I believe that by setting up a mail server you are giving implied consent to have someone send you mail, any mail, for any reason.
Whether there is or is not implied consent for such things is a legal question that really doesn't depend on what you as an individual believe.
if I determine that you can't use a gun which you own to shoot a cow which you also own in its head, that's perfectly moral under both my moral system and that of much of the rest of the world
That's really starting to drift, but there is clearly a difference between forcing somebody's stuff to be actively used in a particular way - particularly when this is done for personal gain - and requiring them not to use their stuff in a particular way that is otherwise morally objectionable.
As one of the helpers for the installfest, I can say that this is pretty much only going to help our cause. We couldn't ask for better advertising (both the NZ Herald, and Slashdot).
If you still have problems, get the duplication done in Australia. An agreement of the nature cited is flat out illegal here, so you shouldn't encounter the same problem.
So spam is fine until you tell the spammer to stop.
No, because it's outside the scope of implied consent - but implied consent has not been a relevant factor in any case so far because all have involved an explicit notice that the spam was unwelcome.
So spam is fine until you tell the spammer to stop.
You don't have to agree, but to say that ownership has nothing to do with morality when the dominant moral beliefs are to the contrary is untenable. It may well be your subjective view that ownership is amoral, but that doesn't make ownership incompatible with morals.
Harrison Ford will always be Indiana Jones, plain and simple
Except when River Pheonix is Indiana Jones, of course. And then there's the TV series "Young Indiana Jones", in which the character was played, at various ages, by Sean Patrick Flanery, Corey Carrier, and George Hall. Connery's character was played by Lloyd Owen. There were also a bunch of TV movies.
But you yourself, by posting that message, just determined how Slashdot's hard drive is used.
With consent. This is not a right - it is a privelege granted by the owner (or more accurately, the possessor). I don't have a right to do so just because it's possible, but Andover consents to this use. Indeed there is implied consent to use the facility within its apparent purpose that arises from making the facility available, but if Andover told me to never post again, this would withdraw consent - both express and implied - and I would have neither the right nor the privilege to post, and doing so would amount to a trespass. This is like what happened with Intel and Hamidi.
On the other hand, if I discovered the flaw in the Slashcode and exploited it to hack in, this is not merely criminal - it is also a use beyond the scope of the consent, and would be trespass. If I posted ads non-stop to all the discussions, this would be trespass too. In these cases Andover wouldn't even need to withdraw consent, since the actions are outside the scope of the implied consent. This is like garden variety spamming or cracking.
Even the majority in this judgement agreed that Hamidi has no right to send his messages, at least since Intel told him not to - the majority merely refused to enforce Intel's rights stating, bizzarely, that Intel has the legal right to exclude Hamidi from their systems but that the courts won't enforce this (I won't even go into the reasons why this is wrong, but the dissenting judgements make a good start on it).
Morally? Morality knows no such thing as "ownership."
You appear to be confusing morality with ethics. Morality is a subjective view, and there are currently available centuries of philosophical and legal discourse that assert that ownership is moral. There are older writings, but most Western ones didn't survive the Dark Ages. There are also contrary views, but they are hardly dominant in western society.
Wow, that's just plain wrong. As wrong as it could possibly be. You simply do not have the right to determine how other peoples' stuff can be used, no matter how easy or possible it is to do so. You don't have that right morally, and you don't have it legally.
reconciling this ruling with anti-spam rules may be tricky since this gives spammers a defence...
Fortunately, this case has almost no impact at all on the spam cases - if anything it makes the spam cases stronger. The decision is very narrowly confined on its facts and really is only likely to apply in a case where there is some pre-existing relationship between the sender and the victim.
That said, the opinion still sucks for the fact that it tells Intel that they have no say in how their equipment is used, and proposes the entirely ineffectual remedy of self-help.
I think the difference can be understood in the realm of non-electronic world. Let's say I have a business. I have a customer inside, and one of his friends sees him and they end up having a conversation outside my door. Do I have a legitimate right to boot them? Probably not.
You most certainly do have a legal right to kick them out. It would be a strange thing to do, but you could legally do it.
The computer displays Spam without a problem, you're the one that has a problem dealing with it.
Part of the function of the computer and software combination is to efficiently deliver personal and solicited email communications and to sort them in a way that is conducive to efficient use. Spam impairs this efficiency and therefore impairs the function. This is only not impairment if the intention in installing the software is to display spam. This intention is not present.
I would argue that spam impairs my ability to use my computer - e.g. when 19 out of 20 messages are spam, and I either have to waste time getting to that one message I want to read, or miss it completely.
Intel prosecuted this case based on trespass to the servers, not trespass to the end user desktops. Hence your point is valid, but was not relevant in the case.
The court isn't saying that you can't block this guy's email. They're just are saying that the guy in question didn't tresspass.
Actually, they didn't say that he didn't trespass - quite the contrary, they said he did trespass. They then said, in a nutshell, "but we're not going to enforce trespass in California without proof of damage." They even admitted this is a departure from the law inherited from England.
Yeah, I really forced you to install that mail server.
Yeah, I really forced you to buy a car. So equally if I steal your car, I haven't forced you to buy another, claim on insurance, take a bus in the interim.
Or... "I really forced you to have ears".
If somebody else has their mail server for one purpose, and you exploit it for another contrary to their stated wishes, you are forcing that use on them, period. It's the owner of the thing that gets to say how it's used.
Unfortunately this case was, IMO, very poorly argued by the lawyers for Intel. There were numerous additional arguments they should have taken, but didn't.
I think Bill just won the understatement of the year award.
Really? I would have thought he won the sleazebag liar of the year award. Microsoft has been instrumental in the defeat of numerous good anti-spam bills, including a recent bill that passed the California Senate. They were also instrumental in watering down the Washington State anti-spam law before it was passed, and have recently been trying to get it watered down further. Don't be blinded by what they say - look at what they do, and you can't help but see that Microsoft is pro spam.
It's not complexity that makes software suck.
It's the inability of a given development team to handle the complexity they created.
I think you misunderstand the OP's point. The point is not that the development is complex - a quality development team will have no trouble with complexity. The point is that more features mean more things for the user to remember, and/or more options on the menu. As more options are put on the menu, the conceptual distance separating the options will decrease, so that in looking to achieve a particular goal it might be necessary to try more than one option. It may even be possible to achieve the same goal with perhaps various degrees of efficiency and fidelity by using different combinations of options. Modern word processors demonstrate this problem convincingly.
A quality developer can usually juggle dozens of things in their heads at once, but an average end user is far more limited in this regard. Thus while the additional features may not seem to make much difference to the developer, to the user they are intimidating.
This is one of the reasons why most development teams in the software publishing industry now have usability experts. These people don't write code - they spend their time figuring out how to adjust the complexity of a multitude of options for end users, then hand off instructions to the coders to be implemented. This is not a complete solution to the problem of feature-induced complexity, but it helps.
Of course it's rude, but that's because I find your contributions to be ignorant and unhelpful. Your stuff is so wrong that it really doesn't merit more than the response that it's just plain wrong. It's wrong in the same way that the belief of the Flat Earth Society is wrong.
As I've said before, freecraft is more than look and feel. It's the exact same game. Same units, Same health, Same research tree, same spells, same build order. It's the same game.
That is not the part that's protected by copyright. This is what you don't get - you don't know what copyright protects. You've got people surrounding you who do know and telling you you're wrong, but you continue to blather on about these irrelevant considerations and saying they point to illegality. They don't - they're utterly irrelevant.
I don't work for blizzard. I'm a 20 year old calarts student who lives in los angeles...
It is illegal to freely provide such a close imitaion of a retail game, no matter how low-quality you can make it.
I suggest you shut up before you embarrass yourself further. As your area is arts of some description, I futher suggest you leave the legal analysis to those of us who have studied law, because you're wrong. It is quite plain that it's perfectly legal to rip off the style, look and feel of a game.
it's a matter of completely ripping off the design ideas
One more time for the dummies - the ideas aren't protected. The code is protected. The graphics are protected. The trademark is protected. Only a patent can protect ideas, and there's been no indication that there is a patent involved.
Sounds to me like these people have way overreacted, but without seeing the letter I can't tell for sure.
Anyway, check out this screenshot. Compare with this one.
Not sure your comparison is meaningful - FreeCraft can use *Craft graphics if you have them on your system (such as by having bought the game). The screenshots you showed were probably created that way. On the other hand, FreeCraft also has its own graphics that are not copied. Those graphics reflect perhaps the ideas of the original(which is not protected), without the expression (which is).
VAGUELY similiar? It looked like they sawed it down and copied it exactly. Sorry, but even if they wrote their own code and did their own artwork, it still looked exactly like WC2.
I dont think any other industry allows people to create a fake lookalike product, so let them go make fake purses or something.
The look-and-feel lawsuits were lost by the agressors over a decade ago. It is quite clear that you can duplicate functionality from the ground up, as long as you copy neither code nor images.
Does anybody know where there is a copy of the letter? This strikes me as something that could be fixed.
This page claims: "It is always permissible to use a patented invention for research purposes," but this page denies the existence of such an exception to the patent monopoly... Any lawyers in the audience?
Depends on how you define "research purposes". Without checking the specifics of US patent law, patents generally prevent industrial or commercial exploitation - if the third party exploitation cannot be slotted into the industrial or commercial categories, it may be OK.
Some answers on the legal questions
on
My Visit to SCO
·
· Score: 1
First, on derivative works. SCO's apparent expansive definition is clearly wrong. From 17 USC 101:
A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.
While the section starts with "based on", it then clarifies with categories. The categories all show that this clearly contemplates something that contains intellectual property from the original work. Then there's the terms "recast, transformed, or adapted" - clearly add-ons involve none of these transformations, so the question is whether the alleged derivative contains original IP. Computer Associates v Altai clearly indicates that program interfaces are not part of the intellectual property. Thus the claim against stuff "added to" UNIX by others is derivative is a complete non-starter.
Second, the claim that the contract with IBM expands on the definition of derivative work is completely irrelevent to Linux. IBM could lose, but nobody other than IBM and SCO are parties to the contract, and thus nobody else can be held to it.
ILT's descriptions of the other stuff make it sound extraordinarily weak too.
The stuff about not wanting violations removed from the kernel before the trial is extremely suspicious. This will clearly give rise to an estoppel against anybody they try to sue over use and copying in the interim, and in any case common law principles regarding failure to mitigate the damages would clearly apply to prevent damages being awarded for such use. Removal of the IP from Linux would not affect the IBM case as regards stuff that happened before such removal. It would also mean they've contributed to the continued public exposure of their alleged trade secrets, thus seriously undermining their trade secrets case - it is the information itself that gets protection as a trade secret, not its identification with SCO. There is no legal reason why they would take the course of avoiding the IP being removed from Linux before the trial.
I'm also seriously questioning the validity of the NDA - it is likely that they made representations that the person signing the NDA would be given relevant information to assess the validity of SCO's claims - in fact I'm sure they did so in the media. Clearly this was a real inducement to enter into the NDA - in fact ILT basically said so. Yet it seems the meeting was carefully constructed to prevent ILT from being able to reliably make any such assessment. Assuming the foregoing, the contract could be set aside by a court for fraud.
In my assessment, this is starting to look more and more like an elaborate bluff. The legal theories that are leaking from SCO are just plain ludicrous. Their behaviour with the NDAs and the limited information given to people who sign them suggest there was never any intention to have a real assessment of the merits.
I'm both a top notch coder and a top notch law student, and I'd seriously like to go a couple of rounds with the SCO executives and their lawyers to get to the bottom of this, but there's no way with the NDA - at least not in that form. The rules of equity should be adequate protection anyway.
But someone has plainly pointed out to them that these actions are possibly illegal and they could be charged with misrepresentation. This is certainly true under the laws of the European Union.
if IBM buys out SCO, doesn't that mean that IBM will inherit all of the legal headaches that SCO has raised?
Not if it's a buy-out as opposed to a merger. They could either buy the IP, or buy the company and leave it as a subsidiary. Either way IBM would not be insulated from the bad stuff.
Slashdot Mirror
I believe that by setting up a mail server you are giving implied consent to have someone send you mail, any mail, for any reason.
Whether there is or is not implied consent for such things is a legal question that really doesn't depend on what you as an individual believe.
if I determine that you can't use a gun which you own to shoot a cow which you also own in its head, that's perfectly moral under both my moral system and that of much of the rest of the world
That's really starting to drift, but there is clearly a difference between forcing somebody's stuff to be actively used in a particular way - particularly when this is done for personal gain - and requiring them not to use their stuff in a particular way that is otherwise morally objectionable.
As one of the helpers for the installfest, I can say that this is pretty much only going to help our cause. We couldn't ask for better advertising (both the NZ Herald, and Slashdot).
If you still have problems, get the duplication done in Australia. An agreement of the nature cited is flat out illegal here, so you shouldn't encounter the same problem.
So spam is fine until you tell the spammer to stop.
No, because it's outside the scope of implied consent - but implied consent has not been a relevant factor in any case so far because all have involved an explicit notice that the spam was unwelcome.
So spam is fine until you tell the spammer to stop.
You don't have to agree, but to say that ownership has nothing to do with morality when the dominant moral beliefs are to the contrary is untenable. It may well be your subjective view that ownership is amoral, but that doesn't make ownership incompatible with morals.
Harrison Ford will always be Indiana Jones, plain and simple
Except when River Pheonix is Indiana Jones, of course. And then there's the TV series "Young Indiana Jones", in which the character was played, at various ages, by Sean Patrick Flanery, Corey Carrier, and George Hall. Connery's character was played by Lloyd Owen. There were also a bunch of TV movies.
But you yourself, by posting that message, just determined how Slashdot's hard drive is used.
With consent. This is not a right - it is a privelege granted by the owner (or more accurately, the possessor). I don't have a right to do so just because it's possible, but Andover consents to this use. Indeed there is implied consent to use the facility within its apparent purpose that arises from making the facility available, but if Andover told me to never post again, this would withdraw consent - both express and implied - and I would have neither the right nor the privilege to post, and doing so would amount to a trespass. This is like what happened with Intel and Hamidi.
On the other hand, if I discovered the flaw in the Slashcode and exploited it to hack in, this is not merely criminal - it is also a use beyond the scope of the consent, and would be trespass. If I posted ads non-stop to all the discussions, this would be trespass too. In these cases Andover wouldn't even need to withdraw consent, since the actions are outside the scope of the implied consent. This is like garden variety spamming or cracking.
Even the majority in this judgement agreed that Hamidi has no right to send his messages, at least since Intel told him not to - the majority merely refused to enforce Intel's rights stating, bizzarely, that Intel has the legal right to exclude Hamidi from their systems but that the courts won't enforce this (I won't even go into the reasons why this is wrong, but the dissenting judgements make a good start on it).
Morally? Morality knows no such thing as "ownership."
You appear to be confusing morality with ethics. Morality is a subjective view, and there are currently available centuries of philosophical and legal discourse that assert that ownership is moral. There are older writings, but most Western ones didn't survive the Dark Ages. There are also contrary views, but they are hardly dominant in western society.
Wow, that's just plain wrong. As wrong as it could possibly be. You simply do not have the right to determine how other peoples' stuff can be used, no matter how easy or possible it is to do so. You don't have that right morally, and you don't have it legally.
reconciling this ruling with anti-spam rules may be tricky since this gives spammers a defence...
Fortunately, this case has almost no impact at all on the spam cases - if anything it makes the spam cases stronger. The decision is very narrowly confined on its facts and really is only likely to apply in a case where there is some pre-existing relationship between the sender and the victim.
That said, the opinion still sucks for the fact that it tells Intel that they have no say in how their equipment is used, and proposes the entirely ineffectual remedy of self-help.
This guy was not spamming in the modern sense of the word.
You obviously have a bizarre definition of spam. It was unsolicited. It was bulk. It was email. Hence it was spam.
I think the difference can be understood in the realm of non-electronic world. Let's say I have a business. I have a customer inside, and one of his friends sees him and they end up having a conversation outside my door. Do I have a legitimate right to boot them? Probably not.
You most certainly do have a legal right to kick them out. It would be a strange thing to do, but you could legally do it.
The computer displays Spam without a problem, you're the one that has a problem dealing with it.
Part of the function of the computer and software combination is to efficiently deliver personal and solicited email communications and to sort them in a way that is conducive to efficient use. Spam impairs this efficiency and therefore impairs the function. This is only not impairment if the intention in installing the software is to display spam. This intention is not present.
I would argue that spam impairs my ability to use my computer - e.g. when 19 out of 20 messages are spam, and I either have to waste time getting to that one message I want to read, or miss it completely.
Intel prosecuted this case based on trespass to the servers, not trespass to the end user desktops. Hence your point is valid, but was not relevant in the case.
The court isn't saying that you can't block this guy's email. They're just are saying that the guy in question didn't tresspass.
Actually, they didn't say that he didn't trespass - quite the contrary, they said he did trespass. They then said, in a nutshell, "but we're not going to enforce trespass in California without proof of damage." They even admitted this is a departure from the law inherited from England.
Yeah, I really forced you to install that mail server.
Yeah, I really forced you to buy a car. So equally if I steal your car, I haven't forced you to buy another, claim on insurance, take a bus in the interim.
Or... "I really forced you to have ears".
If somebody else has their mail server for one purpose, and you exploit it for another contrary to their stated wishes, you are forcing that use on them, period. It's the owner of the thing that gets to say how it's used.
Unfortunately this case was, IMO, very poorly argued by the lawyers for Intel. There were numerous additional arguments they should have taken, but didn't.
I think Bill just won the understatement of the year award.
Really? I would have thought he won the sleazebag liar of the year award. Microsoft has been instrumental in the defeat of numerous good anti-spam bills, including a recent bill that passed the California Senate. They were also instrumental in watering down the Washington State anti-spam law before it was passed, and have recently been trying to get it watered down further. Don't be blinded by what they say - look at what they do, and you can't help but see that Microsoft is pro spam.
It's not complexity that makes software suck. It's the inability of a given development team to handle the complexity they created.
I think you misunderstand the OP's point. The point is not that the development is complex - a quality development team will have no trouble with complexity. The point is that more features mean more things for the user to remember, and/or more options on the menu. As more options are put on the menu, the conceptual distance separating the options will decrease, so that in looking to achieve a particular goal it might be necessary to try more than one option. It may even be possible to achieve the same goal with perhaps various degrees of efficiency and fidelity by using different combinations of options. Modern word processors demonstrate this problem convincingly.
A quality developer can usually juggle dozens of things in their heads at once, but an average end user is far more limited in this regard. Thus while the additional features may not seem to make much difference to the developer, to the user they are intimidating.
This is one of the reasons why most development teams in the software publishing industry now have usability experts. These people don't write code - they spend their time figuring out how to adjust the complexity of a multitude of options for end users, then hand off instructions to the coders to be implemented. This is not a complete solution to the problem of feature-induced complexity, but it helps.
I find your suggestion to be rude and unhelpful.
Of course it's rude, but that's because I find your contributions to be ignorant and unhelpful. Your stuff is so wrong that it really doesn't merit more than the response that it's just plain wrong. It's wrong in the same way that the belief of the Flat Earth Society is wrong.
As I've said before, freecraft is more than look and feel. It's the exact same game. Same units, Same health, Same research tree, same spells, same build order. It's the same game.
That is not the part that's protected by copyright. This is what you don't get - you don't know what copyright protects. You've got people surrounding you who do know and telling you you're wrong, but you continue to blather on about these irrelevant considerations and saying they point to illegality. They don't - they're utterly irrelevant.
I don't work for blizzard. I'm a 20 year old calarts student who lives in los angeles... It is illegal to freely provide such a close imitaion of a retail game, no matter how low-quality you can make it.
I suggest you shut up before you embarrass yourself further. As your area is arts of some description, I futher suggest you leave the legal analysis to those of us who have studied law, because you're wrong. It is quite plain that it's perfectly legal to rip off the style, look and feel of a game.
it's a matter of completely ripping off the design ideas
One more time for the dummies - the ideas aren't protected. The code is protected. The graphics are protected. The trademark is protected. Only a patent can protect ideas, and there's been no indication that there is a patent involved.
Sounds to me like these people have way overreacted, but without seeing the letter I can't tell for sure.
Anyway, check out this screenshot. Compare with this one.
Not sure your comparison is meaningful - FreeCraft can use *Craft graphics if you have them on your system (such as by having bought the game). The screenshots you showed were probably created that way. On the other hand, FreeCraft also has its own graphics that are not copied. Those graphics reflect perhaps the ideas of the original(which is not protected), without the expression (which is).
VAGUELY similiar? It looked like they sawed it down and copied it exactly. Sorry, but even if they wrote their own code and did their own artwork, it still looked exactly like WC2. I dont think any other industry allows people to create a fake lookalike product, so let them go make fake purses or something.
The look-and-feel lawsuits were lost by the agressors over a decade ago. It is quite clear that you can duplicate functionality from the ground up, as long as you copy neither code nor images.
Does anybody know where there is a copy of the letter? This strikes me as something that could be fixed.
This page claims: "It is always permissible to use a patented invention for research purposes," but this page denies the existence of such an exception to the patent monopoly... Any lawyers in the audience?
Depends on how you define "research purposes". Without checking the specifics of US patent law, patents generally prevent industrial or commercial exploitation - if the third party exploitation cannot be slotted into the industrial or commercial categories, it may be OK.
First, on derivative works. SCO's apparent expansive definition is clearly wrong. From 17 USC 101:
While the section starts with "based on", it then clarifies with categories. The categories all show that this clearly contemplates something that contains intellectual property from the original work. Then there's the terms "recast, transformed, or adapted" - clearly add-ons involve none of these transformations, so the question is whether the alleged derivative contains original IP. Computer Associates v Altai clearly indicates that program interfaces are not part of the intellectual property. Thus the claim against stuff "added to" UNIX by others is derivative is a complete non-starter.
Second, the claim that the contract with IBM expands on the definition of derivative work is completely irrelevent to Linux. IBM could lose, but nobody other than IBM and SCO are parties to the contract, and thus nobody else can be held to it.
ILT's descriptions of the other stuff make it sound extraordinarily weak too.
The stuff about not wanting violations removed from the kernel before the trial is extremely suspicious. This will clearly give rise to an estoppel against anybody they try to sue over use and copying in the interim, and in any case common law principles regarding failure to mitigate the damages would clearly apply to prevent damages being awarded for such use. Removal of the IP from Linux would not affect the IBM case as regards stuff that happened before such removal. It would also mean they've contributed to the continued public exposure of their alleged trade secrets, thus seriously undermining their trade secrets case - it is the information itself that gets protection as a trade secret, not its identification with SCO. There is no legal reason why they would take the course of avoiding the IP being removed from Linux before the trial.
I'm also seriously questioning the validity of the NDA - it is likely that they made representations that the person signing the NDA would be given relevant information to assess the validity of SCO's claims - in fact I'm sure they did so in the media. Clearly this was a real inducement to enter into the NDA - in fact ILT basically said so. Yet it seems the meeting was carefully constructed to prevent ILT from being able to reliably make any such assessment. Assuming the foregoing, the contract could be set aside by a court for fraud.
In my assessment, this is starting to look more and more like an elaborate bluff. The legal theories that are leaking from SCO are just plain ludicrous. Their behaviour with the NDAs and the limited information given to people who sign them suggest there was never any intention to have a real assessment of the merits.
I'm both a top notch coder and a top notch law student, and I'd seriously like to go a couple of rounds with the SCO executives and their lawyers to get to the bottom of this, but there's no way with the NDA - at least not in that form. The rules of equity should be adequate protection anyway.
But someone has plainly pointed out to them that these actions are possibly illegal and they could be charged with misrepresentation. This is certainly true under the laws of the European Union.
It's also definitely illegal in Australia.
Why cant anyone countersue for causing damage to business with unsubstantiated rumours like in Europe?
They can. It's the tort of "injurious falsehood".
if IBM buys out SCO, doesn't that mean that IBM will inherit all of the legal headaches that SCO has raised?
Not if it's a buy-out as opposed to a merger. They could either buy the IP, or buy the company and leave it as a subsidiary. Either way IBM would not be insulated from the bad stuff.