One thing you can be sure of is that Netflix and Blockbuster are NOT paying retail. They are not going down to the local Best Buy and purchasing 1000 copies of some movie. Unless you have some info to the contrary, we don't know anything about their arrangement with the studios. It could be that they get the disks for free, and pay the studios a fee every time a disk goes out. Since they are also able to offer movies on-line, they obviously have some arrangement other than 'buy a retail disk'.
What exactly is wrong with that? It's called defining your terms, and is quite common in legal documents. I would much rather read a document that had terms defined like that at the beginning than one that was full of do/did, each/every, thing(s), and/or, any/all... "Did/do you ship any/all games(s) and/or movie(s)?"
General Talking Pictures (now General Cinema) is/was not a manufacturer, it is an operator of movie theaters - an end user of amplification equipment. The manufacturer was The Transformer Company. The Transformer Company had a license to make stuff for the consumer market ONLY. GTP (the end user) purchased equipment from TTC and used it in a commercial environment. AT&T sued them and won. I don't see how you can say that is any different than a commercial movie producer buying a Canon camera from Best Buy.
The Supreme Court held that a patent holder CAN have different licenses by field-of-use (home vs commercial) and that exhaustion does NOT apply if used in a different field (eg buy a consumer camera and use it commercially).
Lastly, all this applies only to COMMERCIAL users. If you look at the MPEG-LA fee structure, you will see that the fee is 2% of wholesale price, or $0.02, whichever is lower, for every copy sold. So if you are giving away stuff for free, it doesn't apply. If you sell 1000 copies, you owe them a max of $20. You probably need to sell at least 100,000 copies for them even to know you exist. If your business is at the point where you are selling 100,000 copies, it is time to act like a real business, and not hide behind consumer protection rules (like it didn't say so on the box). You are not a consumer. You need to know the rules and requirements that apply to you.
The buyer CAN use it for commercial purposes. There is no restriction on what you can do with the camera. However, IF you are creating commercial video that uses H.264, you need a license - not for the camera, but for the H.264 encryption.
Now, as for why the camera doesn't come with a license for commercial use of H.264 - no-one would want it. The important point which everyone seems to be missing is that you don't need a license PER CAMERA, you need a license to commercially use H.264. So if you are a commercial video producer you go to MPEG-LA and negotiate a license. That license covers ALL your equipment. So let's say a royalty-free H.264 license costs $1M. Do you really want to pay $1M extra on every camera you buy? Of course not. Even worse would be a royalty-based license. If the license was tied to a camera you would need to account for every camera used in every video, and send a royalty payment to Canon.
No, that case has very little to do with this case. In the case you referenced, LG licensed some patents to Intel for use in some chipset, but then tried to put the restriction on that said you could not use the chips in a computer without buying a license. The court found that there was no non-infringing use of the patent if you couldn't put the chips in a computer, so it struck down that restriction.
In this case, millions of home users of cameras clearly demonstrate that there IS non-infringing use, even with the restriction.
A more appropriate case is General Talking Pictures Corp vs Western Electric . In that case, a patent holder (Western Electric) had some patents on vacuum tubes. It licensed those patents to two groups: manufacturers of HOME equipment, and manufacturers of COMMERCIAL equipment. The HOME manufacturers were required to include a notice that the equipment was licensed for home use only. An operator of movie theaters (General Talking Pictures Corp) purchased some equipment from a home manufacturer (The Transformer Company), and used it in movie theaters. Western Electric sued for patent infringement. The case went all the way to the Supreme Court and Western Electric won. According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.”
In other words, a patent holder CAN create separate licenses for commercial and non-commercial use, and you CAN be sued for not having the correct license, and a similar case HAS gone all the way to the Supreme Court.
Nobody is saying that the cameras are not professional quality, or that they may not be used for commercial production. All they are saying is that simply buying a camera does not get you the commercial H.264 license - you need to obtain that license elsewhere. I am sure that the producers of House already have a commercial H.264 license, so they are covered. Note that there are NO restrictions put on the use of the camera - you can use it for whatever you want.
Thanks for the link. However, I think I reached a different conclusion than you. I take it from your posts that you think exhaustion applies in this case, and you are using the LG case to bolster your argument. However, the reason LG failed in their attempt to limit exhaustion was because the court found there was no non-infringing use if exhaustion were not applied.
It seems to me that a more relevant case would be one referenced in that same article: General Talking Pictures Corp vs Western Electric. In that case, the Supreme Court found that a patent holder could distinguish between home and commercial use, and license manufacturers accordingly, as long as there was non-infringing use, and the limitation was communicated to the consumer. In that case, Western Electric licensed some vacuum tube technology to some manufacturers for home use, and others for commercial use. GTP (a commercial user) bought equipment from a home-use licensee and used it commercially, even though they knew they were not allowed to. WE sued and won.
According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.” That seems to be an exact corollary to what MPEG-LA is doing.
(a)Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Now, in most cases (the stuff in your house) the manufacturer has paid the license for you, and so you have a valid license. However, in this case the manufacturer paid for a CONSUMER license, not a commercial license. The consumer license passes to you. This is made clear in the manual. You still do not have a valid COMMERCIAL license, so 'uses without authority' applies.
Patent law says you need a license to use a patented invention. It says nothing about the terms of the license. In this case, apparently MPEG-LA offers two different licenses, one for commercial, and one for non-commercial use. That is not a EULA or anything like that, it is what gives you permission to use the invention.
As for the sales and distribution of your video, that is nothing more than a royalty based license. I don't see what the big complaint is about that. I am sure that if you wanted to you could get them to give you a royalty free license, but you better be prepared to shell out several million dollars first. A royalty based license seems like the fairest of them all. Why should a consumer pay the same rate as a corporation? Why should a mega-media outlet that is going to sell a million copies of a video pay the same as Joe Independent who is lucky to sell a thousand copies? And if you really believe everyone should pay the same price, be prepared for a price that is many times what you are paying now, because your license fees will be subsidizing the mega-corps.
Surely that is only true if the seller has the right to sell the thing in the first place. If the camera manufacturer does not have the right to sell you a camera licensed for commercial use then you don't have a right to use the camera for commercial use, whether you bought a camera it or not. So if you buy a camera for consumer use and use it commercially, MPEG-LA can sue you for infringement. You may have a valid complaint against the manufacturer, but a court is not going to hold a third party (MPEG-LA) responsible for what one party (the manufacturer) of a two-party (you being the other party) transaction did.
As I recall in the Polaroid vs Kodak case, all users of Kodak instant cameras had to immediately stop using them when Kodak lost, because Kodak did not have the right to sell them in the first place, thereby making all users infringers.
Lastly, MPEG-LA is not attempting to restrict the scope of anything. It is not taking away any rights you have (as a EULA might). It is not asking you to agree to anything. It is simply informing you of what you purchased. If you want to make a claim that you didn't know that before your purchase, take it up with the seller (manufacturer).
No, it is not like that at all. That would mean that they are charging for each viewing of a video, which they are not. A more accurate analogy would be that they charged the tire manufacturers for each tire they produce. Which probably is, in fact, exactly what happens.
When dealing with patents, there are basically two kinds of licenses: royalty free, and royalty based. For royalty free licenses, you pay a whole lot of money up front to get the license, then you are in the clear. For royalty based licenses, you pay based on how much you make by using the license. Royalty-free licenses simplify accounting, allow you to keep your production numbers secret, and may save you money in the long run if your product is very successful. But they require a huge outlay up-front, and if your product is not successful, you stand to lose big. Royalty based licenses require more complex accounting, but you can save on the initial outlay, and if your product is not successful you don't lose. Both of these are perfectly valid methods of doing business, and both methods are fair to both the licensor and the licensee.
No, that is not what they are doing. All they are doing is saying 'if you want a license to make commercial works, it will cost you x, if you want to make non-commercial works, it will cost you y'. They are not putting limitations on YOUR product, they are putting limitations on your use of THEIR product. And this is a perfectly valid and normal way of doing business. For instance, look at the difference in cost between leasing space for commercial use, and leasing space for residential use. If you rent residential space and put a business in it, you are going to wind up in court.
The alternative is that everyone, commercial and consumer, pays the same price. Is there any reason why that is any better? Keep in mind that that will most certainly result in an increased price to consumers.
The rules are different for actions against the government than they are for actions against private entities. For example, failure to make car payments vs failure to pay taxes (loss of car vs jail time/very large fine). Failure to show up for work (fired) vs failure to show up for military duty (jailed). Giving away employers secrets (fired, civil suit) vs giving away government secrets (jail, potential death).
Any boy that meets the age requirements can join scouting. There is no discrimination there. However, the scouting programs core values include faith. A boy that does not have faith does not meet the requirements of the program, so he will not advance (he can still be a member). Which brings up the question of why does a boy without faith join a faith-based program or care if he advances in one?
You are entitled to voice your opinion and attempt to influence how it is used. You can do that using your boxes. You are not, however, entitled to decide how the money is used, as you have no legal authority to do so. Otherwise, everyone could just say 'I decide that all the money will be sent to my account'. Doesn't work that way.
He wasn't prosecuted for not talking, he was prosecuted for denying the city access to it's own systems. Have could have prevented that prosecution by talking, but didn't. He also could have prevented prosecution by properly registering the passwords, but didn't do that either. However, there certainly are cases where you can be prosecuted for not talking. For instance, not reporting that you know a crime is planned. Or not filing a tax return.
What does copyright have to do with demanding the source code? Absolutely nothing. I am drinking a non-copyrighted class of Coke right now - does that somehow imply that Coke must give me the recipe? If the purpose of the GPL is to make sure that the source stays open, copyright MUST exist.
Yes, they did know what they were doing, which is why amendment nine says basically that just because SOME rights are specifically listed doesn't mean you don't also have OTHER rights that are not specifically listed. Many of the framers did not want a bill of rights precisely for this reason: they felt that people would make the mistake you do - that the rights specifically listed are somehow superior to other rights.
The problem with this argument is that you misunderstand the whole purpose of copyright. The point of copyright is not to prevent ME from making a profit off YOUR work (although that is an effect), it is to give YOU exclusive rights to YOUR work. So all of your examples are instances of my usurping your rights. Having said that, AFIAK no-one has been sued for downloading a song to their iPod (how would anyone even know you did it). The suits have all been about people distributing other peoples work without permission.
The services around it are profitable when you are not paying to develop the code. Oracle is paying developers of open source code, and is wondering what they get for that.
Businesses do not buy software because it is 'cleverly engineered' or 'good quality'. They buy software because it saves them more money than it costs. So a word processor that costs a few hundred bucks but everyone they hire knows how to use may be better choice than a word processor that is free but has associated training costs or lost productivity.
The idea of the justice system is FAIR treatment for everyone. But that is primarily about things that lead up to and include the trial. There is certainly no consensus on what the purpose of corrections is. Is it simply to punish? Or is it to rehab them so they can become productive members of society? From your comments, I guess you are on the 'just punish' side, and if the person spends his whole life entering and exiting prison that is OK with you. Many people feel it would be far less costly and more beneficial to society and the individual if they didn't keep coming back to prison, and that requires rehab. Rehab is something that needs to be tailored to the individual, and that is what this is attempting to help with.
I am curious as to what your 'ideals' are. Keeping in mind that the software is used to tailor treatment of people AFTER they are convicted, in order to prevent recidivism, what is the objection? Are your ideals such that there should be no individual attempt at rehab? Just give everyone exactly the same sentence and treatment? Because that has been working REAL well.
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One thing you can be sure of is that Netflix and Blockbuster are NOT paying retail. They are not going down to the local Best Buy and purchasing 1000 copies of some movie. Unless you have some info to the contrary, we don't know anything about their arrangement with the studios. It could be that they get the disks for free, and pay the studios a fee every time a disk goes out. Since they are also able to offer movies on-line, they obviously have some arrangement other than 'buy a retail disk'.
What exactly is wrong with that? It's called defining your terms, and is quite common in legal documents. I would much rather read a document that had terms defined like that at the beginning than one that was full of do/did, each/every, thing(s), and/or, any/all ... "Did/do you ship any/all games(s) and/or movie(s)?"
General Talking Pictures (now General Cinema) is/was not a manufacturer, it is an operator of movie theaters - an end user of amplification equipment. The manufacturer was The Transformer Company. The Transformer Company had a license to make stuff for the consumer market ONLY. GTP (the end user) purchased equipment from TTC and used it in a commercial environment. AT&T sued them and won. I don't see how you can say that is any different than a commercial movie producer buying a Canon camera from Best Buy.
The Supreme Court held that a patent holder CAN have different licenses by field-of-use (home vs commercial) and that exhaustion does NOT apply if used in a different field (eg buy a consumer camera and use it commercially).
Lastly, all this applies only to COMMERCIAL users. If you look at the MPEG-LA fee structure, you will see that the fee is 2% of wholesale price, or $0.02, whichever is lower, for every copy sold. So if you are giving away stuff for free, it doesn't apply. If you sell 1000 copies, you owe them a max of $20. You probably need to sell at least 100,000 copies for them even to know you exist. If your business is at the point where you are selling 100,000 copies, it is time to act like a real business, and not hide behind consumer protection rules (like it didn't say so on the box). You are not a consumer. You need to know the rules and requirements that apply to you.
The buyer CAN use it for commercial purposes. There is no restriction on what you can do with the camera. However, IF you are creating commercial video that uses H.264, you need a license - not for the camera, but for the H.264 encryption.
Now, as for why the camera doesn't come with a license for commercial use of H.264 - no-one would want it. The important point which everyone seems to be missing is that you don't need a license PER CAMERA, you need a license to commercially use H.264. So if you are a commercial video producer you go to MPEG-LA and negotiate a license. That license covers ALL your equipment. So let's say a royalty-free H.264 license costs $1M. Do you really want to pay $1M extra on every camera you buy? Of course not. Even worse would be a royalty-based license. If the license was tied to a camera you would need to account for every camera used in every video, and send a royalty payment to Canon.
No, that case has very little to do with this case. In the case you referenced, LG licensed some patents to Intel for use in some chipset, but then tried to put the restriction on that said you could not use the chips in a computer without buying a license. The court found that there was no non-infringing use of the patent if you couldn't put the chips in a computer, so it struck down that restriction.
In this case, millions of home users of cameras clearly demonstrate that there IS non-infringing use, even with the restriction.
A more appropriate case is General Talking Pictures Corp vs Western Electric . In that case, a patent holder (Western Electric) had some patents on vacuum tubes. It licensed those patents to two groups: manufacturers of HOME equipment, and manufacturers of COMMERCIAL equipment. The HOME manufacturers were required to include a notice that the equipment was licensed for home use only. An operator of movie theaters (General Talking Pictures Corp) purchased some equipment from a home manufacturer (The Transformer Company), and used it in movie theaters. Western Electric sued for patent infringement. The case went all the way to the Supreme Court and Western Electric won. According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.”
In other words, a patent holder CAN create separate licenses for commercial and non-commercial use, and you CAN be sued for not having the correct license, and a similar case HAS gone all the way to the Supreme Court.
Nobody is saying that the cameras are not professional quality, or that they may not be used for commercial production. All they are saying is that simply buying a camera does not get you the commercial H.264 license - you need to obtain that license elsewhere. I am sure that the producers of House already have a commercial H.264 license, so they are covered. Note that there are NO restrictions put on the use of the camera - you can use it for whatever you want.
Thanks for the link. However, I think I reached a different conclusion than you. I take it from your posts that you think exhaustion applies in this case, and you are using the LG case to bolster your argument. However, the reason LG failed in their attempt to limit exhaustion was because the court found there was no non-infringing use if exhaustion were not applied.
It seems to me that a more relevant case would be one referenced in that same article: General Talking Pictures Corp vs Western Electric. In that case, the Supreme Court found that a patent holder could distinguish between home and commercial use, and license manufacturers accordingly, as long as there was non-infringing use, and the limitation was communicated to the consumer. In that case, Western Electric licensed some vacuum tube technology to some manufacturers for home use, and others for commercial use. GTP (a commercial user) bought equipment from a home-use licensee and used it commercially, even though they knew they were not allowed to. WE sued and won.
According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.” That seems to be an exact corollary to what MPEG-LA is doing.
35 U.S.C. 271 Infringement of patent.
(a)Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Now, in most cases (the stuff in your house) the manufacturer has paid the license for you, and so you have a valid license. However, in this case the manufacturer paid for a CONSUMER license, not a commercial license. The consumer license passes to you. This is made clear in the manual. You still do not have a valid COMMERCIAL license, so 'uses without authority' applies.
Patent law says you need a license to use a patented invention. It says nothing about the terms of the license. In this case, apparently MPEG-LA offers two different licenses, one for commercial, and one for non-commercial use. That is not a EULA or anything like that, it is what gives you permission to use the invention.
As for the sales and distribution of your video, that is nothing more than a royalty based license. I don't see what the big complaint is about that. I am sure that if you wanted to you could get them to give you a royalty free license, but you better be prepared to shell out several million dollars first. A royalty based license seems like the fairest of them all. Why should a consumer pay the same rate as a corporation? Why should a mega-media outlet that is going to sell a million copies of a video pay the same as Joe Independent who is lucky to sell a thousand copies? And if you really believe everyone should pay the same price, be prepared for a price that is many times what you are paying now, because your license fees will be subsidizing the mega-corps.
Surely that is only true if the seller has the right to sell the thing in the first place. If the camera manufacturer does not have the right to sell you a camera licensed for commercial use then you don't have a right to use the camera for commercial use, whether you bought a camera it or not. So if you buy a camera for consumer use and use it commercially, MPEG-LA can sue you for infringement. You may have a valid complaint against the manufacturer, but a court is not going to hold a third party (MPEG-LA) responsible for what one party (the manufacturer) of a two-party (you being the other party) transaction did.
As I recall in the Polaroid vs Kodak case, all users of Kodak instant cameras had to immediately stop using them when Kodak lost, because Kodak did not have the right to sell them in the first place, thereby making all users infringers.
Lastly, MPEG-LA is not attempting to restrict the scope of anything. It is not taking away any rights you have (as a EULA might). It is not asking you to agree to anything. It is simply informing you of what you purchased. If you want to make a claim that you didn't know that before your purchase, take it up with the seller (manufacturer).
No, it is not like that at all. That would mean that they are charging for each viewing of a video, which they are not. A more accurate analogy would be that they charged the tire manufacturers for each tire they produce. Which probably is, in fact, exactly what happens.
When dealing with patents, there are basically two kinds of licenses: royalty free, and royalty based. For royalty free licenses, you pay a whole lot of money up front to get the license, then you are in the clear. For royalty based licenses, you pay based on how much you make by using the license. Royalty-free licenses simplify accounting, allow you to keep your production numbers secret, and may save you money in the long run if your product is very successful. But they require a huge outlay up-front, and if your product is not successful, you stand to lose big. Royalty based licenses require more complex accounting, but you can save on the initial outlay, and if your product is not successful you don't lose. Both of these are perfectly valid methods of doing business, and both methods are fair to both the licensor and the licensee.
No, that is not what they are doing. All they are doing is saying 'if you want a license to make commercial works, it will cost you x, if you want to make non-commercial works, it will cost you y'. They are not putting limitations on YOUR product, they are putting limitations on your use of THEIR product. And this is a perfectly valid and normal way of doing business. For instance, look at the difference in cost between leasing space for commercial use, and leasing space for residential use. If you rent residential space and put a business in it, you are going to wind up in court.
The alternative is that everyone, commercial and consumer, pays the same price. Is there any reason why that is any better? Keep in mind that that will most certainly result in an increased price to consumers.
The rules are different for actions against the government than they are for actions against private entities. For example, failure to make car payments vs failure to pay taxes (loss of car vs jail time/very large fine). Failure to show up for work (fired) vs failure to show up for military duty (jailed). Giving away employers secrets (fired, civil suit) vs giving away government secrets (jail, potential death).
Any boy that meets the age requirements can join scouting. There is no discrimination there. However, the scouting programs core values include faith. A boy that does not have faith does not meet the requirements of the program, so he will not advance (he can still be a member). Which brings up the question of why does a boy without faith join a faith-based program or care if he advances in one?
You are entitled to voice your opinion and attempt to influence how it is used. You can do that using your boxes. You are not, however, entitled to decide how the money is used, as you have no legal authority to do so. Otherwise, everyone could just say 'I decide that all the money will be sent to my account'. Doesn't work that way.
He wasn't prosecuted for not talking, he was prosecuted for denying the city access to it's own systems. Have could have prevented that prosecution by talking, but didn't. He also could have prevented prosecution by properly registering the passwords, but didn't do that either. However, there certainly are cases where you can be prosecuted for not talking. For instance, not reporting that you know a crime is planned. Or not filing a tax return.
What does copyright have to do with demanding the source code? Absolutely nothing. I am drinking a non-copyrighted class of Coke right now - does that somehow imply that Coke must give me the recipe? If the purpose of the GPL is to make sure that the source stays open, copyright MUST exist.
Yes, they did know what they were doing, which is why amendment nine says basically that just because SOME rights are specifically listed doesn't mean you don't also have OTHER rights that are not specifically listed. Many of the framers did not want a bill of rights precisely for this reason: they felt that people would make the mistake you do - that the rights specifically listed are somehow superior to other rights.
The problem with this argument is that you misunderstand the whole purpose of copyright. The point of copyright is not to prevent ME from making a profit off YOUR work (although that is an effect), it is to give YOU exclusive rights to YOUR work. So all of your examples are instances of my usurping your rights. Having said that, AFIAK no-one has been sued for downloading a song to their iPod (how would anyone even know you did it). The suits have all been about people distributing other peoples work without permission.
I think you're thinking of View-Master. Not sure what it has to do with Yugoslavia though.
Half the cost for zero revenue is a loss, not really what they are looking for. Even zero cost (impossible) for zero revenue is not a profit.
The services around it are profitable when you are not paying to develop the code. Oracle is paying developers of open source code, and is wondering what they get for that.
Businesses do not buy software because it is 'cleverly engineered' or 'good quality'. They buy software because it saves them more money than it costs. So a word processor that costs a few hundred bucks but everyone they hire knows how to use may be better choice than a word processor that is free but has associated training costs or lost productivity.
The idea of the justice system is FAIR treatment for everyone. But that is primarily about things that lead up to and include the trial. There is certainly no consensus on what the purpose of corrections is. Is it simply to punish? Or is it to rehab them so they can become productive members of society? From your comments, I guess you are on the 'just punish' side, and if the person spends his whole life entering and exiting prison that is OK with you. Many people feel it would be far less costly and more beneficial to society and the individual if they didn't keep coming back to prison, and that requires rehab. Rehab is something that needs to be tailored to the individual, and that is what this is attempting to help with.
I am curious as to what your 'ideals' are. Keeping in mind that the software is used to tailor treatment of people AFTER they are convicted, in order to prevent recidivism, what is the objection? Are your ideals such that there should be no individual attempt at rehab? Just give everyone exactly the same sentence and treatment? Because that has been working REAL well.