If the copyright owner loses a potential sale due to a violation of copyright law, then it is a real loss, just as much as if you lose potential profits because someone you contracted with failed to observe the contract.
The law doesn't take the simple-minded view that a loss must be money taken away from someone, it can also be something of value that someone would have rightfully had but for another person's wrongful conduct.
Lost profits are considered a loss under U.S. law when someone has wrongfully caused a business to lose customers. In order to get damages for such loss, the amount must be reasonably determinable, otherwise the plaintiff business can likely only obtain an injunction.
The question is emphatically NOT "what should copyright cover?" The law says what copyright covers. The question in these cases is whether or not Grokster and StreamCast actually are liable for contributory or vicarious copyright infringement under the law. There are a very detailed series of questions the courts ask in order to determine this.
If the public decides it wants to violate copyright law, it had better get copyright law changed or be liable for infringement.
I used to think that engineers were better about not jumping to conclusions than other people.
Well, maybe none of you are really engineers.
You can't just point at any old collar-related computing thingie and say it's "prior art"... Prior art is generally a reference from before the patent was filed that teaches each element of a claim.
None of the references pointed to here have all of the elements of their first claim. There have to be _movable_ computing elements in a collar that _extend_ out, such as a _screen_. I don't see such things in any of those references.
Here's the section that is different and far more limiting than anyone here has suggested:
. . . said computer components movably enclosed longitudinally within said collar at a location where they can be extended outside said collar when in use and having means when used to be moved adjacent said user's face . . ..
To clarify further, anything NOT having these capabilities would not infringe.
You could find the patent obvious based on those references, or could find that if you combined some of those references they would teach all the elements of this claim, but if you _read_ it you see that the generalizations made here don't fit what's being described.
Although the figures don't define the scope of the patent (the claims do), it would be helpful to look at the figures on the PTO site.
RICO, wiretapping laws, and conspiracy liability, basically led to the downfall of organized crime to a large extent in the U.S.
The government was given very broad powers, and people in criminal law generally seem to agree that this is what it took, and why the syndicates were finally taken down.
Sure, it's nice to have the right to collude secretly and organize secretly just for your jollies, or to fight an oppressive government, but practically speaking, I'm not sure we can live without some limitations on that, because the same freedom allows organized crime to take hold and potentially insulate the organization from any prosecution...
As a law student, I can tell you that this is what lawyers do every day. There are millions of difficult questions just like this one that appear over and over in the law.
Based on all the evidence you can bring to bear, and all the inferences and legal precedent you can bring to bear, you have to try to prove your case, i.e., that it was or wasn't knowing infringement.
Some questions like this one can only be decided on a case by case basis. As Oliver Wendell Holmes said, "Experience is the life of the law."
If you reduce any machine or process to inputs, *a function* and outputs, you could say they're all mathematics.
But the difference in function has meaning to us, practical meaning, as humans. Software that can reliably pinpoint tumors in medical images is not "just mathematics." It has meaning and it has social ramifications.
You are trying to look at the issue, as many of the people here on slashdot try to do, completely objectively. That is, you are tending in the direction of trying to see the universe as it is without any subjective human categorizations. But human life and human society do not and cannot function this way.
There are distinctions that we can make between software and mathematics. The fact that you can generalize and generalize until everything is mathematics says nothing about what the practical attributes of software are.
In other words, you are looking at the uber-parent class's properties and methods instead of the ultimate derived class's properties and methods.
According to this logic, you might argue that all english textual trademarks are just letters, and letters are just information which can be represented in binary, which means they are all just numbers, so there's no reason to prefer any one number over another. To paraphrase, "Since when did we get to register numbers as trademarks?" Clearly, by this point, you've lost all concept of the actual properties of various trademarks in the human environment.
Well, in fact many chemicals exist solely because someone created them artificially. There are many modern chemicals that do not occur in nature. For that sort of substance, the simple existence of the substance itself is often a great contribution to technological advancement.
There are four types of patentable subject matter under 35 U.S.C. section 101: processes, machines, manufactures, and compositions of matter.
If flash mobs have the power to overcome government security at any installation, we could be headed for anarchy.
Consider. There are a lot of radical groups out there. Even some extremely radical versions of groups whose ideology I would agree with if more temperate.
Imagine that one of these groups, PETA for example, staged a sit in in the White House, because they were able to corral a couple thousand people from the entire U.S. within 10 minutes at the White House gates, and simply push through. If they were fanatical enough, and the guards were cautious enough, not many would likely get hurt.
We would have a national crisis because a minor faction was able to organize a pinpoint strike at a weak point of our government's infrastructure. We have to at least consider that this is a threat to stability, don't we???
software builds on so much previous work... patenting it is laughable.
software is a means of making an existing job easier.
taking an existing practice and doing it on a computer doesn't make it innovative.
None of this supports the proposition that no software is innovative.
All you're saying is (in a conclusory way) that some software is not innovative, and therefore you think no software is innovative. That's not an argument.
Furthermore, it's OBVIOUS that all other technologies are based on hundreds or thousands of years of prior art. The patent system REQUIRES patentable matter to be novel and nonobvious. This means that if ANYONE can show that the prior art teaches what's in the patent, it's invalid.
If you think that it's too expensive for people to find prior art, or bring it to the patent office, that's one thing. But nothing you say here is convincing.
I agree. It's not effective, but it's what they are trying to do.
I refuse to believe, as the parent averred, that they are simply trying to create more bases upon which they can charge people for their jollies...
My take is that, however imperfect their solution is at this point, they are going in the right direction and trying to do the right thing by focusing on identification. But this is only a first step at any rate... Down the road we'll look back and see this as the first step towards a full legal authentication system.
No, you numbnut, the idea is to require you to have a friggin license plate, so when you break the law like in a hit and run, they can actually find you.
How incredibly unjust!
(By the way, there are actually copyright laws, and they are actually there for a reason or two.)
(First, please note: I am not a lawyer, only a law student. Don't rely on this as legal advice!)
That's not true. The finder has the basic common law title to the item as against all but the original owner. Title to property is relative. The finder has "worthier title" to the property than anyone but the original owner.
Now everything I'm about to say is based on the presumption that this is "lost property" rather than "abandoned property"...
This seems to be valid law in NY. See Hume v. Elder, 178 A.D. 652, 165 N.Y.S. 849 (2d Dep't 1917); Forman v. Rosetti, 38 Misc. 2d 317, 238 N.Y.S.2d 328 (City Civ. Ct. 1963); Garramone v. Simmons, 177 Misc. 330, 30 N.Y.S.2d 465 (Sup 1941)...
But at the moment he finds it, he only has an expectation of that title in NY, and he has to wait for the statutory time period to elapse, and the owner not to claim the item, for title to vest. See Bisignano v. Harrison Central School Dist., 113 F. Supp. 2d 591, 147 Ed. Law Rep. 529 (S.D.N.Y. 2000).
He gives it to the police, they keep it for a period, and when the owner doesn't claim it, and the time period expires, he can demand it back and his title vests.
The periods are described in N.Y. Pers. Prop. Law 253(7), and are basically...
* three months, if the property has a value of less than $ 100.00
* six months, if the property has a value between $ 100.00 and $ 499.99
* one year, if the property has a value between $ 500.00 and $ 4999.99
* three years, if the property has a value of $ 5000.00 or more
But there's more! This guy may be guilty of a misdemeanor:
N.Y. Pers. Prop. Law 252(1) says he has to turn it in to the cops within 10 days. 252(3) says anyone convicted of noncompliance is guilty of a misdemeanor punishable by up to a $100 fine or 6 months in jail or both.
He also may be guilty of larceny:
N.Y. Penal Law 155.05(2)(b) says this could be larceny if he doesn't take reasonable measures to return the property.
Just goes to show, use your instincts about what's right, and you'll probably be much better off...;)
Ummm.
Isn't the price ALWAYS the reason something is pirated???
You make it sound like pirates are all making some high-minded philosophical decisions about it, which is complete BS. They're just rationalizations.
But, if you still think software is actually overpriced, think about this:
As more people share a piece of software, it forces the price to go up in order for the creator to cover his costs. Basically, if one person buys the app and gives it to 100 people, the author has to charge 100 times as much for one copy to cover his costs.
Most creators won't be able to charge this much because people aren't cooperating with those 100 friends and going in on the deal together most of the time (although that happens too, rarely). But at any rate, the phenomenon forces prices up until the creator can't afford to cover his development costs, and gives it up.
Since this is the result, it's not smart to pirate just because you think the app is too expensive -- if it's pirated enough, it will just get more expensive until it's eventually abandoned.
Everyone is assuming that the author of the software doesn't warn the user about this. I guess this guy did not warn the user, but if the software informed the user what it did, and required the user to type "yes, I get it, and I still want to install you", this should be fine...
Not to mention, RMS suggests that one must constantly search one's software for potential infringements. Does anyone really think this is how reality works??
You write your software, and if you find out something significant you're using is probably patented, you check it out and avoid it. If you don't know of anything, you just do it. When someone notifies you of infringement, you check it out, and decide whether you want to avoid it, go to court, or license the patent.
There are so many inaccurate assumptions about patents here. How many of you know that almost all patents are rejected the first time? How many of you know that patents require periodic maintenance fees to keep, and something like 70% of patent holders let their patents expire before the full term is up? And how many know that most patent firms provide pro bono services to inventors, authors, and composers on a regular basis?
The ONLY argument against software patents that I consider serious is the economic argument that individual inventors or writers of free software don't have the funds to patent their works, or don't have the funds to fight patent infringement suits. Basically, that patents and patent litigation are too expensive to allow free software to properly flourish. If this is true, it's a problem, but I see many arguments against it, and disallowing software patents is not a solution to me...
First, consider the litigation issue. I would argue that first, if an individual coder or a free software project is threatened with litigation, he or it can simply avoid the patent. Yes. Do it _another_way_. It may not be the best way, but then again, he didn't think of it first, did he?? He can go ahead and use it when the patent expires.
And don't whine that it's impossible to work around a patent like that. If you were really sharp, you'd develop an improvement on the patent in question, file a provisional application on it, and go cross-license with the original patent holder. But otherwise, just do it the old way. You can always use the prior art. If you can't achieve what you want with the prior art, well, there must be quite a bit of value in the patent, mustn't there?
You see, patents are about making money from an invention. Most coders simply don't care about money, so they get shafted day after day, year after year. How many of you can honestly tell me that you don't know of a friend or colleague who has been taken advantage of by his company? Coders, hackers, et al., don't care about money. But they still need it. Patents are a way that they can actually interest the people who do care about money in their inventions, and avoid being shafted.
I see much of the opposition to software patents in this community as a direct result of hackers' innate disinterest in and distrust of money, and their innate tendency to get themselves shafted.
My other point, about the cost of getting patents, needs to be addressed, but there has to be some cost, and a lot of work goes into a patent. An inventor has to make a decision and take a risk. It's the same as any other speculative endeavor. Real estate, business, it's all the same. The PTO should work to reduce fees and streamline the process (and they are), and lots of organizations are pushing the PTO to improve. Hackers like to do their own thing and avoid thinking about practicalities, but there are a lot of practicalities when it comes to an agency like the PTO, and things don't move quickly. Things have gotten a lot better and they'll get better yet. That's how it works, and just because it's slow doesn't mean it should be scrapped. For those of you looking for work, think about becoming an examiner and helping them with a thankless job.
In the end, you have to think about it with a larger perspective. How many things are going to be done with software that used to be done with machines? Should an invention that would have been made of wood and iron in Da Vinci's day be unpatentable
What is property?
on
Is IP Property?
·
· Score: 2, Interesting
I just want to make the point to all you non-lawyers out there that property is not just physical objects.
Property is anything in which you have "property rights". Property rights are a bundle of rights, different for different types of property, that give you some level of legal control over the object of those rights.
Probably most of the property in our society is not actually in physical objects. Consider money. Consider easements, equitable servitudes, usufructs, licenses, etc...
To say that intellectual property is not property is actually blatantly false when you understand what property actually is. To say that inventions shouldn't be the object of property rights, well, now you're at least being honest. (Although, I agree with the previous poster about creative incentives)...;)
Slashdot Mirror
If the copyright owner loses a potential sale due to a violation of copyright law, then it is a real loss, just as much as if you lose potential profits because someone you contracted with failed to observe the contract.
The law doesn't take the simple-minded view that a loss must be money taken away from someone, it can also be something of value that someone would have rightfully had but for another person's wrongful conduct.
Lost profits are considered a loss under U.S. law when someone has wrongfully caused a business to lose customers. In order to get damages for such loss, the amount must be reasonably determinable, otherwise the plaintiff business can likely only obtain an injunction.
The question is emphatically NOT "what should copyright cover?" The law says what copyright covers. The question in these cases is whether or not Grokster and StreamCast actually are liable for contributory or vicarious copyright infringement under the law. There are a very detailed series of questions the courts ask in order to determine this.
If the public decides it wants to violate copyright law, it had better get copyright law changed or be liable for infringement.
Well, maybe none of you are really engineers.
You can't just point at any old collar-related computing thingie and say it's "prior art"... Prior art is generally a reference from before the patent was filed that teaches each element of a claim.
None of the references pointed to here have all of the elements of their first claim. There have to be _movable_ computing elements in a collar that _extend_ out, such as a _screen_. I don't see such things in any of those references.
Here's the section that is different and far more limiting than anyone here has suggested:
To clarify further, anything NOT having these capabilities would not infringe.
You could find the patent obvious based on those references, or could find that if you combined some of those references they would teach all the elements of this claim, but if you _read_ it you see that the generalizations made here don't fit what's being described.
Although the figures don't define the scope of the patent (the claims do), it would be helpful to look at the figures on the PTO site.
I just want to suggest something to think about.
RICO, wiretapping laws, and conspiracy liability, basically led to the downfall of organized crime to a large extent in the U.S.
The government was given very broad powers, and people in criminal law generally seem to agree that this is what it took, and why the syndicates were finally taken down.
Sure, it's nice to have the right to collude secretly and organize secretly just for your jollies, or to fight an oppressive government, but practically speaking, I'm not sure we can live without some limitations on that, because the same freedom allows organized crime to take hold and potentially insulate the organization from any prosecution...
As a law student, I can tell you that this is what lawyers do every day. There are millions of difficult questions just like this one that appear over and over in the law.
Based on all the evidence you can bring to bear, and all the inferences and legal precedent you can bring to bear, you have to try to prove your case, i.e., that it was or wasn't knowing infringement.
Some questions like this one can only be decided on a case by case basis. As Oliver Wendell Holmes said, "Experience is the life of the law."
If you reduce any machine or process to inputs, *a function* and outputs, you could say they're all mathematics.
;)
But the difference in function has meaning to us, practical meaning, as humans. Software that can reliably pinpoint tumors in medical images is not "just mathematics." It has meaning and it has social ramifications.
You are trying to look at the issue, as many of the people here on slashdot try to do, completely objectively. That is, you are tending in the direction of trying to see the universe as it is without any subjective human categorizations. But human life and human society do not and cannot function this way.
There are distinctions that we can make between software and mathematics. The fact that you can generalize and generalize until everything is mathematics says nothing about what the practical attributes of software are.
In other words, you are looking at the uber-parent class's properties and methods instead of the ultimate derived class's properties and methods.
According to this logic, you might argue that all english textual trademarks are just letters, and letters are just information which can be represented in binary, which means they are all just numbers, so there's no reason to prefer any one number over another. To paraphrase, "Since when did we get to register numbers as trademarks?" Clearly, by this point, you've lost all concept of the actual properties of various trademarks in the human environment.
I think I'll just stop here.
Well, in fact many chemicals exist solely because someone created them artificially. There are many modern chemicals that do not occur in nature. For that sort of substance, the simple existence of the substance itself is often a great contribution to technological advancement.
There are four types of patentable subject matter under 35 U.S.C. section 101: processes, machines, manufactures, and compositions of matter.
If flash mobs have the power to overcome government security at any installation, we could be headed for anarchy.
Consider. There are a lot of radical groups out there. Even some extremely radical versions of groups whose ideology I would agree with if more temperate.
Imagine that one of these groups, PETA for example, staged a sit in in the White House, because they were able to corral a couple thousand people from the entire U.S. within 10 minutes at the White House gates, and simply push through. If they were fanatical enough, and the guards were cautious enough, not many would likely get hurt.
We would have a national crisis because a minor faction was able to organize a pinpoint strike at a weak point of our government's infrastructure. We have to at least consider that this is a threat to stability, don't we???
Actually, the problem is individual freedom and representative government.
The U.S. federal government can't force everyone to curtail their spending in order to solve the world hunger problem.
Neither can they put too much tax money towards it where the citizens have their own agenda.
20 years from now, when all current patents have expired, the third world will still be dying.
Well, I thought you were referring to compositions of music rather than the process of actually making it.
If that's what you're talking about, then sure, I do think innovative processes for playing instruments should be patentable.
This is similar to patents on sports techniques, such as various ways of hitting a golf ball...
Actually, I did read it, I just don't have time to write a proper reply.
;)
I still disagree though.
You say:
None of this supports the proposition that no software is innovative.
All you're saying is (in a conclusory way) that some software is not innovative, and therefore you think no software is innovative. That's not an argument.
Furthermore, it's OBVIOUS that all other technologies are based on hundreds or thousands of years of prior art. The patent system REQUIRES patentable matter to be novel and nonobvious. This means that if ANYONE can show that the prior art teaches what's in the patent, it's invalid.
If you think that it's too expensive for people to find prior art, or bring it to the patent office, that's one thing. But nothing you say here is convincing.
This is COMPLETE BS.
Music is not functional. It does not do work. You do not achieve particular results with one song that are less efficient with another song.
Yes, we certainly do need to address the question. We need to make sure software is patentable everywhere it matters. ;)
I agree. It's not effective, but it's what they are trying to do.
I refuse to believe, as the parent averred, that they are simply trying to create more bases upon which they can charge people for their jollies...
My take is that, however imperfect their solution is at this point, they are going in the right direction and trying to do the right thing by focusing on identification. But this is only a first step at any rate... Down the road we'll look back and see this as the first step towards a full legal authentication system.
No, you numbnut, the idea is to require you to have a friggin license plate, so when you break the law like in a hit and run, they can actually find you.
How incredibly unjust!
(By the way, there are actually copyright laws, and they are actually there for a reason or two.)
(First, please note: I am not a lawyer, only a law student. Don't rely on this as legal advice!)
;)
That's not true. The finder has the basic common law title to the item as against all but the original owner. Title to property is relative. The finder has "worthier title" to the property than anyone but the original owner.
Now everything I'm about to say is based on the presumption that this is "lost property" rather than "abandoned property"...
This seems to be valid law in NY. See Hume v. Elder, 178 A.D. 652, 165 N.Y.S. 849 (2d Dep't 1917); Forman v. Rosetti, 38 Misc. 2d 317, 238 N.Y.S.2d 328 (City Civ. Ct. 1963); Garramone v. Simmons, 177 Misc. 330, 30 N.Y.S.2d 465 (Sup 1941)...
But at the moment he finds it, he only has an expectation of that title in NY, and he has to wait for the statutory time period to elapse, and the owner not to claim the item, for title to vest. See Bisignano v. Harrison Central School Dist., 113 F. Supp. 2d 591, 147 Ed. Law Rep. 529 (S.D.N.Y. 2000).
He gives it to the police, they keep it for a period, and when the owner doesn't claim it, and the time period expires, he can demand it back and his title vests.
The periods are described in N.Y. Pers. Prop. Law 253(7), and are basically...
* three months, if the property has a value of less than $ 100.00
* six months, if the property has a value between $ 100.00 and $ 499.99
* one year, if the property has a value between $ 500.00 and $ 4999.99
* three years, if the property has a value of $ 5000.00 or more
But there's more! This guy may be guilty of a misdemeanor:
N.Y. Pers. Prop. Law 252(1) says he has to turn it in to the cops within 10 days. 252(3) says anyone convicted of noncompliance is guilty of a misdemeanor punishable by up to a $100 fine or 6 months in jail or both.
He also may be guilty of larceny:
N.Y. Penal Law 155.05(2)(b) says this could be larceny if he doesn't take reasonable measures to return the property.
Just goes to show, use your instincts about what's right, and you'll probably be much better off...
"i most certainly have the right to screen it . . ."
Actually, you don't. I understand your badly wanting to, but you don't have any right to.
It's a bargain between you and the producers, not optional charity from you to the producers.
Ummm. Isn't the price ALWAYS the reason something is pirated??? You make it sound like pirates are all making some high-minded philosophical decisions about it, which is complete BS. They're just rationalizations. But, if you still think software is actually overpriced, think about this: As more people share a piece of software, it forces the price to go up in order for the creator to cover his costs. Basically, if one person buys the app and gives it to 100 people, the author has to charge 100 times as much for one copy to cover his costs. Most creators won't be able to charge this much because people aren't cooperating with those 100 friends and going in on the deal together most of the time (although that happens too, rarely). But at any rate, the phenomenon forces prices up until the creator can't afford to cover his development costs, and gives it up. Since this is the result, it's not smart to pirate just because you think the app is too expensive -- if it's pirated enough, it will just get more expensive until it's eventually abandoned.
Everyone is assuming that the author of the software doesn't warn the user about this. I guess this guy did not warn the user, but if the software informed the user what it did, and required the user to type "yes, I get it, and I still want to install you", this should be fine...
I agree.
Not to mention, RMS suggests that one must constantly search one's software for potential infringements. Does anyone really think this is how reality works??
You write your software, and if you find out something significant you're using is probably patented, you check it out and avoid it. If you don't know of anything, you just do it. When someone notifies you of infringement, you check it out, and decide whether you want to avoid it, go to court, or license the patent.
There are so many inaccurate assumptions about patents here. How many of you know that almost all patents are rejected the first time? How many of you know that patents require periodic maintenance fees to keep, and something like 70% of patent holders let their patents expire before the full term is up? And how many know that most patent firms provide pro bono services to inventors, authors, and composers on a regular basis?
The ONLY argument against software patents that I consider serious is the economic argument that individual inventors or writers of free software don't have the funds to patent their works, or don't have the funds to fight patent infringement suits. Basically, that patents and patent litigation are too expensive to allow free software to properly flourish. If this is true, it's a problem, but I see many arguments against it, and disallowing software patents is not a solution to me...
First, consider the litigation issue. I would argue that first, if an individual coder or a free software project is threatened with litigation, he or it can simply avoid the patent. Yes. Do it _another_way_. It may not be the best way, but then again, he didn't think of it first, did he?? He can go ahead and use it when the patent expires.
And don't whine that it's impossible to work around a patent like that. If you were really sharp, you'd develop an improvement on the patent in question, file a provisional application on it, and go cross-license with the original patent holder. But otherwise, just do it the old way. You can always use the prior art. If you can't achieve what you want with the prior art, well, there must be quite a bit of value in the patent, mustn't there?
You see, patents are about making money from an invention. Most coders simply don't care about money, so they get shafted day after day, year after year. How many of you can honestly tell me that you don't know of a friend or colleague who has been taken advantage of by his company? Coders, hackers, et al., don't care about money. But they still need it. Patents are a way that they can actually interest the people who do care about money in their inventions, and avoid being shafted.
I see much of the opposition to software patents in this community as a direct result of hackers' innate disinterest in and distrust of money, and their innate tendency to get themselves shafted.
My other point, about the cost of getting patents, needs to be addressed, but there has to be some cost, and a lot of work goes into a patent. An inventor has to make a decision and take a risk. It's the same as any other speculative endeavor. Real estate, business, it's all the same. The PTO should work to reduce fees and streamline the process (and they are), and lots of organizations are pushing the PTO to improve. Hackers like to do their own thing and avoid thinking about practicalities, but there are a lot of practicalities when it comes to an agency like the PTO, and things don't move quickly. Things have gotten a lot better and they'll get better yet. That's how it works, and just because it's slow doesn't mean it should be scrapped. For those of you looking for work, think about becoming an examiner and helping them with a thankless job.
In the end, you have to think about it with a larger perspective. How many things are going to be done with software that used to be done with machines? Should an invention that would have been made of wood and iron in Da Vinci's day be unpatentable
I just want to make the point to all you non-lawyers out there that property is not just physical objects.
;)
Property is anything in which you have "property rights". Property rights are a bundle of rights, different for different types of property, that give you some level of legal control over the object of those rights.
Probably most of the property in our society is not actually in physical objects. Consider money. Consider easements, equitable servitudes, usufructs, licenses, etc...
To say that intellectual property is not property is actually blatantly false when you understand what property actually is. To say that inventions shouldn't be the object of property rights, well, now you're at least being honest. (Although, I agree with the previous poster about creative incentives)...