The search for a coherent, predictable interpretation applicable to all cases remains elusive. This is so particularly because any common law interpretation proceeds on a
case-by-case basis.
Although the Kinkos case is NOTHING like the current case, the court did provide valuable insight relevant here:
While financial gain "will not preclude [the] use from being a fair use," New York Times Co. v. Roxbury Data
Interface, Inc., 434 F. Supp. 217, 221 (D.N.J. 1977), consideration of the commercial use is an important one.
So I stand by my claim that it remains arguable about whether or not this is fair use. Simply saying "they did it for a profit", while not helpful to the defendant, is not enough to shut down a fair use defense.
The law simply states "the factors to
be considered shall include". It is NOT a four-part test in which you must meet all criteria to be considered "Fair Use".
I believe that it is generally accepted (by case law, not by the RIAA) that you can tape a complete CD and give it to a friend, as long as no payment is involved. This violates all but the first rule, yet courts have held it as fair use. See the Sony case, for example, that allows anyone to video tape anything on TV and replay it, as long as they are not doing so commercially.
As far as the scope, that is debatable. The law doesn't say "100 screenshots is too much", or even "50%" or any other objective criteria. It's reasonable that their lawyer would like to let a jury decide.
Finally, if they only have to pass a single criteria, I think the fact that they can't possibly have a negative impact on Nintendo sales should be their Fair Use Ace in the Hole.
Imagine Media needs to fire their lawers. Fair use is well defined in the law. This ain't it.
How do you figure this aint it?
... In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
...
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
A screenshot is a pretty minimal amount of the whole work. Perhaps they published screenshots of every possible scenario throughout the game.
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Here's where I think Nintendo is going to have a really tough time. People would generally only be interested in a "Strategy Guide" if they actually wanted to play the game, so their use of Copyrighted screenshots would only be considered to have a positive effect on the market for the nintendo games. No one is deciding to look at screen shots in lieu of buying the game.
It may be that Nintendo also publishes a "Strategy Guide" and they want people to buy that. A third party Guide could have a negative impact on their guide. Even then, they would have to show that the third party Guide was violating the Copyright of the Official Guide, and not the screenshots of the game. I can't write a review of a movie and then claim that other reviews violate my copyright.
> I was surprised and a bit worried when I read Linus saying that about 3.0.
But what he was saying was the he did NOT have plans for a 2.5 or 3.0 yet. That says to me that either there will be a 2.5 or perhaps there will be such significant changes to warrant a 3.0. But, as of now, he hasn't even started thinking about it.
When Sun went from Solaris 2.6 to Solaris 7, one of their reasons was that they never ever had any plans to make anything that would be called Solaris 3, and the "2." was therefore just redundant. Linus, OTOH, has not yet ruled out significant changes for a 3.0.
Wait until you see what is discussed for a 3.0 release (if any) before you start worrying too much.
Note that the submission did not have any links to the register and were added by the editor (Timothy). Anything submitted with a register link is robo-killed.
The Dilbert Principal is actually an update to the Peter Principal. They are quite different.
The Peter Principal is when someone is promoted until they reach a job that they can't do.
The Dilbert Principal, on the other hand, is the notion of taking the *least* productive engineers and promoting them where they can do the least harm, namely Management.
As the poster describes it, his situation sounds like the Peter Principal. But we only have his side of the story. It may be that management doesn't see him as a good engineer and wants to hire a better engineer and really just wants to promote him to management to make room for the new engineer.
> He is not saying that there is too much choice - he is saying that all of the distros have too much choice.
Does this have something to do with what the definition of "is" is? It's not that there "is" too much, but that they "have" too much? Please clarify.
> Current distros are mashing everything together
First he selected "Linux-Mandrake", which prides itself on having everything and not being the newbie distribution. Then he complains that Debian is more worried about Free software than the newbie market. Duh! Kinda like being surprised that a Republican wants a tax cut.
He most certainly does *not* say that there needs to be a newbie distro. He told all the distros to slim it down.
The overall viewpoint of the ZDnet article, from the catchy headline to the final tag, was "Linux offers too much". There was no moderation, no sense of compromise, no notion of different distributions for different purposes.
> This was all that was being stated.
Then why mention Linux-Mandrake, Debian and SuSE?
Linux-Mandrake started off as a "Redhat doesn't have enough" distribution. And he complains that they have too much for a newbie.
Debian was created on the principals of Free Software. And he complains that newbies don't care about GNU.
No where did he make the sane and rational argument that there should be a *different* distribution geered towards newbies. He never even acknowledged that the distributions he was looking at were marketed to specific audiences. His parting shot was directed at all distributions: slim it down.
> Proposing outlandish solutions instead of reasonable ones
No, *I'm* not proposing this. The ZDnet article is. Read it. The guy's big problem is that there are so many choices. He didn't pick a newbie distribution, he picked a distribution famed for having lots of applications and said they shouldn't have done that! Who's being outlandish? The bottom line is that the author's solution is to eliminate all the choices.
> It is just one obvious solution that any distribution could choose its own default applications
But that already happens. For the most part, you can usually choose something like "Server" or "Workstation" and a bunch of defaults are selected. Under Debian for example, you are *not* forced to decide whether or not to install every single package. In many cases, multiple things that do the same thing (mail clients, for example) get installed by default. Debian has a ranking system in the mime-package to determine what the defaults are. Having several popular mail clients installed by default is a bonus. You can try a new one without going back to your installer.
I'm *not* saying that there aren't things that can be done to help Linux on the Desktop, I'm just saying that this crap from ZDnet is nonsense. The author noticed that there's a lot of apps under Linux (used to be that there weren't any), and so he came up with this hook that "there's too much!"
And so is his conclusion that there needs to be a Newbie distribution? No, he wants *all* distributions to get rid of all these choices. He wants Debian to forget about the whole Free Software/GNU thing and concentrate exclusively on the Lowest Common Denominator.
Re:"Java is the only language..."
on
Perl and .NET
·
· Score: 2
Incidentally, there is a Jacl (Tcl (not Tk) implemented in Java). Nice for testing your java stuff or adding a scripting language to your java app.
> "He gave them a challenge, probably thinking they couldn't do it and didn't think of the ramifications of what might happen if they did do it."
Reminds me of last weeks South Park. Kyle wanted to go to a concert, but was told he'd have to clean his room, shovel the driveway, and end Communism in Cuba. When Castro announced that a little boy in South Park convinced him to end communism, his parents said he still couldn't go to the concert.
I think the kid should not only have the suspension lifted, I also think the teacher should pay the kid the reward that he was promised.
I've installed linux on a few machines and I was never *forced* to choose, at install time, one thing or another. Many apps have competing implementations installed. If you install Netscape Communicator, you've got an email client. Should you *not* include any other email client?
This guy is complaining that, once you've installed it, you might have to pick an email client from the menu and that would be too confusing. Frankly, I think it would confuse a newbie more if he had to go back to the installer everytime he wanted to try a common alternative.
> So why is it that your microscopic mind came up with the idea that "delete" is the only solution to making things simpler?
To quote from the article: "But big Linux distributions packed with thousands of apps are likely to leave the average desktop user dazed and confused."
I've installed Debian which, I believe, has the most packages. They are not (and can not) all be installed at the same time. Not that Debian is even aimed at the newbie market or that newbies should be thinking of using it, but the author is complaining that a distribution *exists* with thousands of apps.
No matter what great distribution you come up with, he can still claim that Linux is no good on the Desktop because Debian's got too much stuff.
Another problem that I can imagine Linux having on the desktop is that users like the same thing on their desk at home and work. But what if your office chooses Redhat Desktop Distribution and you chose Debian Desktop Distribution for home. You probably aren't (nor should you be) root on your work machine, and since only KDE was installed, you'd better go back and add KDE to your home machine.
And he goes further:
"The way I see it, for Linux to become a viable desktop platform, it needs to slim down and streamline its offerings."
He doesn't say "default options," he says "offerings".
Yes, we could probably get a few more users if the install were easier and didn't make them choose stuff. But it's still a hell of a lot harder than just buying a machine with everything on it. All the people that would be helped by eliminating choice would be helped even more if the machine just came installed. They wouldn't have to make any choices at all!
> Everything the article said was valid and should be heard
So you honestly believe that we need to agree an a single email client and everyone should be expected to use that one client? Expecting a user to choose his email client, after all, is just expecting too much of them.
Aside from a few ease-of-installation issues (which, in general, should be solved by OEM-installation), the majority of the article was basically saying that there are too many choices and too much software.
So how do you propose Debian, solve this problem? Delete all-but-one email client, browser, hex editor, text editor, etc. I guess it would settle the KDE/Gnome holly-war once and for all, as one or the other would be forced into extermination (for the good of Linux). The divided vi users had better all agree on a single flavor (elvis, vim, nvi, etc) lest they be ousted by the stronger emacs/xemacs faction. But one way or another, there's no room for a vi and and emacs. Better still to oust them both and replace them with a notepad clone.
It's just silly. The strength of *nix is that pieces are small, interoperable, and interchangeable. And MTA is an MTA, and one can replace another. Some might be fine with a simple, easy to configure MTA, but others might need more complex options.
Should exim be the One True solution? If the big standardization purge came a few years ago, a program like exim would have been verbotten as it did something that was already being done, and we wouldn't want to confuse newbies by introducing a choice.
I remember writing papers in College for Calculus and econ using a Kaypro, a dot-matrix printer, and WordStar.
I had to create a few characters that weren't built-in (like a triangle for a delta, integrals, etc). You'd have to map out your character on a 8x8 piece of paper and then calculate the binary values for each row (or was it by column?), convert to decimal (hex?), and define the character with some obscure dot command in WordStar. You could then use Control-q and some other characters to print your own characters.
Well, a lawyers job is also to advise his clients on the merits of their case. I see 3 likely scenarios:
K&K tells DC and BT that their claims are meritless, unenforceable, laughable, and likely to result in nothing but hefty fees payable to K&K. The clients insist K&K pursue the case anyways. It could happen. Since DC came up with this whole CueCat idea (and the infomercial) w/out thinking very far ahead, it seems plausible that they would be too stupid to listen to their lawyers. BT could expect a loss, but be gambling that a win would mean mega-bucks and worth the gamble.
or
K&K honestly and truly believe that base-64+XOR and hyperlinks are patentable, and advised their clients to pursue their cases. If you believe one is IP, it's not too far of a jump to believe the other. Makes you pity their clients...
or
K&K know how silly this all is, but they get paid either way and misrepresent the cases to their clients. I like to "assume stupidity over malice," and looking at their letters and non-responses to the CueCat sites makes me strongly suspect stupidity.
Slashdot Mirror
> Web servers are not revenue stream.
Excuse me? Banks don't make money with online banking?
So I guess you don't work at NationsBank.
The search for a coherent, predictable interpretation applicable to all cases remains elusive. This is so particularly because any common law interpretation proceeds on a case-by-case basis.
Although the Kinkos case is NOTHING like the current case, the court did provide valuable insight relevant here:
While financial gain "will not preclude [the] use from being a fair use," New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 221 (D.N.J. 1977), consideration of the commercial use is an important one.
So I stand by my claim that it remains arguable about whether or not this is fair use. Simply saying "they did it for a profit", while not helpful to the defendant, is not enough to shut down a fair use defense.
The law simply states "the factors to
be considered shall include". It is NOT a four-part test in which you must meet all criteria to be considered "Fair Use".
I believe that it is generally accepted (by case law, not by the RIAA) that you can tape a complete CD and give it to a friend, as long as no payment is involved. This violates all but the first rule, yet courts have held it as fair use. See the Sony case, for example, that allows anyone to video tape anything on TV and replay it, as long as they are not doing so commercially.
As far as the scope, that is debatable. The law doesn't say "100 screenshots is too much", or even "50%" or any other objective criteria. It's reasonable that their lawyer would like to let a jury decide.
Finally, if they only have to pass a single criteria, I think the fact that they can't possibly have a negative impact on Nintendo sales should be their Fair Use Ace in the Hole.
How do you figure this aint it?
- ...
- (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
A screenshot is a pretty minimal amount of the whole work. Perhaps they published screenshots of every possible scenario throughout the game.- (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Here's where I think Nintendo is going to have a really tough time. People would generally only be interested in a "Strategy Guide" if they actually wanted to play the game, so their use of Copyrighted screenshots would only be considered to have a positive effect on the market for the nintendo games. No one is deciding to look at screen shots in lieu of buying the game.It may be that Nintendo also publishes a "Strategy Guide" and they want people to buy that. A third party Guide could have a negative impact on their guide. Even then, they would have to show that the third party Guide was violating the Copyright of the Official Guide, and not the screenshots of the game. I can't write a review of a movie and then claim that other reviews violate my copyright.
And quoting Gallager, "There's a brightness knob, but it don't seem to work."
Ah, but Thomson has been claiming that Ogg Vorbis is probably also in violation:
http://slashdot.org/yro/00/12/11/2347252.shtml
> I was surprised and a bit worried when I read Linus saying that about 3.0.
But what he was saying was the he did NOT have plans for a 2.5 or 3.0 yet. That says to me that either there will be a 2.5 or perhaps there will be such significant changes to warrant a 3.0. But, as of now, he hasn't even started thinking about it.
When Sun went from Solaris 2.6 to Solaris 7, one of their reasons was that they never ever had any plans to make anything that would be called Solaris 3, and the "2." was therefore just redundant. Linus, OTOH, has not yet ruled out significant changes for a 3.0.
Wait until you see what is discussed for a 3.0 release (if any) before you start worrying too much.
And it is defeatable for about $25 from Radio Shack.
Note that the submission did not have any links to the register and were added by the editor (Timothy). Anything submitted with a register link is robo-killed.
The Dilbert Principal is actually an update to the Peter Principal. They are quite different.
The Peter Principal is when someone is promoted until they reach a job that they can't do.
The Dilbert Principal, on the other hand, is the notion of taking the *least* productive engineers and promoting them where they can do the least harm, namely Management.
As the poster describes it, his situation sounds like the Peter Principal. But we only have his side of the story. It may be that management doesn't see him as a good engineer and wants to hire a better engineer and really just wants to promote him to management to make room for the new engineer.
> He is not saying that there is too much choice - he is saying that all of the distros have too much choice.
Does this have something to do with what the definition of "is" is? It's not that there "is" too much, but that they "have" too much? Please clarify.
> Current distros are mashing everything together
First he selected "Linux-Mandrake", which prides itself on having everything and not being the newbie distribution. Then he complains that Debian is more worried about Free software than the newbie market. Duh! Kinda like being surprised that a Republican wants a tax cut.
He most certainly does *not* say that there needs to be a newbie distro. He told all the distros to slim it down.
> his overall viewpoint is accurate.
The overall viewpoint of the ZDnet article, from the catchy headline to the final tag, was "Linux offers too much". There was no moderation, no sense of compromise, no notion of different distributions for different purposes.
> This was all that was being stated.
Then why mention Linux-Mandrake, Debian and SuSE?
Linux-Mandrake started off as a "Redhat doesn't have enough" distribution. And he complains that they have too much for a newbie.
Debian was created on the principals of Free Software. And he complains that newbies don't care about GNU.
No where did he make the sane and rational argument that there should be a *different* distribution geered towards newbies. He never even acknowledged that the distributions he was looking at were marketed to specific audiences. His parting shot was directed at all distributions: slim it down.
> Proposing outlandish solutions instead of reasonable ones
No, *I'm* not proposing this. The ZDnet article is. Read it. The guy's big problem is that there are so many choices. He didn't pick a newbie distribution, he picked a distribution famed for having lots of applications and said they shouldn't have done that! Who's being outlandish? The bottom line is that the author's solution is to eliminate all the choices.
> It is just one obvious solution that any distribution could choose its own default applications
But that already happens. For the most part, you can usually choose something like "Server" or "Workstation" and a bunch of defaults are selected. Under Debian for example, you are *not* forced to decide whether or not to install every single package. In many cases, multiple things that do the same thing (mail clients, for example) get installed by default. Debian has a ranking system in the mime-package to determine what the defaults are. Having several popular mail clients installed by default is a bonus. You can try a new one without going back to your installer.
I'm *not* saying that there aren't things that can be done to help Linux on the Desktop, I'm just saying that this crap from ZDnet is nonsense. The author noticed that there's a lot of apps under Linux (used to be that there weren't any), and so he came up with this hook that "there's too much!"
And so is his conclusion that there needs to be a Newbie distribution? No, he wants *all* distributions to get rid of all these choices. He wants Debian to forget about the whole Free Software/GNU thing and concentrate exclusively on the Lowest Common Denominator.
Incidentally, there is a Jacl (Tcl (not Tk) implemented in Java). Nice for testing your java stuff or adding a scripting language to your java app.
> "He gave them a challenge, probably thinking they couldn't do it and didn't think of the ramifications of what might happen if they did do it."
Reminds me of last weeks South Park. Kyle wanted to go to a concert, but was told he'd have to clean his room, shovel the driveway, and end Communism in Cuba. When Castro announced that a little boy in South Park convinced him to end communism, his parents said he still couldn't go to the concert.
I think the kid should not only have the suspension lifted, I also think the teacher should pay the kid the reward that he was promised.
I've installed linux on a few machines and I was never *forced* to choose, at install time, one thing or another. Many apps have competing implementations installed. If you install Netscape Communicator, you've got an email client. Should you *not* include any other email client?
This guy is complaining that, once you've installed it, you might have to pick an email client from the menu and that would be too confusing. Frankly, I think it would confuse a newbie more if he had to go back to the installer everytime he wanted to try a common alternative.
> So why is it that your microscopic mind came up with the idea that "delete" is the only solution to making things simpler?
To quote from the article: "But big Linux distributions packed with thousands of apps are likely to leave the average desktop user dazed and confused."
I've installed Debian which, I believe, has the most packages. They are not (and can not) all be installed at the same time. Not that Debian is even aimed at the newbie market or that newbies should be thinking of using it, but the author is complaining that a distribution *exists* with thousands of apps.
No matter what great distribution you come up with, he can still claim that Linux is no good on the Desktop because Debian's got too much stuff.
Another problem that I can imagine Linux having on the desktop is that users like the same thing on their desk at home and work. But what if your office chooses Redhat Desktop Distribution and you chose Debian Desktop Distribution for home. You probably aren't (nor should you be) root on your work machine, and since only KDE was installed, you'd better go back and add KDE to your home machine.
And he goes further:
"The way I see it, for Linux to become a viable desktop platform, it needs to slim down and streamline its offerings."
He doesn't say "default options," he says "offerings".
This still boils down to OEM installation.
Yes, we could probably get a few more users if the install were easier and didn't make them choose stuff. But it's still a hell of a lot harder than just buying a machine with everything on it. All the people that would be helped by eliminating choice would be helped even more if the machine just came installed. They wouldn't have to make any choices at all!
> Everything the article said was valid and should be heard
So you honestly believe that we need to agree an a single email client and everyone should be expected to use that one client? Expecting a user to choose his email client, after all, is just expecting too much of them.
Aside from a few ease-of-installation issues (which, in general, should be solved by OEM-installation), the majority of the article was basically saying that there are too many choices and too much software.
So how do you propose Debian, solve this problem? Delete all-but-one email client, browser, hex editor, text editor, etc. I guess it would settle the KDE/Gnome holly-war once and for all, as one or the other would be forced into extermination (for the good of Linux). The divided vi users had better all agree on a single flavor (elvis, vim, nvi, etc) lest they be ousted by the stronger emacs/xemacs faction. But one way or another, there's no room for a vi and and emacs. Better still to oust them both and replace them with a notepad clone.
It's just silly. The strength of *nix is that pieces are small, interoperable, and interchangeable. And MTA is an MTA, and one can replace another. Some might be fine with a simple, easy to configure MTA, but others might need more complex options.
Should exim be the One True solution? If the big standardization purge came a few years ago, a program like exim would have been verbotten as it did something that was already being done, and we wouldn't want to confuse newbies by introducing a choice.
I've always liked the bi-cameral legislature that I read proposed in one of Heinlein's books (probably _Moon is a Harsh Mistress_):
One body passes laws (requires 2/3 majority).
The other body repeals laws (simple majority).
Get the PalmVNC vncviewer to display your X11 stuff.
I took a Pascal version in 1987... Scored a 5, but haven't used Pascal since.
I remember writing papers in College for Calculus and econ using a Kaypro, a dot-matrix printer, and WordStar.
I had to create a few characters that weren't built-in (like a triangle for a delta, integrals, etc). You'd have to map out your character on a 8x8 piece of paper and then calculate the binary values for each row (or was it by column?), convert to decimal (hex?), and define the character with some obscure dot command in WordStar. You could then use Control-q and some other characters to print your own characters.
Not quite WYSIWYG, but a lot of fun.
Well, a lawyers job is also to advise his clients on the merits of their case. I see 3 likely scenarios:
K&K tells DC and BT that their claims are meritless, unenforceable, laughable, and likely to result in nothing but hefty fees payable to K&K. The clients insist K&K pursue the case anyways. It could happen. Since DC came up with this whole CueCat idea (and the infomercial) w/out thinking very far ahead, it seems plausible that they would be too stupid to listen to their lawyers. BT could expect a loss, but be gambling that a win would mean mega-bucks and worth the gamble.
or
K&K honestly and truly believe that base-64+XOR and hyperlinks are patentable, and advised their clients to pursue their cases. If you believe one is IP, it's not too far of a jump to believe the other. Makes you pity their clients...
or
K&K know how silly this all is, but they get paid either way and misrepresent the cases to their clients. I like to "assume stupidity over malice," and looking at their letters and non-responses to the CueCat sites makes me strongly suspect stupidity.
BT is using the law firm of Kenyon & Kenyon, which /. readers ought to remember as the lawyers who sent out C&D's to CueCat web sites.