Fair use is a defense to copyright infringement. If you don't infringe, you can't assert the defense.
AKAIK, there is no affirmative 'right' at the moment, recognized by courts, that would allow someone to sue a content provider to provide a non-DRM'd portion of a work for 'fair use' purposes.
Because you can't predict any of these things, it's much better NOT to reduce our genetic diversity by artificial selection rules:
1. how the gene may mutate in the future (i.e. it may produce beneficial effects - this is key.)
2. how the gene will manifest in adulthood.
3. the effect of the gene on the person's activity as a whole, and thereby, on society.
etc.
The only cases in which I would support aborting babies with specific genes would be if so many people with a severe problem are born that it becomes an unmanageable burden on society, or the problem is so crippling that the person is completely unable to function. But in general, we need to maintain diversity in order to ensure our continued existence.
No one knows how many or what sorts of people will be able to develop immunity to future epidemics, or what sorts of people will be best able to do the technological work necessary for a future technology. For all we know, severely autistic people could save humanity.
It's been theorized that the band of humans that crossed the bering strait into North America could have numbered as few as 10 or so. Presumably, many others died along the way. Their diversity increased the likelihood that at least a few would complete the journey.
Fair use is an affirmative defense to copyright infringement, not a right. Therefore, if you can't infringe, you just don't have to defend, and don't need a defense.
The Supreme Court up to now has maintained that first amendment concerns are 'built into' copyright law, and so usually need not be considered in infringement cases. But if infringement is almost absolutely precluded by DRM, the SC could conceivably come to the conclusion that an affirmative defense is no longer sufficient to protect first amendment interests, and carve out some actual rights to satire, etc., based on the first amendment.
You're looking at this completely backwards. Wine is not trying to innovate, they're trying to use someone else's innovation. They're not even trying to claim that they're innovating. They merely want to use someone else's method of handling exceptions.
Wine is trying to appropriate technology for a particular community's benefit: the Linux community. The Linux community is not everyone. Even if it were, Wine is not _adding_ anything to the store of knowledge in the public domain. The purpose of patents is to get people to bring forth innovations. The purpose is not to incentivize moving workable applications from one platform to another to serve the interests of a particular community.
Anyway, the point is that Borland had a patentable idea, and Wine simply wants to use it, even though they could do it in other ways.
What I want to know is, why does wine think that they have a right to proprietary patented features of windows? They are trying to develop an alternative that competes at some level with windows for compiling windows software. MS licensed that patent in order to use SEH, so why shouldn't wine have to license it?
This all seems so infantile. "Gimme gimme gimme" seems to be the mantra of the OSS community - with no recognition of anything but a selfish "right" to access, redevelop, and make free whatever they want...
Stupidest of all is the fact that there are workarounds. These guys are simply punting on the idea of actually working around the problem, seemingly because they just want to whine about it and about software patents. If they really want to get some respect, they should implement a pre-compiler or add some code to gcc to handle SEH in a different way.
I don't see anyone disputing that Borland has a valid claim to this invention. If they hired developers, paid them, invented this way of doing it, and patented it, they get to say who can use it until the patent expires.
First, I believe you mean authority, not jurisdiction.
Second, you're right that industry will try to get Congress to change the law.
But this is still a great decision, because it means we still have enforceable limitations on the authority of agencies. It means that the courts are not going to allow them to overstep their authority as delegated by Congress.
This was not so clear in the past (until the 70's or so). Under Chevron, courts give deference in most cases to agencies' interpretations of their own statutes. This decision shows that the court is strictly applying the limitations on Chevron deference that were established by prior cases.
So Congress will now have to actually specify and delegate the power to regulate such things in a statute, if they can manage it. Even if they do, it's better than leaving it entirely to a bureaucratic agency...
"Richard Stallman proposes three remedies that would help enable free software operating systems such as GNU/Linux compete technically..."
So really he simply wants to put restrictions particularly on Microsoft in order to allow nonprofit projects to compete with Microsoft. I'd actually rather promote for-profit projects, since they pay Americans a salary for writing software.
"1. Require Microsoft to publish complete documentation of all interfaces.... Microsoft should not be allowed to use a nondisclosure agreement..."
So Microsoft now loses the ability to freely contract with other companies or parties. Interesting, how draconian Stallman can get. Further, he demands disclosures from MS of private information. I should demand he write a better book for me.
"2. Require Microsoft to use its patents for defense only..."
So MS now has patents but can't enforce them. Stallman clearly has no idea how patent law works. The patent holder sues people for infringement. Patents therefore are always used offensively, unless someone else sues MS and MS can argue that a patent they have invalidates the plaintiff's patent. This would be crap. This would basically mean that MS's patents become equivalent to a public disclosure of information that can be used as prior art.
Now, I haven't had antitrust yet, but I'm sure there could be issues of takings under the constitution, equal protection, etc., UNLESS Microsoft agreed to all of this, and possibly even then...
"3. Require Microsoft not to certify any hardware as working with Microsoft software, unless the hardware's complete specifications have been published..."
Now we get to the first amendment! Gee, MS is really hurting now; too bad there's no more USSR or they'd probably move there. They can't even say that hardware works with Windows?
Me: "Hey Bill, will my machine work with your OS?"
Bill: "Uh... I... am not allowed to say... Why don't you publish your specs first?"
The problem with this view is that the open standards of the internet did not directly cut into the operating systems or office software market. They produced a demand for more features in those markets.
In the case you're talking about, MS would be directly killing their cash cow Windows by promoting Linux. It is possible that in the end they'd make more, but neither they nor their investors can realistically push a strategy that phases out Windows or Office when that's where the money comes from. This would be a very risky strategy...
What's the problem? The problem is that Microsoft wants to make money, and anything that the OSS community would ask them for is basically going to get them less money.
File format lock-in is one BIG reason that people don't want to switch. There are many other forms of inertia as well, but it is clearly in MS's interest to increase inertia and decrease use of open standards, for the most part.
If MS cares about its investors, it should be trying to make them some money. In fact, I would say that opening its file formats should be a real issue to those investors. Unless the argument is made that it's a PR investment, MS should not open their formats any more than their users actually demand for their daily workflow...
2. You can't always 'make' something of your degree if the market sucks. You have to at least consider things from a practical angle, and stretch/diversify towards what seems to be the best angle considering all these factors.
At CMU, the ECE department is thought to be a bit easier, so many people transfer out if they can't hack CS. That said, most of the ECE people do a lot of programming, and take most of the freshman and sophomore CS courses or their rough equivalents.
Double majoring is _hard_, as I found out, so I ended up majoring in CS and only minoring in ECE. That was a good decision in my case though, because I'm going into patent law now, and it allows me the flexibility to handle electrical applications as well as software-related applications, and the two are often mixed in practice.
Based on my experience, unless you're doing research, games, compilers, or the like (think MS Research or Google), you may end up (as a CS major) doing software engineering that's not that technically demanding in the sense of putting your math to work. Although architecting non-technical large applications is a challenge, it's not generally the challenge that requires proofs and development of new or specialized algorithms.
I would suggest at least minoring in Electrical or Computer Engineering for those reasons. It improves your options in the market, and improves your understanding of applied CS, e.g. in implementing encryption or parallel processing. If you're really a math-head, you can get a master's in CS and move on.:)
I'm a law student, but I think your description may be a bit misleading. Consumer confusion is usually more relevant to the trademark issues, although it may be considered under the question of substantial similarity in the copyright infringement inquiry.
He used walmart-foundation rather than walmartfoundation in the URL. This could easily lead to what's called initial interest confusion, where consumers are siphoned away from a legitimate site by a confusing label. This can be a basis for a claim of trademark infringement. If he had used walmart-foundation-sucks or something similar, it would avoid this problem. Also, there's a big trademark dilution law getting ready to go through, that will increase the likelihood that trademark owners can succeed in suits for 'tarnishing' or 'blurring' of their mark, e.g. by associating it with pornography.
As for parody, the more important considerations are of fair use, such as whether the parody is criticizing or commenting on the actual work that's copied, whether the copier has taken more than what he needed in order to make the parodic point, whether the use is commercial, and the effect of the parody on the market for the works.
First of all, there are more young people who pirate than just about anyone else, because they don't have to work and can sit at home all evening trolling p2p networks and IRC...
Second, you know as well as I do that there is a theory, called _economics_, which posits a model, in which rational people will attempt to maximize their utility.
Under this crazy theory, it's been shown that people choose cheaper products in general, so sellers will copy in general, because copying is cheaper in general, so the choice between innovating and copying very much tilts towards copying.
IP is an attempt to change this by changing the economic incentives of market players rather than by bureaucratic direction or control (a much worse option, imho). When people do their cost-analysis in a world with IP, it's much more likely that they will choose innovating rather than copying, because everyone else can't free-ride off their work.
So where is the connection? What he's saying inartfully is that unless we have international IP protection, it may not be economically feasible for our children to have a career path in knowledge industries, industries of "learning and innovation."
BUT, what about the kid who circumvents these restrictions because he's obsessed with gaming as a way to procrastinate and avoid doing schoolwork or anything else?
I think there's a use for these things, and publishing circumventions only hurts the parents who have a legitimate right to restrict their kids in whatever way they want...
In my SCS class of '98 there were about 110 people if I recall. 8 were women initially, and I think we ended up with about 5 or so graduating in SCS. The others switched out to ECE or other things...
Slashdot Mirror
Not really.
Fair use is a defense to copyright infringement. If you don't infringe, you can't assert the defense.
AKAIK, there is no affirmative 'right' at the moment, recognized by courts, that would allow someone to sue a content provider to provide a non-DRM'd portion of a work for 'fair use' purposes.
Because you can't predict any of these things, it's much better NOT to reduce our genetic diversity by artificial selection rules:
1. how the gene may mutate in the future (i.e. it may produce beneficial effects - this is key.)
2. how the gene will manifest in adulthood.
3. the effect of the gene on the person's activity as a whole, and thereby, on society.
etc.
The only cases in which I would support aborting babies with specific genes would be if so many people with a severe problem are born that it becomes an unmanageable burden on society, or the problem is so crippling that the person is completely unable to function. But in general, we need to maintain diversity in order to ensure our continued existence.
No one knows how many or what sorts of people will be able to develop immunity to future epidemics, or what sorts of people will be best able to do the technological work necessary for a future technology. For all we know, severely autistic people could save humanity.
It's been theorized that the band of humans that crossed the bering strait into North America could have numbered as few as 10 or so. Presumably, many others died along the way. Their diversity increased the likelihood that at least a few would complete the journey.
IANAL yet. IAALS.
Fair use is an affirmative defense to copyright infringement, not a right. Therefore, if you can't infringe, you just don't have to defend, and don't need a defense.
The Supreme Court up to now has maintained that first amendment concerns are 'built into' copyright law, and so usually need not be considered in infringement cases. But if infringement is almost absolutely precluded by DRM, the SC could conceivably come to the conclusion that an affirmative defense is no longer sufficient to protect first amendment interests, and carve out some actual rights to satire, etc., based on the first amendment.
Gee, I hate to think what you'd do if they just decided to stop making those shows...
That tin foil hat looks nice on you.
You're looking at this completely backwards. Wine is not trying to innovate, they're trying to use someone else's innovation. They're not even trying to claim that they're innovating. They merely want to use someone else's method of handling exceptions.
Wine is trying to appropriate technology for a particular community's benefit: the Linux community. The Linux community is not everyone. Even if it were, Wine is not _adding_ anything to the store of knowledge in the public domain. The purpose of patents is to get people to bring forth innovations. The purpose is not to incentivize moving workable applications from one platform to another to serve the interests of a particular community.
Anyway, the point is that Borland had a patentable idea, and Wine simply wants to use it, even though they could do it in other ways.
What I want to know is, why does wine think that they have a right to proprietary patented features of windows? They are trying to develop an alternative that competes at some level with windows for compiling windows software. MS licensed that patent in order to use SEH, so why shouldn't wine have to license it?
This all seems so infantile. "Gimme gimme gimme" seems to be the mantra of the OSS community - with no recognition of anything but a selfish "right" to access, redevelop, and make free whatever they want...
Stupidest of all is the fact that there are workarounds. These guys are simply punting on the idea of actually working around the problem, seemingly because they just want to whine about it and about software patents. If they really want to get some respect, they should implement a pre-compiler or add some code to gcc to handle SEH in a different way.
I don't see anyone disputing that Borland has a valid claim to this invention. If they hired developers, paid them, invented this way of doing it, and patented it, they get to say who can use it until the patent expires.
See? Security through obscurity _can_ be effective.
First, I believe you mean authority, not jurisdiction.
Second, you're right that industry will try to get Congress to change the law.
But this is still a great decision, because it means we still have enforceable limitations on the authority of agencies. It means that the courts are not going to allow them to overstep their authority as delegated by Congress.
This was not so clear in the past (until the 70's or so). Under Chevron, courts give deference in most cases to agencies' interpretations of their own statutes. This decision shows that the court is strictly applying the limitations on Chevron deference that were established by prior cases.
So Congress will now have to actually specify and delegate the power to regulate such things in a statute, if they can manage it. Even if they do, it's better than leaving it entirely to a bureaucratic agency...
The Romans had abaci-like calculating devices that used pebbles or marbles for the beads.
How about a GPL Merit Badge?
;)
How about a communist Merit Badge?
Litigation costs are not unique to the patent system.
No wonder most capitalists can't accept Stallman.
Pare this down:
"Richard Stallman proposes three remedies that would help enable free
software operating systems such as GNU/Linux compete technically..."
So really he simply wants to put restrictions particularly on Microsoft in order to allow nonprofit projects to compete with Microsoft. I'd actually rather promote for-profit projects, since they pay Americans a salary for writing software.
"1. Require Microsoft to publish complete documentation of all interfaces.... Microsoft should not be allowed to
use a nondisclosure agreement..."
So Microsoft now loses the ability to freely contract with other companies or parties. Interesting, how draconian Stallman can get. Further, he demands disclosures from MS of private information. I should demand he write a better book for me.
"2. Require Microsoft to use its patents for defense only..."
So MS now has patents but can't enforce them. Stallman clearly has no idea how patent law works. The patent holder sues people for infringement. Patents therefore are always used offensively, unless someone else sues MS and MS can argue that a patent they have invalidates the plaintiff's patent. This would be crap. This would basically mean that MS's patents become equivalent to a public disclosure of information that can be used as prior art.
Now, I haven't had antitrust yet, but I'm sure there could be issues of takings under the constitution, equal protection, etc., UNLESS Microsoft agreed to all of this, and possibly even then...
"3. Require Microsoft not to certify any hardware as working with Microsoft
software, unless the hardware's complete specifications have been
published..."
Now we get to the first amendment! Gee, MS is really hurting now; too bad there's no more USSR or they'd probably move there. They can't even say that hardware works with Windows?
Me: "Hey Bill, will my machine work with your OS?"
Bill: "Uh... I... am not allowed to say... Why don't you publish your specs first?"
Me: "WTF?"
The problem with this view is that the open standards of the internet did not directly cut into the operating systems or office software market. They produced a demand for more features in those markets.
In the case you're talking about, MS would be directly killing their cash cow Windows by promoting Linux. It is possible that in the end they'd make more, but neither they nor their investors can realistically push a strategy that phases out Windows or Office when that's where the money comes from. This would be a very risky strategy...
What's the problem? The problem is that Microsoft wants to make money, and anything that the OSS community would ask them for is basically going to get them less money.
File format lock-in is one BIG reason that people don't want to switch. There are many other forms of inertia as well, but it is clearly in MS's interest to increase inertia and decrease use of open standards, for the most part.
If MS cares about its investors, it should be trying to make them some money. In fact, I would say that opening its file formats should be a real issue to those investors. Unless the argument is made that it's a PR investment, MS should not open their formats any more than their users actually demand for their daily workflow...
Heh. That's why my middle name is Campbell, or "Caimbeul", crooked mouth in scotts gaelic.
I'm not a big trademark buff, but from what I hear, it's definitely going to pass.
My point is only that ... well, 2 things.
1. It's good to diversify - you agree.
2. You can't always 'make' something of your degree if the market sucks. You have to at least consider things from a practical angle, and stretch/diversify towards what seems to be the best angle considering all these factors.
Yeah... that's why I said 'thought to be easier'. In my experience, it was a bit easier in undergrad maybe, but mostly just different.
;)
The difference was between things like proving things about algorithms in or graphs versus differential equations and all that math for signals stuff.
I guess ECE required day-to-day math - i.e. solving equations - while CS required lots of proofs.
Kudos to you for having the focus as an undergrad to get through that double major...
At CMU, the ECE department is thought to be a bit easier, so many people transfer out if they can't hack CS. That said, most of the ECE people do a lot of programming, and take most of the freshman and sophomore CS courses or their rough equivalents.
:)
Double majoring is _hard_, as I found out, so I ended up majoring in CS and only minoring in ECE. That was a good decision in my case though, because I'm going into patent law now, and it allows me the flexibility to handle electrical applications as well as software-related applications, and the two are often mixed in practice.
Based on my experience, unless you're doing research, games, compilers, or the like (think MS Research or Google), you may end up (as a CS major) doing software engineering that's not that technically demanding in the sense of putting your math to work. Although architecting non-technical large applications is a challenge, it's not generally the challenge that requires proofs and development of new or specialized algorithms.
I would suggest at least minoring in Electrical or Computer Engineering for those reasons. It improves your options in the market, and improves your understanding of applied CS, e.g. in implementing encryption or parallel processing. If you're really a math-head, you can get a master's in CS and move on.
I'm not a lawyer, and this is not legal advice.
I'm a law student, but I think your description may be a bit misleading. Consumer confusion is usually more relevant to the trademark issues, although it may be considered under the question of substantial similarity in the copyright infringement inquiry.
He used walmart-foundation rather than walmartfoundation in the URL. This could easily lead to what's called initial interest confusion, where consumers are siphoned away from a legitimate site by a confusing label. This can be a basis for a claim of trademark infringement. If he had used walmart-foundation-sucks or something similar, it would avoid this problem. Also, there's a big trademark dilution law getting ready to go through, that will increase the likelihood that trademark owners can succeed in suits for 'tarnishing' or 'blurring' of their mark, e.g. by associating it with pornography.
As for parody, the more important considerations are of fair use, such as whether the parody is criticizing or commenting on the actual work that's copied, whether the copier has taken more than what he needed in order to make the parodic point, whether the use is commercial, and the effect of the parody on the market for the works.
Baloney.
First of all, there are more young people who pirate than just about anyone else, because they don't have to work and can sit at home all evening trolling p2p networks and IRC...
Second, you know as well as I do that there is a theory, called _economics_, which posits a model, in which rational people will attempt to maximize their utility.
Under this crazy theory, it's been shown that people choose cheaper products in general, so sellers will copy in general, because copying is cheaper in general, so the choice between innovating and copying very much tilts towards copying.
IP is an attempt to change this by changing the economic incentives of market players rather than by bureaucratic direction or control (a much worse option, imho). When people do their cost-analysis in a world with IP, it's much more likely that they will choose innovating rather than copying, because everyone else can't free-ride off their work.
So where is the connection? What he's saying inartfully is that unless we have international IP protection, it may not be economically feasible for our children to have a career path in knowledge industries, industries of "learning and innovation."
Yes, and WIPO used to be BERPI. I'll bet you didn't know it was actually an improvement.
Yeah. You have a point.
BUT, what about the kid who circumvents these restrictions because he's obsessed with gaming as a way to procrastinate and avoid doing schoolwork or anything else?
I think there's a use for these things, and publishing circumventions only hurts the parents who have a legitimate right to restrict their kids in whatever way they want...
In my SCS class of '98 there were about 110 people if I recall. 8 were women initially, and I think we ended up with about 5 or so graduating in SCS. The others switched out to ECE or other things...