I don't think you're interested in the merits or defects of the decision at all. You certainly haven't tendered a cogent defence of it. You simply repeat your view of what the decision states, which is scarcely the point of the discussion, unless you have a peculiarly anti-democratic view that there is no such thing as "good law" and "bad law", there is only "the law" (and then I might expect an exposition on the merits of legal positivism or the like). Consistent with that, your comments seem to betray a bias in favour of literalism and "plain meaning"--although you seem perfectly content to offer a *different* view of the "legislative reasoning" and the "provision's purpose". Your unqualified "plain meaning" approach is inconsistent with the principles of statutory interpretation cited in the decision. Your inferred "legislative reasoning" is in direct conflict with the approach in Tombs (*notwithstanding* the Court's finding to the contrary). Finally, if you intend to be insulting, ensure you're casting intelligent insults. "Amateur jurisprudence"? The phrase is senseless.
Miles, if you are studying or practicing law, stop before you get sued.
If you're in the business of suing anonymous posters on Slashdot on the basis of their comments about binding legal decisions in your jurisdiction, perhaps *you* should quit the business of law.
Distribution is not at issue. The issue is whether the defendant "made" child porn. If he made a warehouse full of it and never distributed or intended to distribute any of it, he still earned 20 years under Michigan law.
You have completely ignored the normative/policy aspect to my introductory comment.
The defendant inarguably increased the amount of child porn in existence...
This illustrates the perversity of attempting to interpret the provision with no sense for its purpose. It may also illustrate why the US has the highest incarceration rate of any democratic nation. Child pornography can only *possibly* cause harm to the child-victims (and perhaps their personal contacts) and arguably its viewers (cognitive dissonance). *Re*production without distribution by someone already in possession cannot possibly exacerbate the offence. This is a pretty clear signal that "reproduction" should not be read into the definition of "production".
Horseshit. "Ejusdem generis" means no such thing, particularly when it would yield such absurd results as equating "creation" with "financing" or either term with "arranging for."
Even by your cited defintion, my description of the maxim was accurate. You failed to note I said the shared meaning must *involve* the same subject matter. I didn't *equate* "creation" with "financing".
>the mental element to the offence (mens rea), specified in the end of the provision, may not make any sense in the context of simple media reproduction.
Irrelevant to this case.
The mental element is a *required* element of the offence. If you believe that the role of appellate courts is to give such a myopic interpretation of a provision that it is entirely dictated by factual concessions by a defendant, you can cheerfully expect dozens of conflicting interpretations of the same provision. There goes the legal certainty associated with your preferred "plain reading".
More horseshit. "Strict construction" is an interpretation based solely on the literal meanings of a statute's words, without regard to externalities such as leglislative intent or words that the legislature did not include.
That's only its exclusive meaning if you get your law from the news. See e.g. R. v. Hasselwander (Supreme Court of Canada) http://www.canlii.org/ca/cas/scc/1993/1993scc57.ht ml where authorities from both the UK and US are cited.
I don't think it has any bearing on copyright lawsuits. It arises largely as a result of a terribly-worded statutory provision. In Canada, the provisions are much clearer, with separate sentences for each of four crimes: "making" child pornography, "distribution" of child pornography (each max 10-year sentence), "possession" of child pornography and "accessing" child pornography (each max 5-year sentences) (http://www.canlii.org/ca/sta/c-46/sec163.1.html). The possession provisions have been subjected to constitutional scrutiny.
As previous posts indicate, this decision is problematic because possession without distribution should certainly not bear the same penalty as creation of child pornography. The Michigan appellate court got itself tied up because there is no reference to "distribution" in the provisions--so the Court decided it couldn't countenance distribution bearing the same penalty as possession.
Aside from the obvious policy problems the decision generates, it's also premised upon a very poor statutory construction. First, the court has improperly imported the word "reproduction" from the definitional provision and substituted it for "production" in the offence provision, which runs contrary to principles of statutory interpretation.
Second, the Court neglected to consider that the definitional provision applies to both the child pornography "creation" provisions and the "possession" provisions. Obviously, the Legislature intended to criminalize the *possession* of both originals and copies of child pornography, which is why the word "reproduction" appears in the definitional provision.
Third, although section MCL 750.145c(2) should really be broken into subsections, there are clearly three types of offences of increasing distance from the true *creation* of child pornography: 1) activities directly with the child ("persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child..."); 2) completed crimes of production ("arranges for, produces, makes, or finances"); 3) incomplete crimes of production ("attempts or prepares or conspires to arrange for, produce, make, or finance"). There is the same *underlying* criminal activity to each--*production* (not reproduction) or child pornography, or the person creating it.
Fourth, there's a principle called "ejusdem generis" to be applied in interpreting statutes--lists of words are taken to have related meanings. In this case, the verbs "arranges for, produces, makes, or finances" should be given similar meanings. In this case, the shared meaning must reasonably involve *creation* of child pornography.
Fifth, the mental element to the offence (mens rea), specified in the end of the provision, may not make any sense in the context of simple media reproduction. If you ask me to simply burn a copy of your CD with child pornography, I could be caught by this offence, without knowing *anything* about the content of the CD, simply because the photos on the CD "includes a child or that the depiction constituting the child sexually abusive material appears to include a child". If one is involved in filming or financing the original creation of the child pornography, that would likely not be the case.
Sixth, there's a maxim of "strict construction" applied to criminal statutes, at least in Canada (and I would think all over the Western world): in the case of legislative ambiguity in criminal provisions, they are to be given an interpretation most favourable to the accused.
All in all, this is a somewhat embarrassingly unsophisticated judgment to come from an appellate court. And alas, I have little hope that your Supreme Court, based upon its current composition, would correct these clear errors.
The rationale here--presented, as someone noted, by an analyst--is not technical issues, but marketing issues. I have no idea why ArsTechnica picked the story up.
The issue is not whether technical reasons relating to game development will delay release. Obviously delaying release of a platform does nothing to let you get more games out--it lets you get more games out at release. The issue is whether an entire platform can be sunk if its marketing on the day of its release fizzles. I don't think any platform thrives or dies on one day. The fate of Nintendo and Sega consoles was not determined by marketing (pricing, hardware, game selection, forward/backward compatibility...)
Sony might "buy time" by slashing PS2 prices, offering forward compatibility, and persuading buyers they can wait a little longer for unspecified technology of tomorrow rather than buying XBox 360 "old technology". But that course no longer seems plausible: I don't remember it offering PS2/PS3 compatibility, and it has frozen the specs of PS3 hardware.
Re:More complete bullshit being modded insightful?
on
No Levy on iPods in Canada
·
· Score: 3, Informative
The child-post is correct that Canadian copyright law contains no true equivalent to fair use. The other child post is regrettably incorrect about the effect of the Berne Convention. See http://www.law.cornell.edu/treaties/berne/10.html
You will notice, notwithstanding the fact that the phrase "fair use" is employed, clause 2 states that 'fair uses' will stipulated by the member countries (and in the Canadian case, restricted to a narrowly defined set of "fair dealing" practices). In any event, in Canada, like the US (but unlike certain European countries), international conventions have no direct domestic application. Domestic law prevails.
The Supreme Court's refusal to take this is unsurprising. In all likelihood statutory authority for an iPod levy will be worked back into the Act with the copyright reform that's been discussed here last week (e.g. http://yro.slashdot.org/article.pl?sid=05/07/13/23 14242&from=rss ). Unless, of course, CRIA takes a look at ITMS music sales of late. They might be dumb enough to do it anyway...
And as a barometer of my interest in new media sources, my reaction to this post was not to re-read the opening post, but to Google-search "freshlyshornballs" for a news web-site.
First, after a strongly worded decision at first instance, it seemed likely that the recording industry would never be able to gain access to the files of ISPs. So the fact that the decision is "without prejudice" is significant.
Second, von Finckenstein below had expressed doubt that MP3 uploading and downloading was illegal. Now the Federal Court of Appeal has determined stated that he should not have made that determination, so it will likely have no precedential value.
You describe IP as inventory and (capital) assets in the same breath. These are very different accounting and tax concepts. IP is more akin to a capital asset in that it does not deplete itself and is not 'sold' in the ordinary course of most businesses. It is licensed, which generates income, and taxes upon that income.
Some child posts suggest that western nations do not tax assets and therefore you cannot tax IP. Generally but not entirely true. Most western nations have low-level (municipal) property taxes upon real property (i.e. land). The US has gift taxes and death taxes (as do some European nations), which require disposition of the assets, but tax on its entire value, not the "income" the disposition generates (i.e. capital gains).
It's not entirely impractical to require corporations to accurately value these assets, as a child post below indicates, describing the book value of the Empire State building. It may be in the interests of a corporation to value its income and assets highly for the purposes of appealing to investors. Generally a non-factor in the case of private companies, so it would sting the large corporate hoarders of IP.
An alternative means of accomplishing the same thing would be to allow significant deductions for capital depreciation of IP assets, and capital gains taxation on the acquisition of the original asset. For example, a company obtains a patent. It places a value upon it, tempted to undervalue it to avoid taxation. It pays capital gains on the acquisition. Each subsequent year the corporation can devalue the asset, deducting these decreases in value from its other capital gains (or even income, if you want to treat it like inventory). The corporation is tempted to quickly devalue the asset. The Canadian tax system may allow such a taxation and deduction now as an "eligible capital gains/losses"--I'm not sure. But here's the kicker--when the IP's depreciated book value hits a certain percentage of its original value, you are required to offer it for public sale at that value.
Now there's an economic incentive for the corporation to accurately value its IP. There's a disincentive for obtaining spurious IP protection. There's an incentive for financially successful companies to 'let go' of underutilized assets. There's security in knowing that R&D expenses behind commercially unsuccessful products can be recouped.
I'm sure there are lots of variables that I'm not thinking of, and it would inject tremendous economic uncertainty into tax revenues...
Legally, it is not a tax. Tax measures must be introduced at Parliament by ways and means measures. The Tariff has already been challenged on the grounds that it is a tax but was not so introduced. The attack failed in the Federal Court of Appeal: http://www.canlii.org/ca/cas/fca/2004/2004fca424.h tml
And no, the government doesn't administer the program. Collection and enforcement is directly administered by the private collectives (e.g. http://cpcc.ca/english/collPayment.htm).
This isn't to say the whole thing isn't completely ill-conceived and unjust. But Ottawa isn't getting rich off this.
This isn't a duty. It doesn't apply exclusively to U.S. internet music service providers. It applies equally to Canadian ones.
Nor is it retaliatory. Although the largest internet music service providers are located in the US, it's not the US providers who pay the penalty as Canadian providers are preferred. There's no substitutability or benefit to choosing Canadian services. The Canadian consumer (such as myself) pays the ultimate price regardless.
In other news, Canada increasing the term for which a passport is valid to 120 years. Your children can use their passports with baby photos until they are white-haired (or if they're albino, for a really long time).
Brown finds it "intriguing" that many open-source contributors work for large IT companies. "Every day, an untold amount (sic) of employees beholden to strict employee/invention/intellectual property agreements, in their spare time (and even during work-hours) freely give away ideas, code, and products to open source projects," he writes. This opens up questions around the legal ownership of contributions, and could even open an avenue for a "disgruntled employee" to give away company secrets by contributing them to open-source projects, the report argues.
I work in a law firm, every day surrounded by and creating confidential documents. God forbid that during my own hours I perform pro bono legal work because I might have gained experience or insight through the course of my work. My employment arrangement should effectively mean that everything that comes out of my brain is controlled by my employer.
In Canada (and many European countries) we have "moral rights" that give you certain legal but not economic rights in copyrighted subject-matter. Specifically, even after you sell the copyright in your work, you are entitled to have your name associated with the work and have it retain its "integrity".
So I say start suing people who deface your blank paper by writing on it, ripping it up, or failing to write your name on every page. Scoundrels!
Accountability, based on your definition, doesn't "do" anything that anyone cares about.
I think McGrath's point is that there's no difference between responsibility and liability so long as both hit your pocketbook. If you'll lose sales because of bugs, you might as well have been sued. In that sense, the liability disclaimer is irrelevant.
That's not to say McGrath is right. As the sub post points out, Red Hat will lose sales if it distributes a shoddy product, no matter who made it. If it's open source, they have control over product quality. What's more, the fundamental premise that there has to be a risk of someone losing their own money for them to fix a problem is totally unfounded. Not only are there other things motivating "responsibility", but open source ensures the person most affected by the problem can assume some responsibility for fixing it--the end-user.
I use Romeo to use my T68i as a remote. Works brilliantly. But many people won't want to buy into an expensive phone and GSM network. But I'm not sure a PDA-style remote is the way to go. How about mixing things up, like they've done here, by designing a bluetooth wireless mouse/remote. Use it on your desktop. Use it to control and display your Airtunes. Bring it on the road for a presentation. The ergonomics would be tricky, but that's one thing Apple normally sorts out.
Ooh, as a law student involved in patent litigation, I can't tell you how much I'd like to get my hands on your "description of your idea". Let's hope your activities do not deviate from the description in the slightest, that your description does not over-promise and underperform, that no words used are overbroad or ambiguous, that you define not only processes but uses under the patent, etc., etc., etc. In Canada the test for anticipation (prior art) is a single piece of work that directs you to the same result without possibility of error.
Of course, you can *always* rely upon the "blood-from-a-stone" defence, and just count on yourself being too broke for anyone to bother suing, but most people prefer to avoid such vows of poverty.
I think you've missed an interesting dynamic: it's often not a question of whether a particular person can absolutely afford to purchase the track they want or must download it. It's a time/money dynamic: if you charge $150/hr in your chosen profession for your services, you won't be spending hours on end in your spare time trying to find good copies of the tunes you want on your P2P. I sure know that for me, the prospect of paying for CDs/downloads is much less daunting now that I've secured a jammy job (with a law firm, no less) than when I was a student.
So you ask for a "valid legal or moral justification" for RIAA opposition. How about the contrast of these propositions:
1. Charging fix costs for things with no marginal cost, extending our property regime into the (strato-)sphere of intellectual property in the name of "artificial creation of scarcity" so the RIAA can continue to control social wealth
2. Creating a system where goods can be infinitely replicated to the benefit of all, where the burden of their production is borne by those who can most afford to bear it.
And when this arrangement fails, will we have musicians and producers working as indentured labourers?
Ahh, yes, the patented etch-a-sketch technology. Frustrating when your book gets jostled on page 453 and the ending disappears like sand in the bottom of your e-book.
"But, since [virus infection] depends on a user downloading, extracting, and running something, if you swapped Windows' and MacOSX's market shares tomorrow, the same sorts of software would appear on the Mac tomorrow."
Or using the most popular Windows email client (Outlook/Express), which perverts the email protocol to allow ActiveX/VBScripts to auto-execute upon receipt.
This observation gets made daily on Slashdot. Mod down the parent.
I can only speak to the (very similar) Canadian system, but I think this complaint is off the mark. I am surprised by the low-level qualifications that our office accepts: http://strategis.gc.ca/sc_mrksv/cipo/patents/pt_em ployopps_p4-e.html. However:
1) Case law, not examiner discretion, determines the laxity of the novelty and obviousness tests;
2) Agents, who frequently have post-grad science experience, their four years legal education, and a required year of apprenticeship under another patent agent, usually review the patents--threat of malpractice helps set standards here;
3) Accessibility is a requirement of valid patents;
4) Patent litigators you speak to--infrequently with any science background--will tell you that they are perfectly capable of distinguishing two patents because it's a logical, not practical, exercise.
Excellent post. It's remarkable that we're still having ease-of-use discussion relating to the same topic after decades of UI research. I'm an OSX user who rarely uses the command line, though I have used CLIs for applications such as SPSS and been blown away by their power. To address the arguments of your detractors:
1) If you *ever* have to type 'man' or call on help, there is a deficiency in the system. 'Man' is not an element of the operation.
2) It is unsurprising that CLI commands can be 'described' with greater simplicity here than GUI commands--you're using words, not pictures.
3) The point of the GUI file-browsing metaphor is that it is a *metaphor*. One command may be more difficult to grasp, but once you 'get' the metaphor, the logic of *every* command becomes apparent. CLI command names and syntaxes do not possess this benefit (see point 1).
4) If your 'man' needs to spell out examples and you need to extrapolate from them, your system may be very logical. But not intuitive.
5) It's strange that the posters only associate the file manipulation system (Finder/Windows Explorer/etc.) with GUIs. Problems may be with those specific applications, not the GUI concept.
6) The single greatest complication to face the GUI, in my view, has been multiple users. As has been pointed out, feedback is critical, and a visible chronological sequence of commands is important. But 'desktop' metaphors breakdown entirely in multi-user environments. What if your office was rearranged every time you used it? I want to let someone else use a resource (application, document, etc.), so now I have to have two copies of it?
(I had never really thought about the chronological ordering of commands before. Admittedly, the desktop-metaphor sometimes has an 'undo', but rarely shows you precisely what you have done. But why not have a "visual undo", like the rewind button on a VCR/DVD?)
" 5.6" HDTV-quality display (1024 x 600)"
Coming out in time for the next Superbowl! No longer do you need to go around to your friend's house to watch the Superbowl on his home theatre set-up, you can bring your own 5.6" HDTV-quality system!
Why do people always assume the Martians are aggressive? Clearly this is merely an exploratory rock, just like the hardware that we sent there. No doubt, they're having trouble establishing radio contact with their carefully-researched rock too.
The most obvious proof that this is fact-gathering rock is where it landed. We have tons of water, so we send our research hardware looking for water. Where does the Martian rock go? Our biggest desert.
Most of the posters have missed the critical point of the property rights in this work. These issues are fairly easy to resolve:
1) Does US statute directly prohibit this action? (probably not, as at least some elements are with Apple's complicity)
2) Does Apple's EULA prohibit this action? (almost certainly)
3) Does US statute render the relevant portions of Apple's EULA void? (very doubtful, my rudimentary understanding of the 'first sale' principle is that it is a right associated with intellectual property IF not limited by a license agreement)
George therefore almost certainly has a binding contract with Apple. The issue is what is the relationship between Apple and George's buyer? Apple's EULA is worth nothing. George's buyer signed no contract with Apple. Does US STATUTE prevent George's *buyer* from distributing this work as he wishes?
Could one, in theory, incorporate a company called, say "she-bay", erase these 'rights' and avoid all personal liability?
What a glorious non-sequitur. You've demonstrated that you can't extract a ratio level of measurement (e.g. number of incidents of an occurrence) from an ordinal level of measurement (e.g. satisfaction ranking). What you've alleged is that the tester claimed that Quicktime was 2.45 times as good as FAAC (substitute another bogus number if you want). He did no such thing. He only relied on the idea that everyone in the testing group thought that 2 was worse than 3 and better than 1. Everyone in the group shared that thought. He's saying "four out of five testers prefer X to Y".
A great number of statistical functions can be performed on ordinal data sets, including averaging, ranges, and I believe standard deviations and degrees of significance. I'm pretty sure you can even code Yes/No questions into one and zero and perform them.
What you say about not being able to perform statistical analysis on subjective data is complete nonsense. Back to stats class.
Slashdot Mirror
I don't think you're interested in the merits or defects of the decision at all. You certainly haven't tendered a cogent defence of it. You simply repeat your view of what the decision states, which is scarcely the point of the discussion, unless you have a peculiarly anti-democratic view that there is no such thing as "good law" and "bad law", there is only "the law" (and then I might expect an exposition on the merits of legal positivism or the like). Consistent with that, your comments seem to betray a bias in favour of literalism and "plain meaning"--although you seem perfectly content to offer a *different* view of the "legislative reasoning" and the "provision's purpose". Your unqualified "plain meaning" approach is inconsistent with the principles of statutory interpretation cited in the decision. Your inferred "legislative reasoning" is in direct conflict with the approach in Tombs (*notwithstanding* the Court's finding to the contrary). Finally, if you intend to be insulting, ensure you're casting intelligent insults. "Amateur jurisprudence"? The phrase is senseless.
Miles, if you are studying or practicing law, stop before you get sued.
t ml where authorities from both the UK and US are cited.
If you're in the business of suing anonymous posters on Slashdot on the basis of their comments about binding legal decisions in your jurisdiction, perhaps *you* should quit the business of law.
Distribution is not at issue. The issue is whether the defendant "made" child porn. If he made a warehouse full of it and never distributed or intended to distribute any of it, he still earned 20 years under Michigan law.
You have completely ignored the normative/policy aspect to my introductory comment.
The defendant inarguably increased the amount of child porn in existence...
This illustrates the perversity of attempting to interpret the provision with no sense for its purpose. It may also illustrate why the US has the highest incarceration rate of any democratic nation. Child pornography can only *possibly* cause harm to the child-victims (and perhaps their personal contacts) and arguably its viewers (cognitive dissonance). *Re*production without distribution by someone already in possession cannot possibly exacerbate the offence. This is a pretty clear signal that "reproduction" should not be read into the definition of "production".
Horseshit. "Ejusdem generis" means no such thing, particularly when it would yield such absurd results as equating "creation" with "financing" or either term with "arranging for."
Even by your cited defintion, my description of the maxim was accurate. You failed to note I said the shared meaning must *involve* the same subject matter. I didn't *equate* "creation" with "financing".
>the mental element to the offence (mens rea), specified in the end of the provision, may not make any sense in the context of simple media reproduction.
Irrelevant to this case.
The mental element is a *required* element of the offence. If you believe that the role of appellate courts is to give such a myopic interpretation of a provision that it is entirely dictated by factual concessions by a defendant, you can cheerfully expect dozens of conflicting interpretations of the same provision. There goes the legal certainty associated with your preferred "plain reading".
More horseshit. "Strict construction" is an interpretation based solely on the literal meanings of a statute's words, without regard to externalities such as leglislative intent or words that the legislature did not include.
That's only its exclusive meaning if you get your law from the news. See e.g. R. v. Hasselwander (Supreme Court of Canada) http://www.canlii.org/ca/cas/scc/1993/1993scc57.h
I don't think it has any bearing on copyright lawsuits. It arises largely as a result of a terribly-worded statutory provision. In Canada, the provisions are much clearer, with separate sentences for each of four crimes: "making" child pornography, "distribution" of child pornography (each max 10-year sentence), "possession" of child pornography and "accessing" child pornography (each max 5-year sentences) (http://www.canlii.org/ca/sta/c-46/sec163.1.html). The possession provisions have been subjected to constitutional scrutiny.
As previous posts indicate, this decision is problematic because possession without distribution should certainly not bear the same penalty as creation of child pornography. The Michigan appellate court got itself tied up because there is no reference to "distribution" in the provisions--so the Court decided it couldn't countenance distribution bearing the same penalty as possession.
Aside from the obvious policy problems the decision generates, it's also premised upon a very poor statutory construction. First, the court has improperly imported the word "reproduction" from the definitional provision and substituted it for "production" in the offence provision, which runs contrary to principles of statutory interpretation.
Second, the Court neglected to consider that the definitional provision applies to both the child pornography "creation" provisions and the "possession" provisions. Obviously, the Legislature intended to criminalize the *possession* of both originals and copies of child pornography, which is why the word "reproduction" appears in the definitional provision.
Third, although section MCL 750.145c(2) should really be broken into subsections, there are clearly three types of offences of increasing distance from the true *creation* of child pornography: 1) activities directly with the child ("persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child..."); 2) completed crimes of production ("arranges for, produces, makes, or finances"); 3) incomplete crimes of production ("attempts or prepares or conspires to arrange for, produce, make, or finance"). There is the same *underlying* criminal activity to each--*production* (not reproduction) or child pornography, or the person creating it.
Fourth, there's a principle called "ejusdem generis" to be applied in interpreting statutes--lists of words are taken to have related meanings. In this case, the verbs "arranges for, produces, makes, or finances" should be given similar meanings. In this case, the shared meaning must reasonably involve *creation* of child pornography.
Fifth, the mental element to the offence (mens rea), specified in the end of the provision, may not make any sense in the context of simple media reproduction. If you ask me to simply burn a copy of your CD with child pornography, I could be caught by this offence, without knowing *anything* about the content of the CD, simply because the photos on the CD "includes a child or that the depiction constituting the child sexually abusive material appears to include a child". If one is involved in filming or financing the original creation of the child pornography, that would likely not be the case.
Sixth, there's a maxim of "strict construction" applied to criminal statutes, at least in Canada (and I would think all over the Western world): in the case of legislative ambiguity in criminal provisions, they are to be given an interpretation most favourable to the accused.
All in all, this is a somewhat embarrassingly unsophisticated judgment to come from an appellate court. And alas, I have little hope that your Supreme Court, based upon its current composition, would correct these clear errors.
The rationale here--presented, as someone noted, by an analyst--is not technical issues, but marketing issues. I have no idea why ArsTechnica picked the story up.
The issue is not whether technical reasons relating to game development will delay release. Obviously delaying release of a platform does nothing to let you get more games out--it lets you get more games out at release. The issue is whether an entire platform can be sunk if its marketing on the day of its release fizzles. I don't think any platform thrives or dies on one day. The fate of Nintendo and Sega consoles was not determined by marketing (pricing, hardware, game selection, forward/backward compatibility...)
Sony might "buy time" by slashing PS2 prices, offering forward compatibility, and persuading buyers they can wait a little longer for unspecified technology of tomorrow rather than buying XBox 360 "old technology". But that course no longer seems plausible: I don't remember it offering PS2/PS3 compatibility, and it has frozen the specs of PS3 hardware.
Fair dealing is not fair use. See http://www.faircopyright.ca/principles.html for example.
3 14242&from=rss ). Unless, of course, CRIA takes a look at ITMS music sales of late. They might be dumb enough to do it anyway...
The child-post is correct that Canadian copyright law contains no true equivalent to fair use. The other child post is regrettably incorrect about the effect of the Berne Convention. See http://www.law.cornell.edu/treaties/berne/10.html
You will notice, notwithstanding the fact that the phrase "fair use" is employed, clause 2 states that 'fair uses' will stipulated by the member countries (and in the Canadian case, restricted to a narrowly defined set of "fair dealing" practices). In any event, in Canada, like the US (but unlike certain European countries), international conventions have no direct domestic application. Domestic law prevails.
The Supreme Court's refusal to take this is unsurprising. In all likelihood statutory authority for an iPod levy will be worked back into the Act with the copyright reform that's been discussed here last week (e.g. http://yro.slashdot.org/article.pl?sid=05/07/13/2
And as a barometer of my interest in new media sources, my reaction to this post was not to re-read the opening post, but to Google-search "freshlyshornballs" for a news web-site.
The parent post should be modded down.
Did you read the decision?
First, after a strongly worded decision at first instance, it seemed likely that the recording industry would never be able to gain access to the files of ISPs. So the fact that the decision is "without prejudice" is significant.
Second, von Finckenstein below had expressed doubt that MP3 uploading and downloading was illegal. Now the Federal Court of Appeal has determined stated that he should not have made that determination, so it will likely have no precedential value.
You describe IP as inventory and (capital) assets in the same breath. These are very different accounting and tax concepts. IP is more akin to a capital asset in that it does not deplete itself and is not 'sold' in the ordinary course of most businesses. It is licensed, which generates income, and taxes upon that income.
Some child posts suggest that western nations do not tax assets and therefore you cannot tax IP. Generally but not entirely true. Most western nations have low-level (municipal) property taxes upon real property (i.e. land). The US has gift taxes and death taxes (as do some European nations), which require disposition of the assets, but tax on its entire value, not the "income" the disposition generates (i.e. capital gains).
It's not entirely impractical to require corporations to accurately value these assets, as a child post below indicates, describing the book value of the Empire State building. It may be in the interests of a corporation to value its income and assets highly for the purposes of appealing to investors. Generally a non-factor in the case of private companies, so it would sting the large corporate hoarders of IP.
An alternative means of accomplishing the same thing would be to allow significant deductions for capital depreciation of IP assets, and capital gains taxation on the acquisition of the original asset. For example, a company obtains a patent. It places a value upon it, tempted to undervalue it to avoid taxation. It pays capital gains on the acquisition. Each subsequent year the corporation can devalue the asset, deducting these decreases in value from its other capital gains (or even income, if you want to treat it like inventory). The corporation is tempted to quickly devalue the asset. The Canadian tax system may allow such a taxation and deduction now as an "eligible capital gains/losses"--I'm not sure. But here's the kicker--when the IP's depreciated book value hits a certain percentage of its original value, you are required to offer it for public sale at that value.
Now there's an economic incentive for the corporation to accurately value its IP. There's a disincentive for obtaining spurious IP protection. There's an incentive for financially successful companies to 'let go' of underutilized assets. There's security in knowing that R&D expenses behind commercially unsuccessful products can be recouped.
I'm sure there are lots of variables that I'm not thinking of, and it would inject tremendous economic uncertainty into tax revenues...
Legally, it is not a tax. Tax measures must be introduced at Parliament by ways and means measures. The Tariff has already been challenged on the grounds that it is a tax but was not so introduced. The attack failed in the Federal Court of Appeal: http://www.canlii.org/ca/cas/fca/2004/2004fca424.h tml
And no, the government doesn't administer the program. Collection and enforcement is directly administered by the private collectives (e.g. http://cpcc.ca/english/collPayment.htm).
This isn't to say the whole thing isn't completely ill-conceived and unjust. But Ottawa isn't getting rich off this.
This isn't a duty. It doesn't apply exclusively to U.S. internet music service providers. It applies equally to Canadian ones.
Nor is it retaliatory. Although the largest internet music service providers are located in the US, it's not the US providers who pay the penalty as Canadian providers are preferred. There's no substitutability or benefit to choosing Canadian services. The Canadian consumer (such as myself) pays the ultimate price regardless.
In other news, Canada increasing the term for which a passport is valid to 120 years. Your children can use their passports with baby photos until they are white-haired (or if they're albino, for a really long time).
Brown finds it "intriguing" that many open-source contributors work for large IT companies. "Every day, an untold amount (sic) of employees beholden to strict employee/invention/intellectual property agreements, in their spare time (and even during work-hours) freely give away ideas, code, and products to open source projects," he writes. This opens up questions around the legal ownership of contributions, and could even open an avenue for a "disgruntled employee" to give away company secrets by contributing them to open-source projects, the report argues.
I work in a law firm, every day surrounded by and creating confidential documents. God forbid that during my own hours I perform pro bono legal work because I might have gained experience or insight through the course of my work. My employment arrangement should effectively mean that everything that comes out of my brain is controlled by my employer.
In Canada (and many European countries) we have "moral rights" that give you certain legal but not economic rights in copyrighted subject-matter. Specifically, even after you sell the copyright in your work, you are entitled to have your name associated with the work and have it retain its "integrity".
So I say start suing people who deface your blank paper by writing on it, ripping it up, or failing to write your name on every page. Scoundrels!
Accountability, based on your definition, doesn't "do" anything that anyone cares about.
I think McGrath's point is that there's no difference between responsibility and liability so long as both hit your pocketbook. If you'll lose sales because of bugs, you might as well have been sued. In that sense, the liability disclaimer is irrelevant.
That's not to say McGrath is right. As the sub post points out, Red Hat will lose sales if it distributes a shoddy product, no matter who made it. If it's open source, they have control over product quality. What's more, the fundamental premise that there has to be a risk of someone losing their own money for them to fix a problem is totally unfounded. Not only are there other things motivating "responsibility", but open source ensures the person most affected by the problem can assume some responsibility for fixing it--the end-user.
I use Romeo to use my T68i as a remote. Works brilliantly. But many people won't want to buy into an expensive phone and GSM network. But I'm not sure a PDA-style remote is the way to go. How about mixing things up, like they've done here, by designing a bluetooth wireless mouse/remote. Use it on your desktop. Use it to control and display your Airtunes. Bring it on the road for a presentation. The ergonomics would be tricky, but that's one thing Apple normally sorts out.
Ooh, as a law student involved in patent litigation, I can't tell you how much I'd like to get my hands on your "description of your idea". Let's hope your activities do not deviate from the description in the slightest, that your description does not over-promise and underperform, that no words used are overbroad or ambiguous, that you define not only processes but uses under the patent, etc., etc., etc. In Canada the test for anticipation (prior art) is a single piece of work that directs you to the same result without possibility of error.
Of course, you can *always* rely upon the "blood-from-a-stone" defence, and just count on yourself being too broke for anyone to bother suing, but most people prefer to avoid such vows of poverty.
I think you've missed an interesting dynamic: it's often not a question of whether a particular person can absolutely afford to purchase the track they want or must download it. It's a time/money dynamic: if you charge $150/hr in your chosen profession for your services, you won't be spending hours on end in your spare time trying to find good copies of the tunes you want on your P2P. I sure know that for me, the prospect of paying for CDs/downloads is much less daunting now that I've secured a jammy job (with a law firm, no less) than when I was a student.
So you ask for a "valid legal or moral justification" for RIAA opposition. How about the contrast of these propositions:
1. Charging fix costs for things with no marginal cost, extending our property regime into the (strato-)sphere of intellectual property in the name of "artificial creation of scarcity" so the RIAA can continue to control social wealth
2. Creating a system where goods can be infinitely replicated to the benefit of all, where the burden of their production is borne by those who can most afford to bear it.
And when this arrangement fails, will we have musicians and producers working as indentured labourers?
Ahh, yes, the patented etch-a-sketch technology. Frustrating when your book gets jostled on page 453 and the ending disappears like sand in the bottom of your e-book.
"But, since [virus infection] depends on a user downloading, extracting, and running something, if you swapped Windows' and MacOSX's market shares tomorrow, the same sorts of software would appear on the Mac tomorrow."
Or using the most popular Windows email client (Outlook/Express), which perverts the email protocol to allow ActiveX/VBScripts to auto-execute upon receipt.
This observation gets made daily on Slashdot. Mod down the parent.
I can only speak to the (very similar) Canadian system, but I think this complaint is off the mark. I am surprised by the low-level qualifications that our office accepts: http://strategis.gc.ca/sc_mrksv/cipo/patents/pt_em ployopps_p4-e.html. However:
1) Case law, not examiner discretion, determines the laxity of the novelty and obviousness tests;
2) Agents, who frequently have post-grad science experience, their four years legal education, and a required year of apprenticeship under another patent agent, usually review the patents--threat of malpractice helps set standards here;
3) Accessibility is a requirement of valid patents;
4) Patent litigators you speak to--infrequently with any science background--will tell you that they are perfectly capable of distinguishing two patents because it's a logical, not practical, exercise.
Excellent post. It's remarkable that we're still having ease-of-use discussion relating to the same topic after decades of UI research. I'm an OSX user who rarely uses the command line, though I have used CLIs for applications such as SPSS and been blown away by their power. To address the arguments of your detractors:
1) If you *ever* have to type 'man' or call on help, there is a deficiency in the system. 'Man' is not an element of the operation.
2) It is unsurprising that CLI commands can be 'described' with greater simplicity here than GUI commands--you're using words, not pictures.
3) The point of the GUI file-browsing metaphor is that it is a *metaphor*. One command may be more difficult to grasp, but once you 'get' the metaphor, the logic of *every* command becomes apparent. CLI command names and syntaxes do not possess this benefit (see point 1).
4) If your 'man' needs to spell out examples and you need to extrapolate from them, your system may be very logical. But not intuitive.
5) It's strange that the posters only associate the file manipulation system (Finder/Windows Explorer/etc.) with GUIs. Problems may be with those specific applications, not the GUI concept.
6) The single greatest complication to face the GUI, in my view, has been multiple users. As has been pointed out, feedback is critical, and a visible chronological sequence of commands is important. But 'desktop' metaphors breakdown entirely in multi-user environments. What if your office was rearranged every time you used it? I want to let someone else use a resource (application, document, etc.), so now I have to have two copies of it?
(I had never really thought about the chronological ordering of commands before. Admittedly, the desktop-metaphor sometimes has an 'undo', but rarely shows you precisely what you have done. But why not have a "visual undo", like the rewind button on a VCR/DVD?)
" 5.6" HDTV-quality display (1024 x 600)"
Coming out in time for the next Superbowl! No longer do you need to go around to your friend's house to watch the Superbowl on his home theatre set-up, you can bring your own 5.6" HDTV-quality system!
(Hmmm...720p...1080i...600 what?)
Why do people always assume the Martians are aggressive? Clearly this is merely an exploratory rock, just like the hardware that we sent there. No doubt, they're having trouble establishing radio contact with their carefully-researched rock too.
The most obvious proof that this is fact-gathering rock is where it landed. We have tons of water, so we send our research hardware looking for water. Where does the Martian rock go? Our biggest desert.
Most of the posters have missed the critical point of the property rights in this work. These issues are fairly easy to resolve:
1) Does US statute directly prohibit this action? (probably not, as at least some elements are with Apple's complicity)
2) Does Apple's EULA prohibit this action? (almost certainly)
3) Does US statute render the relevant portions of Apple's EULA void? (very doubtful, my rudimentary understanding of the 'first sale' principle is that it is a right associated with intellectual property IF not limited by a license agreement)
George therefore almost certainly has a binding contract with Apple. The issue is what is the relationship between Apple and George's buyer? Apple's EULA is worth nothing. George's buyer signed no contract with Apple. Does US STATUTE prevent George's *buyer* from distributing this work as he wishes?
Could one, in theory, incorporate a company called, say "she-bay", erase these 'rights' and avoid all personal liability?
What a glorious non-sequitur. You've demonstrated that you can't extract a ratio level of measurement (e.g. number of incidents of an occurrence) from an ordinal level of measurement (e.g. satisfaction ranking). What you've alleged is that the tester claimed that Quicktime was 2.45 times as good as FAAC (substitute another bogus number if you want). He did no such thing. He only relied on the idea that everyone in the testing group thought that 2 was worse than 3 and better than 1. Everyone in the group shared that thought. He's saying "four out of five testers prefer X to Y".
A great number of statistical functions can be performed on ordinal data sets, including averaging, ranges, and I believe standard deviations and degrees of significance. I'm pretty sure you can even code Yes/No questions into one and zero and perform them.
What you say about not being able to perform statistical analysis on subjective data is complete nonsense. Back to stats class.