"4" means that "the defamatory communication" was published, that is, communicated to a third party. (Basically if A and B are in a room, without any third person, statements there can't be defamatory. There has to be someone else there.)
The users of the software qualify as third parties, so your analysis is not incorrect.
Cost is only one basis for establishing prices. Cost is most appropriate for commodities with many providers selling essentially interchangable goods. To stay in business requires charging more than the cost, but the competitors keep you from getting very far about it.
When you have a monopoly of some kind, there are no competitors to keep you near your cost. You can now charge near what the value to the buyer is. Although there may be substitutes to keep you more or less in line, the fact that if someone wants your thing they have to pay the price for it gives you a power that does not exist for commodities.
Copyright is a kind of monopoly. If you don't want to pay the price they ask, don't buy. Don't complain that the 'cost' should be defining the price though. Go get your substitute.
The term for the really unhappy here is "deadweight loss." These are the people who do not get served, but could be, with the same net income to the seller. It is sad that markets do not work in ways that maximize distribution for the same profit for the seller, but the nature of digital copyright isn't at fault for that.
Ha, the measure required spending money. In Holland, Michigan, the cheapest town in America, that is usually a dead-bang loser. Seriously though, employers love Holland because it has a large body of people with good high school educations. People who can be good workers, and good members of a community. Not everyone gets college degrees and graduate degrees. I think the people there just understood the issues, including the futility of trying to set the Internet in stone. After all, these people did elect Phil Tanis mayor at one point, right? How knee-jerk conservative can they be, electing a 22-23 year old as mayor? I just think the out-of-town proponents just screwed up their market research. There has to be a community in America where that initiative is a winner, just not Holland.
Based on years with USENET, IRC and MUDs, I'd say that sorting out "voices" from "mere" text is something that a lot of us have been doing on line for a long time.
As a MUD admin, I was often able to tell when someone "other" than the owner of a character was using it. Female admins were a lot better than me at it, actually. Once you start to put together a mental "image" of who this disembodied voice is, it is amazing how quickly someone else assuming the role "clashes" with the picture that formed in your mind.
The science here comes in being able to just yank other text and categorize it, and scale that power up enormously. Thus, people like our author here have stunningly impressive powers over those that they do not know personally.
However, don't believe that if your boss reads something you wrote, he might not add 1 and 1 to get two. When it is familiar with things, the human mind is a powerful associative tool. Do you really think you could fool your mother? Or brother? The Unabomber, as smart as he was, couldn't. He did get by the experts for a long time though.
From what I can tell, the law takes the present licenses that come with software and pushes their limits some, but not unrecognizably. If you read the licenses that are distributed now, they are darn harsh creatures. Come to think of it, mandatory arbitration (like they pick the arbitraror) for hardware isn't exactly peaches and cream either.
The original spirit of the Uniform Commerical Code was to codify everyday commercial practices in effect, sometimes for centuries, through custom and common law. Also in the spirit of the UCC, is that it is written mostly for business transactions, and is not/was never intended to be a consumer protection code.
A long, long fight over the part of the UCC that deals with the purchases of goods (think computer, camera, food, grain, etc) has been to make that code "consumer-protective." After decades, it has just getting to be more so. I am not in the least surprised that the first cut at the "information" dimension follows the old pattern.
I think the reason this has come to pass is that consumers really don't care about the licenses they have now. They never read them, and they blatantly abuse them. Consumers copy software, use it on multiple computers, etc, etc, all against the terms of their licenses. Enforcement is practially nil. If a significant player in the market, perhaps an abusive Redmond, WA company, were to start pulling stunts like remotely switching software off, triggering your online banking software to pay for the extra copies you made, erasing your HD under the terms of the license or what not, the law would change QUICK.
It's a shame that we will have to go through that firestorm once to get something reasonable. I can't see the uniform state law people getting a good law out the first time around.
The Dutch-American roots of Holland Michigan are usually more frugal than outright politically conservative. Why would the "Republican" population of the city approve this lawsuit-bait? Have they been told that this is going to be a $4-20 or more cost per citizen?
I don't think it is clear that this is a winner in the courts. Government does not have to provide material, such as artwork to the citizenry. When it does so though, it cannot pick and choose the content based on a message. (Unless of course, it is a governmental message, such as the anti-drug ad campaign, or armed forces recruiting ads.) The government can't just run around squelching viewpoints, whether in a public square or on the Internet. It just doesn't have to give you a voice. (Like provide an Internet hookup in the library.)
My bet is that the restriction passes, is challenged in court, and Holland, MI gives up early in the fight.
Just because locks can be picked doesn't mean that you don't try to catch burglars. Sure, you encourage people to get deadbolt locks, keep the entrance lit, and have neighbors look out for each other and call the police if they see something suspicious. Duh.
Similarly, nobody says that burglarizing people's homes and businesses is ok if the locks were weak. So, yeah, if you get hit, you have yourself to blame to a certain extent, but that doesn't make what the burglar did OK. Insurance companies should (maybe do?) make routine computer security a deduction on policies.
Janet Reno's job isn't about deterrence only, it is also about punishment/vengance. What's she doing? Coordinating across enforcers. What is the problem with that? It's the cops' job to protect the weak and the stupid. The strong and the smart most often won't need them.
Currently physics departments turn out many more Ph.D. physicists than there are jobs tailored for such a background. On the other hand, the general public's literacy in science in general, and physics in particular is quite low. The pair of these problems would seem to pose a Gordian knot of a problem -- how do we cut through it? Excessive production of Ph.D physicists seems an inefficient way to improve public awareness and scientific literacy.
You know, when adults cut a deal, they should hold up their end.
The whole idea that someone would drop that because Microsoft was at the other end is just sick. I don't steal from my friends, and I don't steal from my enemies either. I don't do things like that because they're wrong.
I guess nobody here ever paid for shareware either. I thought this was supposed to be a community that was reasonable even without government intervention. Maybe I was wrong. *sigh*
A database can be protected by copyright if there is sufficient originality in the "selection and arrangement" of the contents. As pointed out earlier, it is important to remember that the contents can be separately protected. Think of it this way: A book of quotations can be protected as a compilation. Each of the quotations within it may also be protected by copyright in the quoted work. There are many useful databases which cannot be protected by copyright, usually databases that are made up of facts, and those facts are comprehensive and have obvious arrangements. A white pages phone book includes all of the phone numbers and names, and arranges them alphabetically. So much for selection and arrangement.
The problem is that it can be hard work to research and compile these facts even if the result has no originality. I think we believe that people should be able to obtain benefit from their work. Database protection schemes try to create a copyright-like right against the substantial extraction and reuse of facts from a database. Thus, someone who contributes to a publicly licensed database wants to be sure he can access the additions of others in the future in payment for his work (rather than the corporate-generate-cashflow model for benefit.)
Licenses are important to accomplish that right to later access because they can work even where you don't have a 'right' to copyright. Thus, if I license a CD to you with all the phone numbers in the U.S., I can license it to you as long as you don't put it where multiple people can use it. After all, fair is fair, we have a contract, and I am just making sure I can sell my work to other people, and not have you, my customer, becoming my competitor just for having bought my product once.
A public license on a database would really only be useful if databases DERIVED from the original had to be made available for copying. Consider a list of all the music CDs ever made. It has to be updated, since new product comes out all the time. Can someone go into the business of providing these databases by taking the old, updating it, and calling the new database proprietary? Not if you have a public license. (All of this assumes that shrinkwrap or clickwrap licenses are good. They aren't in many countries.)
As long as the resultant database is available to be copied, in whole, then the charge for accessing the server, whether to take the whole thing at once, or one record at a time ought to just fall under a reasonable distribution charge. Heck, the record-by-record access might as well be charged at any rate the provider wants since they are providing interface as well as content. If someone wants to roll their own, let them download the database.
I think a public database license would be a good thing because it will allow public databases to grow and be distributed in a fair way when database protection laws are passed.
IIRC, the complaint talks about "improper" means or motives for the decryption. A trade secret is protected if reasonable measures are taken to protect it.
"The protection accorded the trade secret holder is against the disclosure or unauthorized use of the trade secret by those to whom the secret has been confided under the express or implied restriction of nondisclosure or nonuse. The law also protects the holder of a trade secret against disclosure or use when the knowledge is gained, not by the owner's volition, but by some 'improper means,' Restatement of Torts s 757(a), which may include theft, wiretapping, or even aerial reconnaissance. A trade secret law, however, does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering, that is by starting with the known product and working backward to divine the process which aided in its development or manufacture." (from Kewanee Oil Co. v. Bicron Corp., a 1974 Supreme Court case.)
Obviously, the DVD brigade wants to make what has been done an "improper means" under the law as opposed to "fair and honest means." (California Law is California Law, and as Professor Froomkin has pointed out, there may be any number of wierdnesses in it. YMMV.)
I like patenting things like this. I think it will make a critical technology advance faster, and make the relevant businesses more efficient.
Patenting makes the technology known to the public. The patent explains how to make and use the thing, and puts the world in a position to figure out improvements to it. It is a way of facilitating "open source" for ideas. Sure, you have to pay the piper for the idea that is disclosed, that is, respect the monopoly for the period of years. You can license, but then, the inventor is just getting paid.
The alternative just makes my skin crawl. The alternative is that everyone in technology keeps secrets. They restrict who they hire, and where those people can go when they leave. The sue former employees and their present employers when it might look like a secret got leaked. Keeping the details of technology secret would in turn limit the number of people who have the access to make improvements. I think that trying to distinguish between general knowledge that an employee learned while working at a place can be hard to distinguish from the the secrets the company has, or that the person was paid to develop. I bet such judgments are just as hard for juries to make as obviousness is for patent examiners.
At least with a patent, there are electronically recorded and searchable lists of what you can't do without someone else's permission. Then you can find out who you pay to be allowed to do it. Keeping track of the off-the-books trade secrets that float with contract employees, and making sure you can't get sued for their contributions can be darn hard. (And one of the ironies of trade secret suits, the person complaining WON'T TELL YOU WHAT SECRET YOU'VE STOLEN, in case you actually didn't steal it. Heh. That makes for some fun during the lawsuit.)
Personally, I prefer open information, and the ability of employees to move freely, and companies to hire and fire as needed to pursue technology. That means patents instead of trade secrets. I don't think that search engine developers keeping their advances tightly secret will make the internet a good tool as fast as patents will.
The "American Rule" is that each side bears its own costs of a lawsuit unless a statute says otherwise. Among the exceptions, Patent, Trademark, and Copyright suits give fees in "exceptional cases" and RICO suits give fees in all cases where the plaintiff wins. I think there are also antitrust and environmental lawsuit provisions for plaintiffs also. That said in 99% of cases, each side is bearing its own costs.
The other rule (usually the "English Rule" in most areas, but I am not sure what it is called in fees) is "loser pays." From what I understand, German civil law has "loser pays", but with a cap on the amount you can spend on the lawsuit.
American proceedings tend to be more expensive because of the open "discovery" provisions of American law in general. You get to ask a lot of questions that other people have to answer under oath before the trial. In most countries, you do an investigation, but do not have the ability to compel testimony before trial. The UK just adopted some discovery rules, but I don't know the effect has had yet. There are other countries, like most civil law countries (France, Germany) where the judge is less a referee, and more of an investigator. Naturally, this affects who does what work, and who bears what expenses.
I expect all systems provide some avenue for payment of the other sides fees when one side behaves abusively in the conduct of the lawsuit. (Destroying evidence, harassment, lying, etc.)
In all systems, I suspect YMMV depending on your judge.
If you know of prior art you don't tell the patent office about, that's "inequitable conduct". Inequitable conduct renders the patent unenforcable. Inequitable conduct can also, at the discretion of the judge, render the case "exceptional" entitling the defendant to reimburisment of all his reasonable costs, including attorney's fees. Inequitable conduct is evaluated by looking at the materiality of the misrepresentation or omission, and the intent to deceive the examiner. Both need to be present, and the judge weighs them, so more of one requires less of the other.
If you know that the patent is invalid (more than just a likelihood it is invalid, you know the thing is no good) then you can get hit with antitrust violations. This requires high materiality and very high bad intent. Damn rare thing.
If the United States Government is the author, there is not copyright in it. The idea is that the Congressional record, judicial opinions, regulations issued by regulatory agencies, etc, etc are not copyrighted and anyone can copy them as much as they like.
The Supreme Court rejected telephone white pages as being copyrightable because the white pages do not have the "originality" that is required to make something a work of authorship. No matter how hard you worked to collect data, databases are not protected unless they have originality, usually expressed as "selection or arrangement." I can't believe that an address to zip code database qualifies, but YMMV.
There have been bills floating around for some years to address database protection, and the Europeans have already addressed that with their Database Directive. The idea is to protect databases from substantial copying for 15 years. I think that the small, but vigorous opposition is going to get steamrolled, but may succeed in getting a "fair use" exception put in. I haven't looked at this issue in a couple of years, so something may have even passed already.
In short, databases aren't always protected by copyright, so slap a license on them! A contract is still a contract...
The North Carolina tax is a "use tax." It applies to net and non-net transactions, and so it is sort of fair. (There is always someone whose ox is disproportionately gored by any particular tax.) I think that every state that has a sales tax has a use tax. The idea is to prevent shopping based on the sales tax alone.
Consider a state with no sales tax next to a state with a sales tax. Everyone would go over the state line to buy their cars if not for the use tax. The use tax means you pay the sales tax in the state you live in, even if the state you bought in doesn't charge sales tax.
Since you have to register cars, that is one item that such taxes are collected on. Some states also allow counties and cities to track the cars, so that big city buyers can't just go to the suburbs to skip city and county sales taxes.
Apart from big things that you have to tell the government about, use taxes are pretty much a failure. They should apply not only to net purchases, but mail order (phone order) buying too. And yes, in theory, people are supposed to fink on themselves to pay it! North Carolina seems to be taking the big step of putting a line on a form for it. Nobody does it. Actually, most states don't make any effort to collect it.
Sort of reminds me of a story about James Franck (famous physicist). He moved to Chicago, and in accordance with the law, reported all his luxury goods to pay tax. The astounded city employee he went to asked him: "And do you think you are the only man in Chicago with a watch, Mr. Franck?" And the functionary sent him along without charging any tax.
Sure, the government cannot require that the protected speech identify you. That is not the same as saying you are guaranteed untraceable means to use. If you are handing out unsigned leaflets on a street corner, a policeman can still look at you to see who you are. Remember, earlier this year the KKK was required to march unmasked in New York. (Personally, I think that decision was wrong, but that decision was upheld by the Second Circuit Court of Appeals.)
I just don't see where the Internet is any better or worse off than the real world in a lot of ways. First, you can ignore what you want to. Second, people CAN do things anonymously in real life, such as distributing defamatory leaflets, or sending crank snail-mail.
This is important because cases like this are generally decided by state law, not federal law. This case, for instance, was decided entirely on state law grounds. Read the decision. Unless Congress passes a law that displaces that state law, each state can and will do what it wants.
The Court of Appeals is the highest court in New York. (New York had to be different. The lowest courts in New York are the "Supreme Court.") It has enoromous influence across the nation, and the courts of other states, including their highest courts, will give weight to this decision when deciding other cases. Historically, because of Cardozo, the New York Court of Appeals has had an especially strong influence on tort law, the area of the law that covers cases like this.
Absent a decision like this from the California Supreme Court (size does matter) I can't think of a court I'd rather have the support of in this area.
As indicated earlier by a Greek poster, how you run your system depends on the result you want to achieve. China likes to solve societal problems. Whether that problem is drug use, political dissent, or organized exercise, vigorous(Westerners would say rabid), but not necessarily perfect responses are the order of the day. If you do not value individualized justice as highly as solving your social problems, this makes a lot of sense.
Anonymous Coward likes individualized justice. So do I. Also, I have no theoretical problems with the death penalty for murder and non-consensual sexual crimes (forcible rape, child molestation, but not statutory rape or incest). The problems all seem to be in running the system, and it isn't clear that we in the U.S. (despite our aspirations) make better decisions than the Chinese do in whether somebody did what they are accused of.
Who's to blame. Look around when you are walking down the street. Many prosecutors know that the way to succeed politically is to score big in a popular capital case for gruesome crimes, whether or not the accused actually did it. This is not a erroneous perception -- look at high ranking politicians in your state and ask how many were prosecuters or attorneys general at some point. Also, it's the 12 people sitting in the box who often control the death penalty outcome.
Sure, funding for public defenders could swing things some, but its the voters who choose the prosectors, sit as jurors, and choose the judges either directly or indirectly. When it comes to the death penalty we do a pretty bad job. That, and executing people 20 years later after all the appeals isn't big-time deterrance.
At least I get the sense the Chinese are achieving what they are after. I don't have the same confidence that we are.
There are four major factors considered to get a preliminary injunction, a likelihood of success on the merits, irreparable harm (that is, harm which cannot be compensated by money alone), that the balance of hardships if an injunction is granted favors the plaintiff, and that the public interest favors the injunction. All of these factors are balanced by the judge in making a final decision. You need to make a very strong showing in at least one of those areas to motivate a judge to give you a preliminary injunction because this is really extraordinary action by the court.
For the likelihood of success on the merits, the judge needs to believe that the patent is likely valid and infringed. For patents that have never been in a law suit before, the issue of validity can be a problem if you can find evidence to raise substantial issues. The patent is always presumed valid, but it is better to have fought over the validity of the patent before and won than merely rely on the presumption.
Irreparable harm means that there has to be something special. Loss of market share, or damage to reputation are things that money can't necessarily buy back. If the plaintiff makes a strong showing on the likelihood of success, irreparable harm is presumed in a patent case.
The balance of harms considers whether the plaintiff is more hurt by denying the injunction, or the defendant is more hurt by granting it. The harms measured are usually not monetary. If money can make the plaintiff whole, he will get damages at the end of the case. If money would make the defendant whole if the injunction was improvidently granted, he will usually be paid because the judge almost always requires the plaintiff to post a bond in case the preliminary injunction was erroneously granted.
The judge also has to evaluate the impact on the public. This is usually most important in areas like public safety and public health, not considerations like market price. The impact on the public is usually not a large factor in patent cases.
A preliminary injunction is usually not that big a deal if it is denied (as it usually is). Where a preliminary injunction is a big deal is where it is granted. You can appeal immediately, but if the appeals court upholds it, the judge has pulled the plug on the defendant's activity until trial. That could be 1-2 years. Some high-stakes cases are exceptional, but cases usually settle if a preliminary injunction is granted.
First, both parties are still a lot of lawyers fees away from ending the thing. Possibly millions or in the most extreme cases, tens of millions of dollars.
Second, the defendant just got a message from the judge that the judge thinks the plaintiff is likely to win. In patent cases, it is usually the likelihood of success, not the harms issues that motivates the injunction. Let's face it -- nobody is going to die in these cases, nobody is losing a limb, nobody is being jailed for two years, etc.
The thing that is most likely to give both sides the jitters is that nobody knows how the court of appeals is going to interpret that patent. The Federal Circuit disagrees with the trial court judge almost half the time on that issue.
Because the distraction of 1-2 years of litigation also will burden both sides during a period in which they want to focus on growth, and given that 1-2 years is forever in Internet time, I wouldn't expect any Internet patent case to continue very long if a preliminary injunction is upheld by a court of appeals. It is just very hard for it to make economic sense.
For a review of Judge Posner as a judge, you can take a look at http://www.chicagocouncil.org/richarda.htm. That review is somewhat dated -- he is now the chief judge of the Seventh Circuit Court of Appeals.
Apart from his judicial opinions, he is one of the most prolific and influential legal writers in American legal history. This gives him tremendous stature and credibility. If anyone can save this case from a multi-year legal wrangle in appeals, it should be Judge Posner.
This kind of thing is called "reverse confusion", that is, the little guy was first, and got swamped by the big ad campaign of the later, bigger company. The problem that causes is that practically everyone forgets that you, the little guy, exists. Your business identity gets swallowed up in mega-advertising which does nothing to lead people to you. They might think better of you once they find you, but the problem is that they may never think to find you or that you exist. Distinctiveness of identity is so important where a marketplace is going to have a lot of players equally accessible by customers. That describes the internet in spades. If GoTo is right, it had every reason to be unhappy.
How a word can be a trademark depends on what it is used on. A classic example is APPLE. If you try to apply APPLE to the fruit as a trademark you can't -- everyone needs to use the word apple for apples. That's called genericness. At the other extreme, if you use the word APPLE for a computer... apples have nothing to do with computers. Nobody needs to use APPLE to sell computers, so the world isn't poorer for letting someone do it. There is a spectrum. APPLE for vitamins is in-between because of the old saying. Naturally, you are best off making up a name, such as Exxon or Xerox. Just don't get too successful where your name becomes the word for the thing. (THERMOS and ASPIRIN for example). I think that a stoplight is a lot closer to using APPLE on a computer than on the fruit.
Slashdot Mirror
Hmm. Anyone look into Tortious Interference with Prospective Economic Advantage? Not every jurisdiction has it...
The users of the software qualify as third parties, so your analysis is not incorrect.
Cost is only one basis for establishing prices. Cost is most appropriate for commodities with many providers selling essentially interchangable goods. To stay in business requires charging more than the cost, but the competitors keep you from getting very far about it.
When you have a monopoly of some kind, there are no competitors to keep you near your cost. You can now charge near what the value to the buyer is. Although there may be substitutes to keep you more or less in line, the fact that if someone wants your thing they have to pay the price for it gives you a power that does not exist for commodities.
Copyright is a kind of monopoly. If you don't want to pay the price they ask, don't buy. Don't complain that the 'cost' should be defining the price though. Go get your substitute.
The term for the really unhappy here is "deadweight loss." These are the people who do not get served, but could be, with the same net income to the seller. It is sad that markets do not work in ways that maximize distribution for the same profit for the seller, but the nature of digital copyright isn't at fault for that.
Ha, the measure required spending money. In Holland, Michigan, the cheapest town in America, that is usually a dead-bang loser. Seriously though, employers love Holland because it has a large body of people with good high school educations. People who can be good workers, and good members of a community. Not everyone gets college degrees and graduate degrees. I think the people there just understood the issues, including the futility of trying to set the Internet in stone. After all, these people did elect Phil Tanis mayor at one point, right? How knee-jerk conservative can they be, electing a 22-23 year old as mayor? I just think the out-of-town proponents just screwed up their market research. There has to be a community in America where that initiative is a winner, just not Holland.
Based on years with USENET, IRC and MUDs, I'd say that sorting out "voices" from "mere" text is something that a lot of us have been doing on line for a long time.
As a MUD admin, I was often able to tell when someone "other" than the owner of a character was using it. Female admins were a lot better than me at it, actually. Once you start to put together a mental "image" of who this disembodied voice is, it is amazing how quickly someone else assuming the role "clashes" with the picture that formed in your mind.
The science here comes in being able to just yank other text and categorize it, and scale that power up enormously. Thus, people like our author here have stunningly impressive powers over those that they do not know personally.
However, don't believe that if your boss reads something you wrote, he might not add 1 and 1 to get two. When it is familiar with things, the human mind is a powerful associative tool. Do you really think you could fool your mother? Or brother? The Unabomber, as smart as he was, couldn't. He did get by the experts for a long time though.
From what I can tell, the law takes the present licenses that come with software and pushes their limits some, but not unrecognizably. If you read the licenses that are distributed now, they are darn harsh creatures. Come to think of it, mandatory arbitration (like they pick the arbitraror) for hardware isn't exactly peaches and cream either.
The original spirit of the Uniform Commerical Code was to codify everyday commercial practices in effect, sometimes for centuries, through custom and common law. Also in the spirit of the UCC, is that it is written mostly for business transactions, and is not/was never intended to be a consumer protection code.
A long, long fight over the part of the UCC that deals with the purchases of goods (think computer, camera, food, grain, etc) has been to make that code "consumer-protective." After decades, it has just getting to be more so. I am not in the least surprised that the first cut at the "information" dimension follows the old pattern.
I think the reason this has come to pass is that consumers really don't care about the licenses they have now. They never read them, and they blatantly abuse them. Consumers copy software, use it on multiple computers, etc, etc, all against the terms of their licenses. Enforcement is practially nil. If a significant player in the market, perhaps an abusive Redmond, WA company, were to start pulling stunts like remotely switching software off, triggering your online banking software to pay for the extra copies you made, erasing your HD under the terms of the license or what not, the law would change QUICK.
It's a shame that we will have to go through that firestorm once to get something reasonable. I can't see the uniform state law people getting a good law out the first time around.
The Dutch-American roots of Holland Michigan are usually more frugal than outright politically conservative. Why would the "Republican" population of the city approve this lawsuit-bait? Have they been told that this is going to be a $4-20 or more cost per citizen?
I don't think it is clear that this is a winner in the courts. Government does not have to provide material, such as artwork to the citizenry. When it does so though, it cannot pick and choose the content based on a message. (Unless of course, it is a governmental message, such as the anti-drug ad campaign, or armed forces recruiting ads.) The government can't just run around squelching viewpoints, whether in a public square or on the Internet. It just doesn't have to give you a voice. (Like provide an Internet hookup in the library.)
My bet is that the restriction passes, is challenged in court, and Holland, MI gives up early in the fight.
Similarly, nobody says that burglarizing people's homes and businesses is ok if the locks were weak. So, yeah, if you get hit, you have yourself to blame to a certain extent, but that doesn't make what the burglar did OK. Insurance companies should (maybe do?) make routine computer security a deduction on policies.
Janet Reno's job isn't about deterrence only, it is also about punishment/vengance. What's she doing? Coordinating across enforcers. What is the problem with that? It's the cops' job to protect the weak and the stupid. The strong and the smart most often won't need them.
Currently physics departments turn out many more Ph.D. physicists than there are jobs tailored for such a background. On the other hand, the general public's literacy in science in general, and physics in particular is quite low. The pair of these problems would seem to pose a Gordian knot of a problem -- how do we cut through it? Excessive production of Ph.D physicists seems an inefficient way to improve public awareness and scientific literacy.
You know, when adults cut a deal, they should hold up their end.
The whole idea that someone would drop that because Microsoft was at the other end is just sick. I don't steal from my friends, and I don't steal from my enemies either. I don't do things like that because they're wrong.
I guess nobody here ever paid for shareware either. I thought this was supposed to be a community that was reasonable even without government intervention. Maybe I was wrong. *sigh*
The problem is that it can be hard work to research and compile these facts even if the result has no originality. I think we believe that people should be able to obtain benefit from their work. Database protection schemes try to create a copyright-like right against the substantial extraction and reuse of facts from a database. Thus, someone who contributes to a publicly licensed database wants to be sure he can access the additions of others in the future in payment for his work (rather than the corporate-generate-cashflow model for benefit.)
Licenses are important to accomplish that right to later access because they can work even where you don't have a 'right' to copyright. Thus, if I license a CD to you with all the phone numbers in the U.S., I can license it to you as long as you don't put it where multiple people can use it. After all, fair is fair, we have a contract, and I am just making sure I can sell my work to other people, and not have you, my customer, becoming my competitor just for having bought my product once.
A public license on a database would really only be useful if databases DERIVED from the original had to be made available for copying. Consider a list of all the music CDs ever made. It has to be updated, since new product comes out all the time. Can someone go into the business of providing these databases by taking the old, updating it, and calling the new database proprietary? Not if you have a public license. (All of this assumes that shrinkwrap or clickwrap licenses are good. They aren't in many countries.)
As long as the resultant database is available to be copied, in whole, then the charge for accessing the server, whether to take the whole thing at once, or one record at a time ought to just fall under a reasonable distribution charge. Heck, the record-by-record access might as well be charged at any rate the provider wants since they are providing interface as well as content. If someone wants to roll their own, let them download the database.
I think a public database license would be a good thing because it will allow public databases to grow and be distributed in a fair way when database protection laws are passed.
IIRC, the complaint talks about "improper" means or motives for the decryption. A trade secret is protected if reasonable measures are taken to protect it.
"The protection accorded the trade secret holder is against the disclosure or unauthorized use of the trade secret by those to whom the secret has been confided under the express or implied restriction of nondisclosure or nonuse. The law also protects the holder of a trade secret against disclosure or use when the knowledge is gained, not by the owner's volition, but by some 'improper means,' Restatement of Torts s 757(a), which may include theft, wiretapping, or even aerial reconnaissance. A trade secret law, however, does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering, that is by starting with the known product and working backward to divine the process which aided in its development or manufacture." (from Kewanee Oil Co. v. Bicron Corp., a 1974 Supreme Court case.)
Obviously, the DVD brigade wants to make what has been done an "improper means" under the law as opposed to "fair and honest means." (California Law is California Law, and as Professor Froomkin has pointed out, there may be any number of wierdnesses in it. YMMV.)
I like patenting things like this. I think it will make a critical technology advance faster, and make the relevant businesses more efficient.
Patenting makes the technology known to the public. The patent explains how to make and use the thing, and puts the world in a position to figure out improvements to it. It is a way of facilitating "open source" for ideas. Sure, you have to pay the piper for the idea that is disclosed, that is, respect the monopoly for the period of years. You can license, but then, the inventor is just getting paid.
The alternative just makes my skin crawl. The alternative is that everyone in technology keeps secrets. They restrict who they hire, and where those people can go when they leave. The sue former employees and their present employers when it might look like a secret got leaked. Keeping the details of technology secret would in turn limit the number of people who have the access to make improvements. I think that trying to distinguish between general knowledge that an employee learned while working at a place can be hard to distinguish from the the secrets the company has, or that the person was paid to develop. I bet such judgments are just as hard for juries to make as obviousness is for patent examiners.
At least with a patent, there are electronically recorded and searchable lists of what you can't do without someone else's permission. Then you can find out who you pay to be allowed to do it. Keeping track of the off-the-books trade secrets that float with contract employees, and making sure you can't get sued for their contributions can be darn hard. (And one of the ironies of trade secret suits, the person complaining WON'T TELL YOU WHAT SECRET YOU'VE STOLEN, in case you actually didn't steal it. Heh. That makes for some fun during the lawsuit.)
Personally, I prefer open information, and the ability of employees to move freely, and companies to hire and fire as needed to pursue technology. That means patents instead of trade secrets. I don't think that search engine developers keeping their advances tightly secret will make the internet a good tool as fast as patents will.
The "American Rule" is that each side bears its own costs of a lawsuit unless a statute says otherwise. Among the exceptions, Patent, Trademark, and Copyright suits give fees in "exceptional cases" and RICO suits give fees in all cases where the plaintiff wins. I think there are also antitrust and environmental lawsuit provisions for plaintiffs also. That said in 99% of cases, each side is bearing its own costs.
The other rule (usually the "English Rule" in most areas, but I am not sure what it is called in fees) is "loser pays." From what I understand, German civil law has "loser pays", but with a cap on the amount you can spend on the lawsuit.
American proceedings tend to be more expensive because of the open "discovery" provisions of American law in general. You get to ask a lot of questions that other people have to answer under oath before the trial. In most countries, you do an investigation, but do not have the ability to compel testimony before trial. The UK just adopted some discovery rules, but I don't know the effect has had yet. There are other countries, like most civil law countries (France, Germany) where the judge is less a referee, and more of an investigator. Naturally, this affects who does what work, and who bears what expenses.
I expect all systems provide some avenue for payment of the other sides fees when one side behaves abusively in the conduct of the lawsuit. (Destroying evidence, harassment, lying, etc.)
In all systems, I suspect YMMV depending on your judge.
If you know of prior art you don't tell the patent office about, that's "inequitable conduct". Inequitable conduct renders the patent unenforcable. Inequitable conduct can also, at the discretion of the judge, render the case "exceptional" entitling the defendant to reimburisment of all his reasonable costs, including attorney's fees. Inequitable conduct is evaluated by looking at the materiality of the misrepresentation or omission, and the intent to deceive the examiner. Both need to be present, and the judge weighs them, so more of one requires less of the other.
If you know that the patent is invalid (more than just a likelihood it is invalid, you know the thing is no good) then you can get hit with antitrust violations. This requires high materiality and very high bad intent. Damn rare thing.
If the United States Government is the author, there is not copyright in it. The idea is that the Congressional record, judicial opinions, regulations issued by regulatory agencies, etc, etc are not copyrighted and anyone can copy them as much as they like.
The Supreme Court rejected telephone white pages as being copyrightable because the white pages do not have the "originality" that is required to make something a work of authorship. No matter how hard you worked to collect data, databases are not protected unless they have originality, usually expressed as "selection or arrangement." I can't believe that an address to zip code database qualifies, but YMMV.
There have been bills floating around for some years to address database protection, and the Europeans have already addressed that with their Database Directive. The idea is to protect databases from substantial copying for 15 years. I think that the small, but vigorous opposition is going to get steamrolled, but may succeed in getting a "fair use" exception put in. I haven't looked at this issue in a couple of years, so something may have even passed already.
In short, databases aren't always protected by copyright, so slap a license on them! A contract is still a contract...
The North Carolina tax is a "use tax." It applies to net and non-net transactions, and so it is sort of fair. (There is always someone whose ox is disproportionately gored by any particular tax.) I think that every state that has a sales tax has a use tax. The idea is to prevent shopping based on the sales tax alone.
Consider a state with no sales tax next to a state with a sales tax. Everyone would go over the state line to buy their cars if not for the use tax. The use tax means you pay the sales tax in the state you live in, even if the state you bought in doesn't charge sales tax.
Since you have to register cars, that is one item that such taxes are collected on. Some states also allow counties and cities to track the cars, so that big city buyers can't just go to the suburbs to skip city and county sales taxes.
Apart from big things that you have to tell the government about, use taxes are pretty much a failure. They should apply not only to net purchases, but mail order (phone order) buying too. And yes, in theory, people are supposed to fink on themselves to pay it! North Carolina seems to be taking the big step of putting a line on a form for it. Nobody does it. Actually, most states don't make any effort to collect it.
Sort of reminds me of a story about James Franck (famous physicist). He moved to Chicago, and in accordance with the law, reported all his luxury goods to pay tax. The astounded city employee he went to asked him: "And do you think you are the only man in Chicago with a watch, Mr. Franck?" And the functionary sent him along without charging any tax.
A couple of points:
Sure, the government cannot require that the protected speech identify you. That is not the same as saying you are guaranteed untraceable means to use. If you are handing out unsigned leaflets on a street corner, a policeman can still look at you to see who you are. Remember, earlier this year the KKK was required to march unmasked in New York. (Personally, I think that decision was wrong, but that decision was upheld by the Second Circuit Court of Appeals.)
I just don't see where the Internet is any better or worse off than the real world in a lot of ways. First, you can ignore what you want to. Second, people CAN do things anonymously in real life, such as distributing defamatory leaflets, or sending crank snail-mail.
This is important because cases like this are generally decided by state law, not federal law. This case, for instance, was decided entirely on state law grounds. Read the decision. Unless Congress passes a law that displaces that state law, each state can and will do what it wants.
The Court of Appeals is the highest court in New York. (New York had to be different. The lowest courts in New York are the "Supreme Court.") It has enoromous influence across the nation, and the courts of other states, including their highest courts, will give weight to this decision when deciding other cases. Historically, because of Cardozo, the New York Court of Appeals has had an especially strong influence on tort law, the area of the law that covers cases like this.
Absent a decision like this from the California Supreme Court (size does matter) I can't think of a court I'd rather have the support of in this area.
Anonymous Coward likes individualized justice. So do I. Also, I have no theoretical problems with the death penalty for murder and non-consensual sexual crimes (forcible rape, child molestation, but not statutory rape or incest). The problems all seem to be in running the system, and it isn't clear that we in the U.S. (despite our aspirations) make better decisions than the Chinese do in whether somebody did what they are accused of.
Who's to blame. Look around when you are walking down the street. Many prosecutors know that the way to succeed politically is to score big in a popular capital case for gruesome crimes, whether or not the accused actually did it. This is not a erroneous perception -- look at high ranking politicians in your state and ask how many were prosecuters or attorneys general at some point. Also, it's the 12 people sitting in the box who often control the death penalty outcome.
Sure, funding for public defenders could swing things some, but its the voters who choose the prosectors, sit as jurors, and choose the judges either directly or indirectly. When it comes to the death penalty we do a pretty bad job. That, and executing people 20 years later after all the appeals isn't big-time deterrance.
At least I get the sense the Chinese are achieving what they are after. I don't have the same confidence that we are.
For the likelihood of success on the merits, the judge needs to believe that the patent is likely valid and infringed. For patents that have never been in a law suit before, the issue of validity can be a problem if you can find evidence to raise substantial issues. The patent is always presumed valid, but it is better to have fought over the validity of the patent before and won than merely rely on the presumption.
Irreparable harm means that there has to be something special. Loss of market share, or damage to reputation are things that money can't necessarily buy back. If the plaintiff makes a strong showing on the likelihood of success, irreparable harm is presumed in a patent case.
The balance of harms considers whether the plaintiff is more hurt by denying the injunction, or the defendant is more hurt by granting it. The harms measured are usually not monetary. If money can make the plaintiff whole, he will get damages at the end of the case. If money would make the defendant whole if the injunction was improvidently granted, he will usually be paid because the judge almost always requires the plaintiff to post a bond in case the preliminary injunction was erroneously granted.
The judge also has to evaluate the impact on the public. This is usually most important in areas like public safety and public health, not considerations like market price. The impact on the public is usually not a large factor in patent cases.
A preliminary injunction is usually not that big a deal if it is denied (as it usually is). Where a preliminary injunction is a big deal is where it is granted. You can appeal immediately, but if the appeals court upholds it, the judge has pulled the plug on the defendant's activity until trial. That could be 1-2 years. Some high-stakes cases are exceptional, but cases usually settle if a preliminary injunction is granted.
First, both parties are still a lot of lawyers fees away from ending the thing. Possibly millions or in the most extreme cases, tens of millions of dollars.
Second, the defendant just got a message from the judge that the judge thinks the plaintiff is likely to win. In patent cases, it is usually the likelihood of success, not the harms issues that motivates the injunction. Let's face it -- nobody is going to die in these cases, nobody is losing a limb, nobody is being jailed for two years, etc.
The thing that is most likely to give both sides the jitters is that nobody knows how the court of appeals is going to interpret that patent. The Federal Circuit disagrees with the trial court judge almost half the time on that issue.
Because the distraction of 1-2 years of litigation also will burden both sides during a period in which they want to focus on growth, and given that 1-2 years is forever in Internet time, I wouldn't expect any Internet patent case to continue very long if a preliminary injunction is upheld by a court of appeals. It is just very hard for it to make economic sense.
Apart from his judicial opinions, he is one of the most prolific and influential legal writers in American legal history. This gives him tremendous stature and credibility. If anyone can save this case from a multi-year legal wrangle in appeals, it should be Judge Posner.
This kind of thing is called "reverse confusion", that is, the little guy was first, and got swamped by the big ad campaign of the later, bigger company. The problem that causes is that practically everyone forgets that you, the little guy, exists. Your business identity gets swallowed up in mega-advertising which does nothing to lead people to you. They might think better of you once they find you, but the problem is that they may never think to find you or that you exist. Distinctiveness of identity is so important where a marketplace is going to have a lot of players equally accessible by customers. That describes the internet in spades. If GoTo is right, it had every reason to be unhappy.
How a word can be a trademark depends on what it is used on. A classic example is APPLE. If you try to apply APPLE to the fruit as a trademark you can't -- everyone needs to use the word apple for apples. That's called genericness. At the other extreme, if you use the word APPLE for a computer... apples have nothing to do with computers. Nobody needs to use APPLE to sell computers, so the world isn't poorer for letting someone do it. There is a spectrum. APPLE for vitamins is in-between because of the old saying. Naturally, you are best off making up a name, such as Exxon or Xerox. Just don't get too successful where your name becomes the word for the thing. (THERMOS and ASPIRIN for example). I think that a stoplight is a lot closer to using APPLE on a computer than on the fruit.