That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!
There is. It has to do with ensuring that when Microsoft, IBM, HP, and other Big Tech megacorps see inventions from legitimate individual inventors, the megacorps can indiscriminately steal the inventions and then label the inventors "patent trolls" if they get sued. This is not a case of throwing the baby out with the bathwater. This is a case of shoving the baby down the drain and accidentally letting some bathwater slip down with it. And it's been in the works for a long time.
If you don't believe me, remember that USPTO director John Dudas is a Bush stooge appointed for his loyalty over his qualifications. In the end, this is still about protecting those who make the right donations to the right politicians. Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.
I think what a lot of people really have a problem with is obvious software patents. They get bothered because somebody got a patent issued on "doing some really well-known thing ON A COMPUTER--now I want my $100 million." I see less resistance to patents on truly innovative software methods. KSR has actually already done a lot to address that concern.
I'm not even sure holyfreakingshit covers it. Its the patent office doing something nonbraindead. That itself is almost enough to make one believe in God.
Rest assured that the patent office is as brain dead as ever. They may incidentally let some bathwater slip down the drain, but they're shoving the baby down as fast as the courts will let them. It's kind of ironic that all the Bush haters on Slashdot suddenly think his appointed tools in the patent office are so awesome when their pro-big-business reforms manage to snag a few problematic things too.
John Dudas is not even statutorily qualified to serve as director of the PTO. Under his direction, there has been a big push at the patent office recently to make it nearly impossible to get valuable patents (meaning patents with legitimate claims that will survive a court battle and that could be found to be infringed). This is to ensure that megacorps who contribute to the right politicians can steal inventions with impunity. The Dudas patent office is all about the death of the individual inventor and centralization of all invention with big, monied corporations that have extensive R&D departments and can afford to file patent applications by the dozens. Why the Slashdot crowd would be in favor of this is a actually a mystery to me. I assume it's simply because the lobbyists have done a great job of overinflating the (real but not nearly as big as they want you to think) problem of "patent trolls" while hiding the many instances of legitimate inventions being infringed.
The Supreme Court, composed of people who don't have to answer to lobbyists, is already showing an inclination to reign in the more absurd patents. In my opinion, eBay and KSR did a good job of reminding the Federal Circuit that fact questions like injunctions and obviousness should be evaluated on an individual basis rather than being forced into rigid frameworks. The Federal Circuit itself recently ruled that a "signal" is not patentable subject matter. Personally, I don't see the need for Dudas's brand of IBM/Microsoft/HP-sponsored "reform."
And what sick individual would want to keep anyone - no matter how bad they lived - in eternal torment? A bit like ripping wings off mosquitoes then reattaching them to do it all over again, and again, and again.
Well, the basic point is that God doesn't want to send anyone to Hell. He'd rather everybody be with Him (and in the Mormon concept of Heaven, you're actually pretty busy--no playing harps and staring at clouds). But there are fundamental laws that even God does not change. When God gives commandments, it's not on a whim of what pleases Him. It's based on His knowledge of what enables us to receive the best reward according tot hose fundamental laws. And those laws require that each person be wherever he is fit to be. Some (again, very few) people make choices that mean they are unable to live anywhere else. Basically, they'd be more miserable in a "happy" place where they don't belong.
You can believe it or not, but the premise is actually pretty reasonable. I have kids, and I make rules for them not because I like to be arbitrary, but because I have some concept of what I believe will help them be good, productive, contributing members of society. If God knows everything, it makes sense that He would clue us in to some good ideas.
I can't speak for "most fundamentalists of any stripe," but I am a Mormon, and I have often seen the Church of Jesus Christ of Latter-Day Saints maligned on places like Slashdot (as recently as the responses to this article). So let me throw a wrench in your smug self satisfaction. Mormons don't believe that "all unbelievers will burn equally well in hell." One of the express teachings of the Church (and one for which we are sometimes maligned by other Christians) is a gradation in the afterlife, and that God will basically give you every possible chance in this life or later to do what you should, and then rewards every man with basically the best place he qualifies himself for. In fact, the traditional notion of "Hell" (meaning a place of never-ending torment and suffering) is, in our belief system, a very sparsely populated place indeed (for example, it is unlikely that even Adolf Hitler or Osama bin Laden qualify). We believe that the great majority of people will receive some degree of glory from God, and even the lowest of those will be a major improvement on where we live now (for example, gas will cost only $0.89/gallon) (just kidding; God uses all solar power).
So pagans, atheists, infidels, and smug God-mocking slashdotters, cheer up! Mormons think you're going to be in relatively good shape in the afterlife. Of course, we still believe that God has better setups for those who follow the rules, and we prefer those ones. But God's not out to get you. It's more like you're one of those ornery kids Dad still loves, but you're going to have to get your own place, because you're not bringing those rowdy friends of yours over to my place for poker night.
If you're looking for prior art, you actually want to find something from before Dec. 28, 2000. If it's in that year in between, technically you've just got an interference situation. If it's before Dec. 28, 2000, the patent is unquestionably dead. And yes, the broadest claims look like they read on any list in a database. But you want to kill the dependent claims too, which is not as easy.
If you find prior art and you really want to be a good samaritan, you can always request an ex parte reexamination.
That is trademark case, not a patent case (also, it was in the Netherlands, so that's the only place it would apply). In the U.S., patents currently last for 20 years from the filing date. Legos have been around much longer than that, so the basic design is in the public domain.
Also, the reasoning in the case you cited looks like it would be questionable at best under U.S. Trademark law. The interlocking mechanism is functional, so once the patent expires, your competitors are not required to select a different mechanism. If you want trademark protection, mark the packaging or the blocks themselves with a non-functional identifier. So in the U.S., you're probably good to make Lego knock-offs. It just comes down to an economic question.
In case you have.sigs turned off: This post is not legal advice. Don't rely on it for any reason.
Why is it that nobody seems to understand that the DoJ is an executive agency, therefore an extension of the President. There is no "politicizing" DoJ. It is inherently a political agency. Its purpose is to carry out the President's policy.
Seriously, there are lots of legitimate problems with e-voting (though this particular story seems to be long on speculation and alarm). Why does it need to be a (wholly irrelevant) Bush hate-fest? That just obscures the real problems and makes it look like opponents of e-voting are party hacks for the Democrats.
Hmm... but bluntly, not really a good one if you ask me...
I don't know about that. Look at what it did for demand for XP. Remember New Coke/Old Coke? Maybe that was the master plan. Sell a product that is so bad, people are begging for the old stuff.
Microsoft succeded the same way McDonald's did---sell a bland, familiar, mediocre product in huge volumes at a low-ish but profitable price (this worked for PCs because it's bundled; home users would not have actually paid for Windows). Really, there's no big secret here. The same model works very well for Wal-Mart and Ikea too. It's hard to get those obnoxiously-high volumes if you try to sell on quality and overall value.
I think this is part of Vista's problem. It's still low to mediocre quality, but no longer bland and familiar. It's like McDonald's suddenly trying to get people to buy $12 steaks.
I used to work on parts for high-reliability military systems, and this was a very real concern. No, nobody required us to use Pb-free, but that's all we could get from many suppliers. And they did indeed cause problems. We had several failures of parts that could be traced directly to shorts caused by tin whiskers. And even worse, as the blurb points out, you can't really predict them with accelerated life testing. This was for stuff that was designed to basically sit and "be ready" for its entire useful life, so there was plenty of opportunity for whiskers to just sit there and grow. This stuff was the bane of my existence.
if AT&T does this, they've seriously made me look at them in a whole new light.
For my part, AT&T could build my dear mother a gilded mansion, buy my wife her very own Merle Norman franchise, and build no-kill puppy shelters in every single city in the United States, and I would still think they're a bunch of croooks and assume that they're up to something. But YMMV.
I'm sorry, you must have thought you were posting on patently-O, where people believe there are valid patents. On Slashdot, the assumption is that all patents are invalid and all patent litigation is frivolous. Hence, your judge in Chicago deserves a medal.
We seriously need tort reform in this country. That's the real story.
This looks like a silly lawsuit to me, and there certainly are silly lawsuits. But "tort reform" as pushed by Bush and his cronies is not necessarily the answer. In Texas, thanks to tort reform, a physician could literally operate on you totally stoned and maim you for life, and the damages you can recover are so severely capped that it wouldn't be worth it to sue him (meaning it will be hard to get a lawyer to take the case if you can't pay hourly). That's not a bug. That's a feature.
The intended effect of tort reform is to place a controlled value on the variables. Mr. Executive says, "If we do this evil thing [sell a dangerous vehicle or drug, for example], how much money will we make?" Bean counter says, "We will make $300 million and it will maim and/or kill a bunch of people." "How much will the law suits cost us?" Without tort reform, the bean counter has to answer, "I don't know. Juries are unpredictable." But with nice, tidy hard-capped damages, he can answer something like, "Our maximum exposure will be $150 million." "Great! Let's do it!" And we're off.
And lest you think I'm just a bitter litigator who had his livelihood yanked out from under him, I'm not. I am a patent attorney. I don't do personal injury. I hate torts. I've just seen the statutes that were spoon fed to the Texas legislature by the insurance lobby. Tort reform is not your friend if you are not a tortfeasor.
I see I was addressing the wrong misconception. This is getting long enough that I was going to drop it, but I'm afraid somebody may see your post and think he's legally permitted to do what you think you are permitted to do. That could get somebody in trouble, so I'll respond.
All licenses grant some rights and reserve some rights. The copyright owner is not required to provide you a copy of the program. You have no right to make a copy of the program. Your rights to the program are only the minimal rights like fair use that certainly do not reach far enough to entitle you to install the program on your computer and use it. For all practical purposes, the copyright owner has the absolute right to exclude you from making any copies of the program---even temporary copies into memory. That's the default position.
Now the copyright owner may want to provide you a copy of the program. He has a couple of options. He can provide you the copy and assign the entire copyright to you, or he can provide you a copy with some limited rights and reserve the rest to himself. Remember, he's not required to give you a copy, so the terms in the license (plus whatever money you pay) together constitute the consideration you give the copyright owner in exchange for a lawful copy of the program. The lawfulness of your possession of the copy is contingent on your agreement to the license terms, because those are the terms under which the lawful owner of the copyright is willing to provide you a copy. If, in your hypothetical, your cat presses "agree," you are correct that it has no legal significance. But that doesn't mean that you are then free to keep and use the copy free of the license terms. If you thereafter load the program into memory, you have made an illegal copy. Rejecting the contract does not magically grant you unfettered rights in the software. It means you have no rights in it. Not even the right to install it on your computer. Your only right if you repudiate the contract is to demand restitution for the money you paid in partial satisfaction of your part of the bargain.
In other words, the copyright owner sells you a copy for a price, P = $+A, where $ is the purchase price and A is your agreement to the license terms. If you do not remit the full P, then you are not legally entitled to copy the software anywhere---not to your hard disk, not into RAM, not for backup. That's why I said your distinction between "giving" and "taking away" rights doesn't matter. Your baseline position is you have no rights at all until the copyright owner gives you some. Section 117 just defines a right you have if you lawfully acquire a copy with no additional agreement. If I sell you a copy of software with no conditions, section 117 says you implicitly have the right to make backups and copies into RAM because those are necessary to use your copy. Without section 117, you wouldn't even have that right. You would be the lawful possessor of optical media containing bits you could not so much as read into memory. The question that courts have addressed is to what extent a contract is enforceable. They have asked whether some terms are so onerous that they are unconscionable or contrary to Federal copyright policy. The closest thing to what you propose is cases where the work itself is inherently not copyrightable (e.g., a list of phone numbers), in which case some courts have held that you cannot contract to create a pseudo-copyright, therefore the non-copyrightable work may be freely copied. If you know of a case where a court has decided what you propose (if the licensee doesn't agree to the license, he gets unfettered access to the work), I will certainly be surprised, but I'd very much like to see it.
DISCLAIMER: This post is not legal advice to Mr2001 or anybody else and should not be relied on by anybody for any reason.
Has a court actually ever found that a person who purchased a copy of software is not the "owner" under 17 USC 117, or is this just speculation?
The answer, of course, is I said "a court may find" because I don't know of any case directly on point. But most EULAs will say that the software is "licensed" to you, not "sold" to you, which implies that the licensor is not intending to transfer to you ownership of the copy. I suspect that you could find courts that would go either way on this. The only case I have at hand that deals with section 117 is Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). It actually tends more towards your point of view---section 117 does not permit a copy into RAM only for the "intended" purpose (the defendant reverse engineered a disk-locking program to make software the unlocks the disks). But without spending a lot of time re-reading it, I don't think that the contract purported to restrict reverse engineering. So (again, if I remember correctly), it was more of a vague assertion that there was an implied duty to use it for its intended purpose. Also, the case is 20 years old, so there may be later cases that go a different way. If you have a friend who is a law student with free Westlaw access, ask him or her to Key Cite it and see what you come up with (and if you do, by all means, let me know what you come up with; I'd be interested too). Also, look at Altera Corp v. Clear Logic, Inc., 424 F.3d 1079 (9th Cuir. 2005). Again, not directly on point, but in this case, the court upheld restrictions on authorized uses of the program that were explicitly in the license.
I haven't seen any cases where the court distinguishes between a contract that gives you "extra" rights vs. a contract that "takes away" rights. I don't think there's a difference. In either case, you are granting a licensee less than the entire interest in the work. And any license will "take away" certain rights. The GPL, for example, purports to attach itself to code that dynamically links to the GPL software. It is actually a very far-reaching license in terms of its intending to attach to anything it touches. That would be upheld by a court that abides a strong contract theory, but courts that prefer strong copyright policy might not like it.
In any case, most court cases just focus on whether the contract is valid. If it is, they uphold its terms, whatever they are. If it isn't, they do a preemption analysis to decide which terms are preempted by copyright law.
Cases that found no preemption: 478 F. Supp. 2d 1240; 320 F.3d 1317; 893 F.2d 1488; Those will also have long string cites to cases that found no preemption.
There are also cases that have found contracts preempted. Tavormina v. Evening Star Prods., Inc, 10 F. Supp. 2d 729 (S.D. Tex. 1998); Am. Movie Classics v. Turner Entm't, 922 F. Supp. 926 (S.D.N.Y. 1996).
The point: This area of law could go either way, depending on what court you're in. But Blizzard's argument is neither novel nor terribly onerous in light of the state of the law.
DISCLAIMER AGAIN: I don't represent anybody here. This is not a legal opinion. Do not rely on it for any reason or purpose whatsoever.
It's incorrect to say "under copyright, you don't have a right to make any copies". Fair use is one case,
Yes, there are some exceptions to every law, but a post on Slashdot is not intended to be a copyright Treatise. If you copy the entire work for commercial gain, fair use won't help you. Since MDY needed a complete copy of the game to develop their commercial application, they did not have an inherent right to make any copies, if you prefer to hear it that way. The result is the same.
and this is another: you don't need a license in order to make incidental copies that are necessary for running a program.
Specifically, according to 17 USC 117(a)(1), "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided... that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner".
If you have purchased a copy of the program under a license that limits your rights, then you have purchased less than the entire interest in your copy. A court may find that you are not actually the "owner" of that copy. If the contract says you can only load copies in to RAM as long as you abide by the terms of the license, like I said in my first post, many courts will uphold that agreement (I also pointed out that some may not, but I think they are in the minority). Courts that follow this line treat copyright somewhat like the Uniform Commercial Code---a set of rules that will govern the parties' rights as to each other unless they agree otherwise. Again, I'm not saying this is right or wrong. I'm just saying that's the way it is, so Blizzard's argument is neither terribly novel nor terribly far reaching under the current law. And the only reliable way to change it is to amend the copyright act.
eison disagress != FUD. eison doesn't like the law != FUD.
The GPL is a contract, just like the Blizzard EULA. They all grant you rights you don't otherwise have, because under copyright, you don't have a right to make any copies. The license gives you the right to make copies under the terms imposed. In the case of the GPL, it is, "You can make copies and give them to other people if you bind them under the same terms." In the case of Blizzard, it is "You can make a copy on your computer and copies into RAM as long as you don't use a playbot."
Clickwraps should be totally bogus, for you have already purchased a copy. They rely on some absurd shaky legal garbage that you can't run your program without making another copy into memory, and the purchase doesn't include the right to make that copy.
Again, eison doesn't like it != "shaky legal garbage." This is well-established precedent. If you don't like it, write your Congressman. As for your book analogy, if I sold you a copy of a book with contractual stipulations to only do certain things with that copy, most courts will uphold the contract.
The analogy was used to point out the absurdity of the law and give a moral judgement, not as a legal point. From a moral standpoint I think copyright shouldn't let them do more than other sellers can do. It should allow them to prevent copying (verbatim or less accurately) and allow them to sell easily replicable data for profit, it should not allow them to pull crap like telling people what they can do with their copies (if I got the game legally and have the allowed one installation I should be allowed to apply trainers, cracks, etc as much as I want to that copy without copyright interfering, if they want to do anything they should be required to argue over TOS violations or so). Apparently copyright does not fulfill thse requirements and is thus in need of an overhaul.
Similarly, I shouldn't be able to sell (or give) you a copy of a kernel, and tell you that you can't link proprietary drivers to it. Or if I can, it's the same thing as what Blizzard is doing. The only reason they have any "special" rights to tell the licensee what to do is because the licensee (supposedly) contracted freely for that restriction.
As for EULAs, I think they should be given to the customer in paper at the checkout and require signature there. Sure, it's impractical and annoying but forcing the customer to jump through hoops shouldn't come without a cost. Make the customer see he's signing a contract before money changes hands and if he doesn't feel comfortable and bails out you lose the sale.
I think that's a great idea.
Though AFAIK copyright allows by default to install software, if a license violation just terminates the license how does use of the software become infringing?
There is actually some competing case law on how implied rights like being able to install and use the software work, independent of what the license says. In any case, many licenses will require you to surrender your copy, either automatically or on demand, if you breach the agreement. Also, every time you load the program from your hard drive, a copy of it is made in RAM, and that's a copy. So say the cases, and given an opportunity to change that by amendment in the 1978 copyright act, Congress declined. So every time you use it after breaching the agreement, you're making a copy and violating the copyright. I'm not saying this is right or wrong, just saying that's how it is.
Slashdot Mirror
That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!
There is. It has to do with ensuring that when Microsoft, IBM, HP, and other Big Tech megacorps see inventions from legitimate individual inventors, the megacorps can indiscriminately steal the inventions and then label the inventors "patent trolls" if they get sued. This is not a case of throwing the baby out with the bathwater. This is a case of shoving the baby down the drain and accidentally letting some bathwater slip down with it. And it's been in the works for a long time.
If you don't believe me, remember that USPTO director John Dudas is a Bush stooge appointed for his loyalty over his qualifications. In the end, this is still about protecting those who make the right donations to the right politicians. Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.
I think what a lot of people really have a problem with is obvious software patents. They get bothered because somebody got a patent issued on "doing some really well-known thing ON A COMPUTER--now I want my $100 million." I see less resistance to patents on truly innovative software methods. KSR has actually already done a lot to address that concern.
I'm not even sure holyfreakingshit covers it. Its the patent office doing something nonbraindead. That itself is almost enough to make one believe in God.
Rest assured that the patent office is as brain dead as ever. They may incidentally let some bathwater slip down the drain, but they're shoving the baby down as fast as the courts will let them. It's kind of ironic that all the Bush haters on Slashdot suddenly think his appointed tools in the patent office are so awesome when their pro-big-business reforms manage to snag a few problematic things too.
John Dudas is not even statutorily qualified to serve as director of the PTO. Under his direction, there has been a big push at the patent office recently to make it nearly impossible to get valuable patents (meaning patents with legitimate claims that will survive a court battle and that could be found to be infringed). This is to ensure that megacorps who contribute to the right politicians can steal inventions with impunity. The Dudas patent office is all about the death of the individual inventor and centralization of all invention with big, monied corporations that have extensive R&D departments and can afford to file patent applications by the dozens. Why the Slashdot crowd would be in favor of this is a actually a mystery to me. I assume it's simply because the lobbyists have done a great job of overinflating the (real but not nearly as big as they want you to think) problem of "patent trolls" while hiding the many instances of legitimate inventions being infringed.
The Supreme Court, composed of people who don't have to answer to lobbyists, is already showing an inclination to reign in the more absurd patents. In my opinion, eBay and KSR did a good job of reminding the Federal Circuit that fact questions like injunctions and obviousness should be evaluated on an individual basis rather than being forced into rigid frameworks. The Federal Circuit itself recently ruled that a "signal" is not patentable subject matter. Personally, I don't see the need for Dudas's brand of IBM/Microsoft/HP-sponsored "reform."
the very fact that several other people coming up with the same solution ought to be the very definition of "obvious to someone skilled in the arts
Multiple simultaneous invention is actually a factor that can be considered in favor of obviousness.
You've given everything away. I know where the aliens are!
If you're going to bash, at least get your facts straight. Otherwise you just look foolish.
And what sick individual would want to keep anyone - no matter how bad they lived - in eternal torment? A bit like ripping wings off mosquitoes then reattaching them to do it all over again, and again, and again.
Well, the basic point is that God doesn't want to send anyone to Hell. He'd rather everybody be with Him (and in the Mormon concept of Heaven, you're actually pretty busy--no playing harps and staring at clouds). But there are fundamental laws that even God does not change. When God gives commandments, it's not on a whim of what pleases Him. It's based on His knowledge of what enables us to receive the best reward according tot hose fundamental laws. And those laws require that each person be wherever he is fit to be. Some (again, very few) people make choices that mean they are unable to live anywhere else. Basically, they'd be more miserable in a "happy" place where they don't belong.
You can believe it or not, but the premise is actually pretty reasonable. I have kids, and I make rules for them not because I like to be arbitrary, but because I have some concept of what I believe will help them be good, productive, contributing members of society. If God knows everything, it makes sense that He would clue us in to some good ideas.
BTW, do mosquitoes go to hell?
I know I don't want them wherever I am.
I can't speak for "most fundamentalists of any stripe," but I am a Mormon, and I have often seen the Church of Jesus Christ of Latter-Day Saints maligned on places like Slashdot (as recently as the responses to this article). So let me throw a wrench in your smug self satisfaction. Mormons don't believe that "all unbelievers will burn equally well in hell." One of the express teachings of the Church (and one for which we are sometimes maligned by other Christians) is a gradation in the afterlife, and that God will basically give you every possible chance in this life or later to do what you should, and then rewards every man with basically the best place he qualifies himself for. In fact, the traditional notion of "Hell" (meaning a place of never-ending torment and suffering) is, in our belief system, a very sparsely populated place indeed (for example, it is unlikely that even Adolf Hitler or Osama bin Laden qualify). We believe that the great majority of people will receive some degree of glory from God, and even the lowest of those will be a major improvement on where we live now (for example, gas will cost only $0.89/gallon) (just kidding; God uses all solar power).
So pagans, atheists, infidels, and smug God-mocking slashdotters, cheer up! Mormons think you're going to be in relatively good shape in the afterlife. Of course, we still believe that God has better setups for those who follow the rules, and we prefer those ones. But God's not out to get you. It's more like you're one of those ornery kids Dad still loves, but you're going to have to get your own place, because you're not bringing those rowdy friends of yours over to my place for poker night.
If you're looking for prior art, you actually want to find something from before Dec. 28, 2000. If it's in that year in between, technically you've just got an interference situation. If it's before Dec. 28, 2000, the patent is unquestionably dead. And yes, the broadest claims look like they read on any list in a database. But you want to kill the dependent claims too, which is not as easy.
If you find prior art and you really want to be a good samaritan, you can always request an ex parte reexamination.
That is trademark case, not a patent case (also, it was in the Netherlands, so that's the only place it would apply). In the U.S., patents currently last for 20 years from the filing date. Legos have been around much longer than that, so the basic design is in the public domain.
Also, the reasoning in the case you cited looks like it would be questionable at best under U.S. Trademark law. The interlocking mechanism is functional, so once the patent expires, your competitors are not required to select a different mechanism. If you want trademark protection, mark the packaging or the blocks themselves with a non-functional identifier. So in the U.S., you're probably good to make Lego knock-offs. It just comes down to an economic question.
In case you have .sigs turned off: This post is not legal advice. Don't rely on it for any reason.
Yes, I'm a lawyer. And since I do patent law, that's pretty much all federal. But you don't have to be a lawyer to read Article II.
Why is it that nobody seems to understand that the DoJ is an executive agency, therefore an extension of the President. There is no "politicizing" DoJ. It is inherently a political agency. Its purpose is to carry out the President's policy.
Seriously, there are lots of legitimate problems with e-voting (though this particular story seems to be long on speculation and alarm). Why does it need to be a (wholly irrelevant) Bush hate-fest? That just obscures the real problems and makes it look like opponents of e-voting are party hacks for the Democrats.
Now that's just crazy talk.
Microsoft succeded the same way McDonald's did---sell a bland, familiar, mediocre product in huge volumes at a low-ish but profitable price (this worked for PCs because it's bundled; home users would not have actually paid for Windows). Really, there's no big secret here. The same model works very well for Wal-Mart and Ikea too. It's hard to get those obnoxiously-high volumes if you try to sell on quality and overall value.
I think this is part of Vista's problem. It's still low to mediocre quality, but no longer bland and familiar. It's like McDonald's suddenly trying to get people to buy $12 steaks.
I used to work on parts for high-reliability military systems, and this was a very real concern. No, nobody required us to use Pb-free, but that's all we could get from many suppliers. And they did indeed cause problems. We had several failures of parts that could be traced directly to shorts caused by tin whiskers. And even worse, as the blurb points out, you can't really predict them with accelerated life testing. This was for stuff that was designed to basically sit and "be ready" for its entire useful life, so there was plenty of opportunity for whiskers to just sit there and grow. This stuff was the bane of my existence.
I'm sorry, you must have thought you were posting on patently-O, where people believe there are valid patents. On Slashdot, the assumption is that all patents are invalid and all patent litigation is frivolous. Hence, your judge in Chicago deserves a medal.
This looks like a silly lawsuit to me, and there certainly are silly lawsuits. But "tort reform" as pushed by Bush and his cronies is not necessarily the answer. In Texas, thanks to tort reform, a physician could literally operate on you totally stoned and maim you for life, and the damages you can recover are so severely capped that it wouldn't be worth it to sue him (meaning it will be hard to get a lawyer to take the case if you can't pay hourly). That's not a bug. That's a feature.
The intended effect of tort reform is to place a controlled value on the variables. Mr. Executive says, "If we do this evil thing [sell a dangerous vehicle or drug, for example], how much money will we make?" Bean counter says, "We will make $300 million and it will maim and/or kill a bunch of people." "How much will the law suits cost us?" Without tort reform, the bean counter has to answer, "I don't know. Juries are unpredictable." But with nice, tidy hard-capped damages, he can answer something like, "Our maximum exposure will be $150 million." "Great! Let's do it!" And we're off.
And lest you think I'm just a bitter litigator who had his livelihood yanked out from under him, I'm not. I am a patent attorney. I don't do personal injury. I hate torts. I've just seen the statutes that were spoon fed to the Texas legislature by the insurance lobby. Tort reform is not your friend if you are not a tortfeasor.
I see I was addressing the wrong misconception. This is getting long enough that I was going to drop it, but I'm afraid somebody may see your post and think he's legally permitted to do what you think you are permitted to do. That could get somebody in trouble, so I'll respond.
All licenses grant some rights and reserve some rights. The copyright owner is not required to provide you a copy of the program. You have no right to make a copy of the program. Your rights to the program are only the minimal rights like fair use that certainly do not reach far enough to entitle you to install the program on your computer and use it. For all practical purposes, the copyright owner has the absolute right to exclude you from making any copies of the program---even temporary copies into memory. That's the default position.
Now the copyright owner may want to provide you a copy of the program. He has a couple of options. He can provide you the copy and assign the entire copyright to you, or he can provide you a copy with some limited rights and reserve the rest to himself. Remember, he's not required to give you a copy, so the terms in the license (plus whatever money you pay) together constitute the consideration you give the copyright owner in exchange for a lawful copy of the program. The lawfulness of your possession of the copy is contingent on your agreement to the license terms, because those are the terms under which the lawful owner of the copyright is willing to provide you a copy. If, in your hypothetical, your cat presses "agree," you are correct that it has no legal significance. But that doesn't mean that you are then free to keep and use the copy free of the license terms. If you thereafter load the program into memory, you have made an illegal copy. Rejecting the contract does not magically grant you unfettered rights in the software. It means you have no rights in it. Not even the right to install it on your computer. Your only right if you repudiate the contract is to demand restitution for the money you paid in partial satisfaction of your part of the bargain.
In other words, the copyright owner sells you a copy for a price, P = $+A, where $ is the purchase price and A is your agreement to the license terms. If you do not remit the full P, then you are not legally entitled to copy the software anywhere---not to your hard disk, not into RAM, not for backup. That's why I said your distinction between "giving" and "taking away" rights doesn't matter. Your baseline position is you have no rights at all until the copyright owner gives you some. Section 117 just defines a right you have if you lawfully acquire a copy with no additional agreement. If I sell you a copy of software with no conditions, section 117 says you implicitly have the right to make backups and copies into RAM because those are necessary to use your copy. Without section 117, you wouldn't even have that right. You would be the lawful possessor of optical media containing bits you could not so much as read into memory. The question that courts have addressed is to what extent a contract is enforceable. They have asked whether some terms are so onerous that they are unconscionable or contrary to Federal copyright policy. The closest thing to what you propose is cases where the work itself is inherently not copyrightable (e.g., a list of phone numbers), in which case some courts have held that you cannot contract to create a pseudo-copyright, therefore the non-copyrightable work may be freely copied. If you know of a case where a court has decided what you propose (if the licensee doesn't agree to the license, he gets unfettered access to the work), I will certainly be surprised, but I'd very much like to see it.
DISCLAIMER: This post is not legal advice to Mr2001 or anybody else and should not be relied on by anybody for any reason.I now have a new .sig!
The answer, of course, is I said "a court may find" because I don't know of any case directly on point. But most EULAs will say that the software is "licensed" to you, not "sold" to you, which implies that the licensor is not intending to transfer to you ownership of the copy. I suspect that you could find courts that would go either way on this. The only case I have at hand that deals with section 117 is Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). It actually tends more towards your point of view---section 117 does not permit a copy into RAM only for the "intended" purpose (the defendant reverse engineered a disk-locking program to make software the unlocks the disks). But without spending a lot of time re-reading it, I don't think that the contract purported to restrict reverse engineering. So (again, if I remember correctly), it was more of a vague assertion that there was an implied duty to use it for its intended purpose. Also, the case is 20 years old, so there may be later cases that go a different way. If you have a friend who is a law student with free Westlaw access, ask him or her to Key Cite it and see what you come up with (and if you do, by all means, let me know what you come up with; I'd be interested too). Also, look at Altera Corp v. Clear Logic, Inc., 424 F.3d 1079 (9th Cuir. 2005). Again, not directly on point, but in this case, the court upheld restrictions on authorized uses of the program that were explicitly in the license.
I haven't seen any cases where the court distinguishes between a contract that gives you "extra" rights vs. a contract that "takes away" rights. I don't think there's a difference. In either case, you are granting a licensee less than the entire interest in the work. And any license will "take away" certain rights. The GPL, for example, purports to attach itself to code that dynamically links to the GPL software. It is actually a very far-reaching license in terms of its intending to attach to anything it touches. That would be upheld by a court that abides a strong contract theory, but courts that prefer strong copyright policy might not like it.
In any case, most court cases just focus on whether the contract is valid. If it is, they uphold its terms, whatever they are. If it isn't, they do a preemption analysis to decide which terms are preempted by copyright law.
Cases that found no preemption: 478 F. Supp. 2d 1240; 320 F.3d 1317; 893 F.2d 1488; Those will also have long string cites to cases that found no preemption.
There are also cases that have found contracts preempted. Tavormina v. Evening Star Prods., Inc, 10 F. Supp. 2d 729 (S.D. Tex. 1998); Am. Movie Classics v. Turner Entm't, 922 F. Supp. 926 (S.D.N.Y. 1996).
The point: This area of law could go either way, depending on what court you're in. But Blizzard's argument is neither novel nor terribly onerous in light of the state of the law.
DISCLAIMER AGAIN: I don't represent anybody here. This is not a legal opinion. Do not rely on it for any reason or purpose whatsoever.
Yes, there are some exceptions to every law, but a post on Slashdot is not intended to be a copyright Treatise. If you copy the entire work for commercial gain, fair use won't help you. Since MDY needed a complete copy of the game to develop their commercial application, they did not have an inherent right to make any copies, if you prefer to hear it that way. The result is the same.
If you have purchased a copy of the program under a license that limits your rights, then you have purchased less than the entire interest in your copy. A court may find that you are not actually the "owner" of that copy. If the contract says you can only load copies in to RAM as long as you abide by the terms of the license, like I said in my first post, many courts will uphold that agreement (I also pointed out that some may not, but I think they are in the minority). Courts that follow this line treat copyright somewhat like the Uniform Commercial Code---a set of rules that will govern the parties' rights as to each other unless they agree otherwise. Again, I'm not saying this is right or wrong. I'm just saying that's the way it is, so Blizzard's argument is neither terribly novel nor terribly far reaching under the current law. And the only reliable way to change it is to amend the copyright act.
eison disagress != FUD. eison doesn't like the law != FUD.
The GPL is a contract, just like the Blizzard EULA. They all grant you rights you don't otherwise have, because under copyright, you don't have a right to make any copies. The license gives you the right to make copies under the terms imposed. In the case of the GPL, it is, "You can make copies and give them to other people if you bind them under the same terms." In the case of Blizzard, it is "You can make a copy on your computer and copies into RAM as long as you don't use a playbot."
Clickwraps should be totally bogus, for you have already purchased a copy. They rely on some absurd shaky legal garbage that you can't run your program without making another copy into memory, and the purchase doesn't include the right to make that copy.Again, eison doesn't like it != "shaky legal garbage." This is well-established precedent. If you don't like it, write your Congressman. As for your book analogy, if I sold you a copy of a book with contractual stipulations to only do certain things with that copy, most courts will uphold the contract.
The analogy was used to point out the absurdity of the law and give a moral judgement, not as a legal point. From a moral standpoint I think copyright shouldn't let them do more than other sellers can do. It should allow them to prevent copying (verbatim or less accurately) and allow them to sell easily replicable data for profit, it should not allow them to pull crap like telling people what they can do with their copies (if I got the game legally and have the allowed one installation I should be allowed to apply trainers, cracks, etc as much as I want to that copy without copyright interfering, if they want to do anything they should be required to argue over TOS violations or so). Apparently copyright does not fulfill thse requirements and is thus in need of an overhaul.
Similarly, I shouldn't be able to sell (or give) you a copy of a kernel, and tell you that you can't link proprietary drivers to it. Or if I can, it's the same thing as what Blizzard is doing. The only reason they have any "special" rights to tell the licensee what to do is because the licensee (supposedly) contracted freely for that restriction.As for EULAs, I think they should be given to the customer in paper at the checkout and require signature there. Sure, it's impractical and annoying but forcing the customer to jump through hoops shouldn't come without a cost. Make the customer see he's signing a contract before money changes hands and if he doesn't feel comfortable and bails out you lose the sale.
I think that's a great idea.Though AFAIK copyright allows by default to install software, if a license violation just terminates the license how does use of the software become infringing?
There is actually some competing case law on how implied rights like being able to install and use the software work, independent of what the license says. In any case, many licenses will require you to surrender your copy, either automatically or on demand, if you breach the agreement. Also, every time you load the program from your hard drive, a copy of it is made in RAM, and that's a copy. So say the cases, and given an opportunity to change that by amendment in the 1978 copyright act, Congress declined. So every time you use it after breaching the agreement, you're making a copy and violating the copyright. I'm not saying this is right or wrong, just saying that's how it is.
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