition... where making it public might. Why? Beacuse the government owned entity can control the singleton and have corporations "bid" for sub-contracts to provide the necessary services. Thus, we have internal competition rather than external competition.
Anyway, as for the dicotomy between democracy vs capitalism they are othogonal but must be in ballence. The goal of the democracy is to provide the framework for fair competition within the capitalistic markets; and the goal of capitalisim is to provide goods and services to support the people of the democracy. Both are there to serve the public good in different ways. And it is bad when one or the other is stronger. IMHO, all permanent monopolies should be owned and controlled by the government (aka in a democractic way) and all non-monopolies should be opened for competition. Now, opening monopolies for commercial ownership is just bass-ackwards.
;) Clark
Perhaps a search on "scientology" should return a message like: Due to threatened lawsuits via the DMCA and to deal with all parties in an even-handed manner Google has removed all searches with the keyword "scientology".
Sen Kerry is a Democrat; and Democrats are backed very heavily (a bit more than the Republicans, especialy in terms of percentage) by Big Media. Thus, I doubt you'll get far.
An alternative approach is to talk about this bill as "pork barrel" legislation giving government assistance to "big media" at the expense of all of those smaller shops. In the conference the representative from the MPAA said that for every block buster (where we make money) we take a loss on 100s of flops. Interesting. This means that the MPAA is very innefficient... if i had a 1-to-100 ratio in my small business I'd be bankrupt. Also, in the Feb 28 committee hearing the MPAA talked about all the jobs that would be "lost" if their rights weren't protected. What makes them think that smaller movie companies wouldn't fill in to take more marketshare? With a 100-to-1 success rate, I bet a bunch of smaller companies could do much better, no?
(what I sent to a select few congress people)
... not less jobs as described by
I am writing regarding Sen Holling's SSSCA and request your attention
since I am a D.C. resident who does not have a voting senator. I
listened to the hearings on this bill and was not happy with the
one-sided nature of the discussion. I'd like to take time to point out
a few flaws in the argument.
First, the bill is to require specific "security" measures in personal
computers and other electronic devices to prevent copying of
materials, such as music, videos, books, etc. We don't require such
"security" measures for handguns, which can kill people... why have
such measures on electronic media which educate people?
Second, the witnesses to the hearings were all large corporations and
"common folk" or people representing consumers were not present. Sen
Hollings didn't even attempt to discover what potential problems his
legislation may cause, nor did he question some of the (rather absurd)
testimony by the Recording Industry. He could have included people
such as Lawerence Lessig, for example. But he didn't. This is so
clearly legislation by the corporation, for the corporation. The
public had no voice.
Third, it talked as if large number of people would violate the law if
they didn't enact the measure. The discussion failed to take into
account that _most_ reasonable people follow the law... if they think
the law is fair. If there is a bulk of illicit copying going on, it's
probably a sign that the laws regarding copyright may not be fair.
Indeed, those resonable people who would normally speak out about
injustice are privately pleased by and encourage illicit copying.
Why? Beacuse Copyright law as it stands now is questionably
constituional (Eldrige vs Reno). So, why are we moving so quickly
when copyright itself (namely the extensions and massive protection
the recording industry enjoys) is under question?
Fourth, a large part of the testimony was about how the Recording
Industry is having a hard time making a profit (despite the increasing
profits despite the illicit copying). What struck me as amazing is
that the RI admitted that for every very successful movie, there are
100s of them that are not successful. As a business person who owns
my small business, I'd be bankrupt if I had such a high failure rate.
So, it seems that the RI wants extra monopoly protection (via
copyright law and "security" measures) so that they can continue being
innefficient. If I was on the committee, I'd send them back to their
drawing board... perhaps there entire industry could use a shakeup.
With new digital cameras, small productions are becoming more and more
prevalent. Perhaps we don't need a big Recording Industry anymore?
Lastly, the whole legislation seems premature, largely based on
speculation. Everything works "ok" now... why mess with the dial? It
could come out much much worse if we do. Why not wait till the RI comes
forth with "massively decliining profits" (which I doubt will happen)
and then ask if small recording groups have filled in the hole? If
small production facilities emerge, this could mean _more_ variety,
_more_ arts, and _more_ jobs (taxes)
the recording industry.
This has nothing to do with the doctrine of promissory estoppel. As the name implies, promissory estoppel requires a _promise_. Silence is not the same as a promise. Only under limited circumanstances will a court hold that failure to enforce a right amounts to a total waiver of that right. The scenario you pose is not such a circumstance.
Sorry for not being clear. Many times a direct manager will make remarks indicating that outside work (especially open source work) is perfectly OK. They do this to keep up morale and they know that professional involvment like this is a good thing. Thus, the manager will make an unwritten policy (via private talks in person) that is directly against the work-for-hire agreement. Then, when things go sour, and upper management finds out, or the lawyers/venture capitalist get into the picture the story changes. The middle manager lies about their promise...
I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
Since no middle manager is going to admit to making the verbal promise (or it's their job) the employee is left hanging. A resonable judge will understand this situation and use the facts as a guide: (a) the manager knew that the employee was doing open source work; (b) the manager didn't do anything in writing to confront the employee about this fact (turns a blind eye). If these are the facts, then I'd say the employee has a good claim that verbal statements were made in private.
As for Silence, this is _exactly_ what the doctine is all about, no? If the agreement was verbal and both parties agreed that there was an agremment you don't need this doctrine, do you? The doctine is for verbal agreements which one party claims didn't happen. Then the judge has to figure out if it is resonable to assume that the verbal agreement did actually occur.
But then again, I'm not a lawyer... perhaps you are. For other info on Promissory Estopple, see Google, in particular Bus477 notes which say:
Promissory estoppel
A doctrine in which a non contractual promise may be made enforceable to avoid an injustice. Acceptable alternative ways of describing promissory estoppel are:
* A doctrine which arises when injustice can be avoided only by enforcement of a non enforceable promise.
* Promissory estoppel is used where, although there may not otherwise be a enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.
* Promissory estoppel is used to enforce charitable gift pledges where the charity relies on them.
Unfortunately, for us Electrical/Computer Engineers, there is no way around that. They simply won't hire you. Sucks, but that's how it works.
You can cross off entire paragraphs. I've done it... many times. In one case they told me that a particular clause wasn't enforcable, I smiled and said "Great, then we can remove it.". In another case, I asked them to clarify what the contract meant... and we wrote in the "clarification", which was very limiting and granted me the exceptions that I required.
In general, if you are doing open source software that is not directly related to your work; you are seen as someone with initiative... and good employers should encourage this sort of professional involvement in your field. If they try to "own you" and not let you be a "professional" then call 'em on it. They want a professional, a professional does these sorts of things.
If he was clearly doing these things in public and his superiors _knew_ that he was doing this stuff and doing it with a GPL, then the employer may not be able to retroactively re-claim copyright. If they confronted him (in writing) *as soon as they found out* then his license to us is invalid, and people should refrain from using the code he licensed to us under the GPL. *sighs*