Whether the software infringes a copyright, as was alleged by mattell has nothing to do with the licensure or distribution of the software. We're talking about two different causes of action.
First, the Court's injunction can only affect the rights of the authors subsequent to entry of the Court's order. It cannot and does not strip them of any rights they had prior to the injunction.
Second, if we assume that the Authors' original license was valid, and that mattell cannot revoke thos licenses, mattell can still pursue the same original causes of action against mirrors that they did against the original authors.
Mattell may not have sewn up their case as tightly as they would have liked when they acquired the rights from the authors, but they have not lost any of the original causes of action that they had. Further, the judge has yet to rule on whether merely mirroring, or linking to cphack constitutes a violation of the injunction by aiding and abetting distribution.
Let's keep the license issue, and the original infringement issues separate.
"In addition, click licenses are basically parts of interstate transport-- an area of judistriction that the state governments cannot control. (If you bought a CA-based program in CA as a CA resident, the state can affect you usually by sales tax, but not other way)."
The above is not exactly true. States are commonly given control over contract law. the Uniform Commercial Code is all state law, not federal. If you sue someone for breach of contract, is is commonly in State Court, not Federal. That is why most complex contracts include a choice of law clause which sets forth which state's law will be applied to any disputes arising under the contract.
The problem is that if UCITA is passed, it will supersede the common law concerning contracts. You are correct that under common law, a contract without any real chance to negotiate terms, or even know what the terms are, is highly suspect. Cases susch as Pro CD v. Zeidenberg (sp?) however, demonstrate that courts are not always denying the enforcability of shrink-wrap or click-wrap licenses.
If UCITA passes in any given state, that state's courts will be bound to honor the contracts formsed under its terms, and barring any constitutional problems will have to enforce them.
Because courts are real reluctant to interfere with private contracts on constitutional grounds, the only chance we may get to challenge this law is before the individual state legislatures.
People seem to be confusing the protection that patents offer with the protections offered by copyright or trade secrets. Patents protect a process or an idea. In order to have patent protection the subject of the patent must be fully documented and publicly available at the patent office. This means that reverse engineering should not be necessary for any product which is covered by patents, because all of the inner workings must be documented. Trade secret, as we all know from the DeCSS debacle, keeps the "how" out of public knowledge, but (theoretically) once the cat is out of the bag, and someone comes across the secret (by proper means) the trade secret protection is lost. Here is the area where people are trying to use trade secret law, combined with contract provisions against reverse engineering to maintain an unprecedented amount of control over intellectual property. Copyright, the third traditional form of IP protects a method of epression. But copyright does not protect the idea behind the expression, only the precise expression that was used. You really need to see an IP lawyer to have him/her identify which forms of protection are currently being asserted over the IP you are working from. Then you can figure out how to complete your project while minimizing the legal consequences.
It is really not all that surprising. Emergency hearings are requested and granted every day when there is some good cause. Since the court already granted the preliminary injunction, it is almost a foregone conclusion that he'll do the same for the source contained in the court file.
What is surprising is that these high-priced corporate lawyers were such absolute morons as to include the very source they were trying to keep private in a court filing. If the judge rules against them, and refuses to seal the records, I predect a very big legal malpractice suit by the DVD CAA against their lawyers. I can think of very few ways to make a trade secret public more effective than including the trade secret in a public record.
The California and New York Preliminary injunctions only apply to those who are defendants named in the suits, and who have been served or given notice of the preliminary injunction. THey are the only ones who are required by the court order to remove DeCSS from their web pages. This does not mean that the MPAA or the DVD CCA will not attempt to take action against others who post the code, but there is not currently a court order proventing anyone other than the Defendants in those suits from posting the code. BTW this is not legal advice. If you are considering mirroring or posting the code you should at least consult with a lawyer in your jurisdiction so that you are at lease aware of all of the possible downsides. Dane Torbenson
Ahhh, but who decides which information is to be classified as XXX and is prosecutable if found outside the.adt domain. We are once again left with some person, or worse yet some committee deciding what speech is prosecutable and what is not. Dane Torbenson
I probably lost my authority to speak as a techie years ago when I changed my major from math to theatre. But as a current lawyer who at least tries to maintain in interest in things technical, I thought I'd point out at least a few of the similarities between the two fields that are not immediately obvious.
I believe that many lawyers / coders operate from a similar mindset. Both are faced with a system which provides (supposedly) fixed boundaries. It is the job of both to engage in a creative thought process, designed to accomplish things within those boundaries which were not thought possible.
In the case of a programmer, thouse boundaries are set by the specifications of the system for which he or she is coding. For the attorney, the boundaries are set by legislatures, precedents, the judge, and the opposing counsel. For each the task is to maximize the result given the condition under which he or she must operate.
The law is not a body of literature which can be memorized and regurgitated to settle the claims of any given case, any more than I could turn myself into a world class programmer simply by learning all of the possible syntax for a given programming language. Both programming and the law are processes which represent the creative application of acquired knowledge in new situations, and the art of working within constraints imposed by forces which you can't control.
I also want to emphasize that knowledge of the law, and legal education prepare one to be a lawyer, but they do not lend any magical authority in philosophical discussions regarding what the law should be. How the law should develop, especially in technologically related areas is an area where techies should have much more involvement, because the legislators who are writing the laws frequently have no idea what the long term consequences of their actions will be.
There really need not be the techie / lawyer gap which seems to pervade the postings in this topic. Lawyers and programmers are employed because they know how to use a given system to reach a given result for their client. I could tell you how my software 'should' operate, but it is going to take a techie to get it to work that way. You can tell me what the result 'should' be in your legal case, but having a lawyer working with you will greatly increase you chances of bringing that result about .
Creative problem solving within limits is the core of both good lawyering and good coding. We have more in common than you think.
Slashdot Mirror
Whether the software infringes a copyright, as was alleged by mattell has nothing to do with the licensure or distribution of the software. We're talking about two different causes of action.
First, the Court's injunction can only affect the rights of the authors subsequent to entry of the Court's order. It cannot and does not strip them of any rights they had prior to the injunction.
Second, if we assume that the Authors' original license was valid, and that mattell cannot revoke thos licenses, mattell can still pursue the same original causes of action against mirrors that they did against the original authors.
Mattell may not have sewn up their case as tightly as they would have liked when they acquired the rights from the authors, but they have not lost any of the original causes of action that they had. Further, the judge has yet to rule on whether merely mirroring, or linking to cphack constitutes a violation of the injunction by aiding and abetting distribution.
Let's keep the license issue, and the original infringement issues separate.
Dane Torbenson
"In addition, click licenses are basically parts of interstate transport-- an area of judistriction that the state governments cannot control. (If you bought a CA-based program in CA as a CA resident, the state can affect you usually by sales tax, but not other way)."
The above is not exactly true. States are commonly given control over contract law. the Uniform Commercial Code is all state law, not federal. If you sue someone for breach of contract, is is commonly in State Court, not Federal. That is why most complex contracts include a choice of law clause which sets forth which state's law will be applied to any disputes arising under the contract.
Dane Torbenson
The problem is that if UCITA is passed, it will supersede the common law concerning contracts. You are correct that under common law, a contract without any real chance to negotiate terms, or even know what the terms are, is highly suspect. Cases susch as Pro CD v. Zeidenberg (sp?) however, demonstrate that courts are not always denying the enforcability of shrink-wrap or click-wrap licenses.
If UCITA passes in any given state, that state's courts will be bound to honor the contracts formsed under its terms, and barring any constitutional problems will have to enforce them.
Because courts are real reluctant to interfere with private contracts on constitutional grounds, the only chance we may get to challenge this law is before the individual state legislatures.
Don't wait to fight this battle!
Dane Torbenson
People seem to be confusing the protection that patents offer with the protections offered by copyright or trade secrets.
Patents protect a process or an idea. In order to have patent protection the subject of the patent must be fully documented and publicly available at the patent office. This means that reverse engineering should not be necessary for any product which is covered by patents, because all of the inner workings must be documented.
Trade secret, as we all know from the DeCSS debacle, keeps the "how" out of public knowledge, but (theoretically) once the cat is out of the bag, and someone comes across the secret (by proper means) the trade secret protection is lost. Here is the area where people are trying to use trade secret law, combined with contract provisions against reverse engineering to maintain an unprecedented amount of control over intellectual property.
Copyright, the third traditional form of IP protects a method of epression. But copyright does not protect the idea behind the expression, only the precise expression that was used.
You really need to see an IP lawyer to have him/her identify which forms of protection are currently being asserted over the IP you are working from. Then you can figure out how to complete your project while minimizing the legal consequences.
Dane Torbenson
It is really not all that surprising. Emergency hearings are requested and granted every day when there is some good cause. Since the court already granted the preliminary injunction, it is almost a foregone conclusion that he'll do the same for the source contained in the court file.
What is surprising is that these high-priced corporate lawyers were such absolute morons as to include the very source they were trying to keep private in a court filing. If the judge rules against them, and refuses to seal the records, I predect a very big legal malpractice suit by the DVD CAA against their lawyers. I can think of very few ways to make a trade secret public more effective than including the trade secret in a public record.
It just boggles the mind.
Dane Torbenson
The California and New York Preliminary injunctions only apply to those who are defendants named in the suits, and who have been served or given notice of the preliminary injunction. THey are the only ones who are required by the court order to remove DeCSS from their web pages. This does not mean that the MPAA or the DVD CCA will not attempt to take action against others who post the code, but there is not currently a court order proventing anyone other than the Defendants in those suits from posting the code. BTW this is not legal advice. If you are considering mirroring or posting the code you should at least consult with a lawyer in your jurisdiction so that you are at lease aware of all of the possible downsides. Dane Torbenson
Ahhh, but who decides which information is to be classified as XXX and is prosecutable if found outside the .adt domain. We are once again left with some person, or worse yet some committee deciding what speech is prosecutable and what is not. Dane Torbenson
I probably lost my authority to speak as a techie years ago when I changed my major from math to theatre. But as a current lawyer who at least tries to maintain in interest in things technical, I thought I'd point out at least a few of the similarities between the two fields that are not immediately obvious.
I believe that many lawyers / coders operate from a similar mindset. Both are faced with a system which provides (supposedly) fixed boundaries. It is the job of both to engage in a creative thought process, designed to accomplish things within those boundaries which were not thought possible.
In the case of a programmer, thouse boundaries are set by the specifications of the system for which he or she is coding. For the attorney, the boundaries are set by legislatures, precedents, the judge, and the opposing counsel. For each the task is to maximize the result given the condition under which he or she must operate.
The law is not a body of literature which can be memorized and regurgitated to settle the claims of any given case, any more than I could turn myself into a world class programmer simply by learning all of the possible syntax for a given programming language. Both programming and the law are processes which represent the creative application of acquired knowledge in new situations, and the art of working within constraints imposed by forces which you can't control.
I also want to emphasize that knowledge of the law, and legal education prepare one to be a lawyer, but they do not lend any magical authority in philosophical discussions regarding what the law should be. How the law should develop, especially in technologically related areas is an area where techies should have much more involvement, because the legislators who are writing the laws frequently have no idea what the long term consequences of their actions will be.
There really need not be the techie / lawyer gap which seems to pervade the postings in this topic. Lawyers and programmers are employed because they know how to use a given system to reach a given result for their client. I could tell you how my software 'should' operate, but it is going to take a techie to get it to work that way. You can tell me what the result 'should' be in your legal case, but having a lawyer working with you will greatly increase you chances of bringing that result about .
Creative problem solving within limits is the core of both good lawyering and good coding. We have more in common than you think.
Hack the Law!
Dane Torbenson