I don't see a problem with the people who make around $70k and up holding 85% of the country's wealth.
But the top 1% hold fully 34.6% of the wealth. The curve gets very, very steep above the top 5%. That's where increased taxation needs to be aimed.
The demarcation point to *be* in those groups is low, and attainable
Actually, class mobility in the United States is terrible. "By international standards, the United States has an unusually low level of intergenerational mobility: our parents’ income is highly predictive of our incomes as adults. Intergenerational mobility in the United States is lower than in France, Germany, Sweden, Canada, Finland, Norway and Denmark." Source. European social democracies are better at the American dream than America is.
And yes, many people may be able to achieve that level of income, but these days that often requires taking on significant educational debt. Their real income is much lower than the raw figures would suggest. Furthermore, inflation-adjusted income growth in the middle class has been virtually flat for years, whereas the rich have seen their income growth vastly outpace inflation. Source.
Should we propose that we take the wealth held by people making $70k a year and up because those people hold 85% of it?
You'll note that I said "If anything [the rich] should be taxed more at the high end." There should be new tax brackets at very high end (e.g. $500,000 or $1 million). This would be consistent with the post WWII income tax, which had a high marginal rate of ~90%. Source. That didn't seem to hurt the massive post WWII economic boom.
What would be the point of doing the work to get above that level?
Do you understand marginal taxation? It's always better to make more money.
So if you added corporate taxes to the top 5% then you are talking 71.7% of revenues in 2009. It would 67.7% of revenues in 2010. So it would appear to me that the "rich" in this country are paying significantly more than half of the cash needed/used for the government to run.
Okay, but the rich happen to control far more than half of the country's wealth and earn more than half of the income in the country. Specifically, in 2006, the top 20% of earners made 61.4% of the income, and in 2007 the top 20% controlled 85.1% of the wealth. Source. So, the tax burden placed on the rich is completely fair. If anything they should be taxed more at the high end.
Granted this is for assets above 1 million+, but in this day and age there are a LOT of family's which have these kind of assets, and it would cut them in half after losing a family member.
That's not how inheritance tax works! It's progressive, just like income tax. From 1977-2007 the lowest rate was 18%. The brackets for highest rates were several times the low-end cutoff. So for example in 2002, the last year the highest rate was 50%, the highest bracket was $3 million! Very, very few individuals have $3 million in assets that pass through probate. People who are that wealthy use trusts, inter vivos transfers, and various other mechanisms to avoid inheritance tax.
Inheritance taxes are not a new or weird idea. Inheritance taxes in the United States date back to the Civil War era, and historically the highest rate has often been higher than 50%. From 1934 - 2001 the highest rate varied from 55% to 77%. On the other hand, the lowest rate has always been much lower than 50%. From 1916 - 2007 the lowest rate varied from 1% to 18%, with 18% being the rate from 1977-2007.
Finally, you should know that there are a large number of deductions to the estate: debts, administration fees, funeral costs, state inheritance taxes, charitable bequests, and (most importantly) all bequests to a spouse. So if you're survived by a spouse and give most or all of the estate to the spouse, then tada! no inheritance tax.
Weather you intended to violate copyright or not factors in as well (though it has no bearing on guilt or innocence).
Since you're talking about civil copyright infringement, "guilt or innocence" doesn't enter into it. The question is whether the defendant is liable. The "intent" you speak of is relevant when considering a claim of willful copyright infringement, but the infringement need not actually be intentional. Recklessness is sufficient in most jurisdictions, though a minority of jurisdictions require actual knowledge of infringement. See, for example, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257 (2d Cir. 2005).
All that is left available to you are punitive damages
No, actually, what's left are the plaintiff's actual damages and the defendant's profits attributable to the infringement. The punitive damages in a copyright case are the enhanced damages available in cases of willful infringement, but that enhancement only applies to statutory damages, not actual damages.
This is really pretty pathetic. Even if 1,000 files were infringed on, the absolute maximum Oracle can get for all cases involving Android is $150 million.
Actually, in this case it's entirely possible that the actual damages are much greater than the statutory damages. If the infringing files were fundamental to Android, then a large part of Google's profits from Android could be attributed to the infringing files, and Oracle could claim those profits. That could be quite a large sum.
But apart from that there is the threat of injunctive relief, perhaps a court order to remove the offending code. It might also require Google to stop distributing old versions of Android that contain the offending code. That's powerful leverage that Oracle could use to extract a significant licensing fee from Google.
I'm an attorney, and I'm registered to practice before the Patent and Trademark Office.
When was the last time anyone got penalized for patenting something frivolous?
It happens pretty frequently, actually. Patent attorneys and agents carry malpractice insurance for a reason. It typically costs thousands of dollars per year, and that's if you haven't been sued before.
There are no consequences to either the patent office, the patent applicant or the patent attorney for deliberately filling for something they all know is not patentable.
Demonstrably false. Inequitable conduct is a big issue. Many patents are rendered unenforceable every year because of it, and the responsible attorneys often get sued for malpractice as a result.
And if later, after costing a lot of people a lot of money the courts say it should not have been granted. There is no fine or fee or liability for it.
Also demonstrably false. A court may award attorney's fees and costs to a defendant in such a case. And again, malpractice suits will fly.
Its far more expensive to defend against a patent that is later ruled to be invalid that it is to get one.
But it still costs money up front to get it, and patent litigation is expensive for the plaintiff, too. Your statement says nothing about the economic inefficiency of the OP's alleged 'strategy' of filing numerous patents on non-functional inventions as a smokescreen.
The number of rejections is also at a record level. The Office is simply operating more efficiently after a couple of years of mismanagement. The rate of allowance is still somewhat low, historically-speaking.
He had to warn us though because companies will file multiple patents that vary slightly, but in the end don't work. They are there to hide the actual patent.
Alas your professor must not know much about how patents work. There are several problems with this theory. First, filing multiple applications on slight variations is a good way to end up with an obviousness-type double patenting rejection. Basically, non-identical applications must also be 'patentably distinct.'
Second, the inventors and the patent agents or attorneys are all under a legal obligation to "disclose information which is material to patentability." Lack of utility (i.e. the invention does actually work as claimed) is material to patentability and so must be disclosed. An attorney or agent that knowingly misrepresents a non-functional invention as functional is in jeopardy of losing his or her registration to practice before the PTO.
Third, inventors must also "declare that all statements made herein of my own knowledge are true and that all statements made on information and belief are believed to be true; and further that these statements were made with the knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001 and that such willful false statements may jeopardize the validity of the application or any patent issued thereon." An application must make some claim to utility (and therefore functionality), so knowingly misrepresenting a non-functional invention as functional is illegal.
Fourth, it's expensive as heck. Even if you only file in the US the filing fees, attorneys fees, and maintenance fees for a patent are in the tens of thousands of dollars. If you go international you can easily crack a few hundred thousand. If you file in every major jurisdiction you can easily get into the millions. That's per patent. The strategy you're suggesting is financially infeasible for such a minimal payoff, especially given the risks outlined above.
It is highly unlikely that the programmers or manufacturer of the original device would be liable. There are two main reasons. First, the wrongdoing of the hackers is almost certainly a superseding cause of the damage, which negates liability for negligence on the part of the programmers or manufacturer. Second, the product was not defective when it was sold and it was modified from its original condition, both of which negate products liability.
The law is stupid sometimes, but it is not that stupid.
Nope, they were removing advertised functionality, and EULAs are not legally binding.
Removing advertised functionality does not give someone carte blanche to restore it.
And EULAs have been held to be legally binding in many cases. See, for example, ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996); Moore v. Microsoft Corp., 293 A.D.2d 587 (2d Dep't 2002); M.A. Mortenson Co. v. Timberline Software Corp., 970 P.2d 803 (Wash. Ct. App. 1999); Hotmail Corp. v. Van$ Money Pie Inc., 47 U.S.P.Q.2d 1020 (N.D.Cal. 1998); America Online, Inc. v. Booker, 781 So.2d 423 (Fla.Dist.Ct. App.2001).
the "has only limited commercially significant purpose or use other than to circumvent protection" requirement probably makes this OK
Actually, it doesn't. That it can be used to install Linux doesn't suddenly make it okay. Sony removed the ability to install Linux in an authorized fashion. Thus, even using this exploit to install Linux is a circumvention.
Plus, even if it's a technical violation, he can always fall back on fair use:
Fair use is a defense to copyright infringement, not to circumvention. The two are distinct.
Also, 'technical violation' is meaningless. Copyright infringement and circumvention are both strict liability torts (although willful infringement carries enhanced penalties). A violation is a violation, regardless of the defendant's intent or state of mind.
The statute defines it thus: "a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."
In this case, in the ordinary course of operation of a PS3, you need the decryption keys supplied with Sony's authorization in order to access the work (e.g. games, the PlayStation OS, etc).
It can't be the case that a control measure becomes ineffective when it's broken. If that were the case it would be impossible to circumvent such a control measure, since the very act of circumvention would render the measure ineffective. An important rule of interpreting statutes is that the interpretation can't lead to an absurd or self-defeating result, so a broader interpretation is required.
Sony could actually hurt their own case by allowing a judge to rule against them.
That's very unlikely. For better or worse, this is precisely the kind of thing the anti-circumvention parts of the DMCA were designed to prevent / punish.
The Axon Ax 100 that he's using lists for ~$650. The pickup he's using (Roland Gk-3a) is another $200. Pretty neat trick if you've already got the equipment, but for the same price you could buy the Rock Band 3 guitar controller and a semi-decent regular guitar.
The rich, say the top 1% of the pop. pay approx 37 % of all the income tax in the country. The top 20% pay about 85% of the income taxes. The bottom 50% of the pop. pay no income tax.
The rich earn most of the money, so of course they pay most of the income tax. And the bottom 47% (not 50) still pay Medicare and Social Security payroll taxes, certain state and local income taxes, sales tax, and excise taxes on things like gasoline and alcohol.
The utility of wealth is not linear. Progressive taxation makes economic and psychological sense, and it was supported by, among others, Benjamin Franklin."the most equal of all Taxes...is generally in proportion to Mens Wealth." (Benjamin Franklin to Thomas Ruston, October 9, 1780).
Universities, colleges and research labs still produce things. IV does not
You are aware that the patents at issue in these suits were mostly acquired from companies that produce products, right? That these are mostly not IV's own patents?
No original research and development goes on there - they are lawyers, not creators.
This is plainly false. IV employs quite a few creative people. Just check their job listings. I see positions for scientific modelers, computational scientists, fuel performance analysts, fuel mechanical design engineers, and other inventive workers.
the key test, in my mind, should be active usage of the patent.
This is not an original idea. Many countries have 'working requirements' (India and Turkey are two examples). In practice they do not work because there are many, many reasons why a patented invention may not be on the market. It may need regulatory clearance (e.g. a drug), it may depend on other technologies not yet fully developed or commercially practical, it may be too expensive, it may require infrastructure that isn't in place, the company may be waiting on venture capital or waiting out a recession, etc, etc, etc.
If you can come up with an effective, practical working requirement scheme, there's a publishable law review article in it for you as well as some members of Congress that would probably like to hear from you.
The difference is that a high rate of IBM's patents are granted.
What evidence do you have that IV's patents are also not granted at a high rate? It takes years for a typical application to go through the examination process even without any appeals. It's not surprising that IV has only had a few patents granted so far. IBM's 4000+ patents granted in 2008 were mostly filed years ago.
This is proper use of the patent system because IBM then makes those products.
What evidence do you have that all, most, or even many of IBM's patents cover products that it produces? Many companies acquire patents that they do not practice. Sometimes they are kept defensively, sometimes they are sold to other companies (as is the case with many of IV's patents).
And of course IBM produces very little. It's mostly a services company, and what products it produces are actually manufactured by other companies under patent license agreements.
Thousands of patents that evidently have little business being patents
You have reviewed all of IV's patent applications and independently determined their validity and economic value? You could make a fortune as an analyst. Patent valuation is notoriously difficult.
But their legion of lawyers persists pushing these patents and revisioning them.
What evidence do you have that IV's patent prosecution strategy is substantially different from IBM or any other company's?
It's much, much harder than people on Slashdot seem to think to meaningfully distinguish between companies like IV and universities, publicly funded research labs, corporate spinoffs, standards organizations, and other business models that are more palatable to the community here.
Man, I hate that a company can exist just to own patents and sue people.
You do realize that category includes a large number of universities and colleges, right? And publicly funded research labs?
What about companies that received a patent but decided not to pursue the technology themselves? Do they just have to eat the cost of the R&D? Or investors in a company that went bankrupt? They can't recoup any of their investment through the sale of the patent portfolio? Those scenarios are two major sources of IV's patent portfolio, including many of the patents involved in these lawsuits.
That policy would put an enormous chill on research & development investment.
Since 2003 they have been gumming up the USPTO as well. Note that they've filed thousands of patent applications.
And it has paid application fees, search fees, and examination fees on every one of them. The Patent Office is entirely supported by fees. IV isn't "gumming up the Patent Office." In a sense that's not even possible. As long as a decent number of the applications issue as patents and IV pays maintenance fees on them, then they're fully paying their own way.
And it's still small potatoes compared to the top ten patent filers, particularly IBM, which received 4,186 patents in 2008 alone, suggesting that it files about that many each year.
(It should be noted that this is in no way a new idea, and has existed even in ancient cultures where the murder or beating of a pregnant woman would be dealt with more severely than with one who was not-pregnant. In "ye olden days" when having a baby was even more dangerous than it is today, and the infant death rate was extremely high, the idea of "potential life" was very important to early peoples.)
Completely false. The Old Testament makes it clear that injuring a pregnant woman and causing a miscarriage is treated as a relatively minor property crime and not at all like murder (Exodus 21:22). Historically (and today) Jews believed that life began after birth when the child emerged from the mother and took its first breath (source). Furthermore, abortion was practiced the ancient Greeks and Romans, who had no problem with it (and yet Christ couldn't be bothered to say anything about it). Even medieval Christians didn't believe life began until the fetus moved in the womb ('the quickening').
Anthropologists will tell you that, in general, the higher the infant death rate, the laxer the view of the moral status of fetuses and infant children. In some cultures a child isn't a person until it's about two years old; it isn't even given a name. This is essentially a psychological and economic coping mechanism. In the developed world we have the 'luxury' of caring about every unique little snowflake.
The view of fetal life as inherently valuable is very much a modern one. For example, when Roe v. Wade first legalized abortion in the US, most evangelicals said nothing and many actually applauded it. Even before the ruling the Southern Baptist Convention officially resolved that "we call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother." Those criteria are pretty broad, and it's a call for active lobbying for such legislation.
Modern anti-choice views are a product of about 40 years of political polarization caused by conservatives using it as a wedge issue.
(Note: I am an IP attorney, but I am not your IP attorney. This is not legal advice.)
You should consult a competent IP attorney in your jurisdiction. Many attorneys offer free consultations, sliding fee scales, fixed-fee arrangements, and many also do outright pro bono work. Many attorneys, especially IP attorneys, are often nerds themselves and are likely to be sympathetic and willing to work with you to develop a custom fee arrangement. In this economy a lot of attorneys have free time and are going to be more willing to work for cheap or free in the hopes of developing better paying business in the future. Don't be afraid to ask directly about costs.
All that said, you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court. You really should consult an attorney.
how long do you think some do-gooder who's Doing of The Good involved the typical comic book level of property damage would stay out of court (and bankruptcy) in Real Life?
This is an issue we plan to address in a future post or series of posts. The short answer is that it's probably not for nothing that superheroes maintain a secret identity.
In a world where superpowers, immortality and such exists, and are known in the open, laws should take them into account. Laws are meant to adapt to a changing world, what if we did that in a world where noone could go faster than 40km/h, and suddently someone with a modern car jump in? Our world hadnt laws regarding fast cars before, but somehow the legal system acknowledged that something changed and added laws for them.
It's true that laws normally adapt to changing circumstances, but in many comic books the world is presented as essentially the same as our own, except with superheroes and supervillains. Legal institutions and actors like courts, the police, judges, lawyers, juries, mayors, governors, legislatures, etc still exist and seem to function like they do in the real world. Occasionally a point is made about a new or different law, such as a Mutant Registration Act or the Keene Act. Our conclusion (and the premise of the blog) is that in the comic book world the legal system is basically the same as the real world, so there must usually be some way to reconcile the law of the real world with the facts of the comic book world. So for example we can find a way to make the Keene Act constitutional.
Sometimes it is not possible to do this, though. For example, if we conclude that Batman would be a state actor in the real world, which seems likely to me, then that would lead to contradictions in the comic book world. Therefore, Batman is not a state actor in the comic book world, and the law must be different in the comic book world. Then we can think about the most likely tweak to the law in the comic book world necessary to accommodate the facts.
Basically we first try to explain how the facts and the law agree. Failing that we figure out how to adjust the law to fit the facts. Failing that we say, eh, it's a comic book.
Hi, I'm one of the two co-authors, although I did not write that particular article. A comment on the blog raised the issue of incorporation as a solution, and my co-author addressed it in a follow-up comment. The short version is that easily-created corporations did not exist until the mid-1800s, so it would only be a solution for immortals that aren't actually very old yet. Before that corporations could only be created by royal charter or a private act of the legislature (depending on the country), which are not very compatible with maintaining anonymity.
If Microsoft is successful here, then it will be easier to invalidate questionable patents, especially when using prior art or other evidence not considered by the Patent Office. This is significant because the Patent Office often does not have the time or resources to search all possible prior art, especially art that has not been neatly cataloged and indexed for search (e.g. that ancient piece of software you remember using in the 80s that did exactly what the patent claims but isn't sold anymore).
An important feature of this case is that even if Microsoft wins at the Supreme Court level, the patent may still be found valid and infringed. If Microsoft wins and the case goes back down to the trial court, it's entirely possible that the judge will say "nope, the evidence still doesn't meet the new lower standard; pay up."
Slashdot Mirror
I don't see a problem with the people who make around $70k and up holding 85% of the country's wealth.
But the top 1% hold fully 34.6% of the wealth. The curve gets very, very steep above the top 5%. That's where increased taxation needs to be aimed.
The demarcation point to *be* in those groups is low, and attainable
Actually, class mobility in the United States is terrible. "By international standards, the United States has an unusually low level of intergenerational mobility: our parents’ income is highly predictive of our incomes as adults. Intergenerational mobility in the United States is lower than in France, Germany, Sweden, Canada, Finland, Norway and Denmark." Source. European social democracies are better at the American dream than America is.
And yes, many people may be able to achieve that level of income, but these days that often requires taking on significant educational debt. Their real income is much lower than the raw figures would suggest. Furthermore, inflation-adjusted income growth in the middle class has been virtually flat for years, whereas the rich have seen their income growth vastly outpace inflation. Source.
Should we propose that we take the wealth held by people making $70k a year and up because those people hold 85% of it?
You'll note that I said "If anything [the rich] should be taxed more at the high end." There should be new tax brackets at very high end (e.g. $500,000 or $1 million). This would be consistent with the post WWII income tax, which had a high marginal rate of ~90%. Source. That didn't seem to hurt the massive post WWII economic boom.
What would be the point of doing the work to get above that level?
Do you understand marginal taxation? It's always better to make more money.
So if you added corporate taxes to the top 5% then you are talking 71.7% of revenues in 2009. It would 67.7% of revenues in 2010. So it would appear to me that the "rich" in this country are paying significantly more than half of the cash needed/used for the government to run.
Okay, but the rich happen to control far more than half of the country's wealth and earn more than half of the income in the country. Specifically, in 2006, the top 20% of earners made 61.4% of the income, and in 2007 the top 20% controlled 85.1% of the wealth. Source. So, the tax burden placed on the rich is completely fair. If anything they should be taxed more at the high end.
Granted this is for assets above 1 million+, but in this day and age there are a LOT of family's which have these kind of assets, and it would cut them in half after losing a family member.
That's not how inheritance tax works! It's progressive, just like income tax. From 1977-2007 the lowest rate was 18%. The brackets for highest rates were several times the low-end cutoff. So for example in 2002, the last year the highest rate was 50%, the highest bracket was $3 million! Very, very few individuals have $3 million in assets that pass through probate. People who are that wealthy use trusts, inter vivos transfers, and various other mechanisms to avoid inheritance tax.
Inheritance taxes are not a new or weird idea. Inheritance taxes in the United States date back to the Civil War era, and historically the highest rate has often been higher than 50%. From 1934 - 2001 the highest rate varied from 55% to 77%. On the other hand, the lowest rate has always been much lower than 50%. From 1916 - 2007 the lowest rate varied from 1% to 18%, with 18% being the rate from 1977-2007.
Finally, you should know that there are a large number of deductions to the estate: debts, administration fees, funeral costs, state inheritance taxes, charitable bequests, and (most importantly) all bequests to a spouse. So if you're survived by a spouse and give most or all of the estate to the spouse, then tada! no inheritance tax.
There is a lot wrong here.
Weather you intended to violate copyright or not factors in as well (though it has no bearing on guilt or innocence).
Since you're talking about civil copyright infringement, "guilt or innocence" doesn't enter into it. The question is whether the defendant is liable. The "intent" you speak of is relevant when considering a claim of willful copyright infringement, but the infringement need not actually be intentional. Recklessness is sufficient in most jurisdictions, though a minority of jurisdictions require actual knowledge of infringement. See, for example, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257 (2d Cir. 2005).
All that is left available to you are punitive damages
No, actually, what's left are the plaintiff's actual damages and the defendant's profits attributable to the infringement. The punitive damages in a copyright case are the enhanced damages available in cases of willful infringement, but that enhancement only applies to statutory damages, not actual damages.
This is really pretty pathetic. Even if 1,000 files were infringed on, the absolute maximum Oracle can get for all cases involving Android is $150 million.
Actually, in this case it's entirely possible that the actual damages are much greater than the statutory damages. If the infringing files were fundamental to Android, then a large part of Google's profits from Android could be attributed to the infringing files, and Oracle could claim those profits. That could be quite a large sum.
But apart from that there is the threat of injunctive relief, perhaps a court order to remove the offending code. It might also require Google to stop distributing old versions of Android that contain the offending code. That's powerful leverage that Oracle could use to extract a significant licensing fee from Google.
What are you smoking.
I'm an attorney, and I'm registered to practice before the Patent and Trademark Office.
When was the last time anyone got penalized for patenting something frivolous?
It happens pretty frequently, actually. Patent attorneys and agents carry malpractice insurance for a reason. It typically costs thousands of dollars per year, and that's if you haven't been sued before.
There are no consequences to either the patent office, the patent applicant or the patent attorney for deliberately filling for something they all know is not patentable.
Demonstrably false. Inequitable conduct is a big issue. Many patents are rendered unenforceable every year because of it, and the responsible attorneys often get sued for malpractice as a result.
And if later, after costing a lot of people a lot of money the courts say it should not have been granted. There is no fine or fee or liability for it.
Also demonstrably false. A court may award attorney's fees and costs to a defendant in such a case. And again, malpractice suits will fly.
Its far more expensive to defend against a patent that is later ruled to be invalid that it is to get one.
But it still costs money up front to get it, and patent litigation is expensive for the plaintiff, too. Your statement says nothing about the economic inefficiency of the OP's alleged 'strategy' of filing numerous patents on non-functional inventions as a smokescreen.
The number of rejections is also at a record level. The Office is simply operating more efficiently after a couple of years of mismanagement. The rate of allowance is still somewhat low, historically-speaking.
He had to warn us though because companies will file multiple patents that vary slightly, but in the end don't work. They are there to hide the actual patent.
Alas your professor must not know much about how patents work. There are several problems with this theory. First, filing multiple applications on slight variations is a good way to end up with an obviousness-type double patenting rejection. Basically, non-identical applications must also be 'patentably distinct.'
Second, the inventors and the patent agents or attorneys are all under a legal obligation to "disclose information which is material to patentability." Lack of utility (i.e. the invention does actually work as claimed) is material to patentability and so must be disclosed. An attorney or agent that knowingly misrepresents a non-functional invention as functional is in jeopardy of losing his or her registration to practice before the PTO.
Third, inventors must also "declare that all statements made herein of my own knowledge are true and that all statements made on information and belief are believed to be true; and further that these statements were made with the knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001 and that such willful false statements may jeopardize the validity of the application or any patent issued thereon." An application must make some claim to utility (and therefore functionality), so knowingly misrepresenting a non-functional invention as functional is illegal.
Fourth, it's expensive as heck. Even if you only file in the US the filing fees, attorneys fees, and maintenance fees for a patent are in the tens of thousands of dollars. If you go international you can easily crack a few hundred thousand. If you file in every major jurisdiction you can easily get into the millions. That's per patent. The strategy you're suggesting is financially infeasible for such a minimal payoff, especially given the risks outlined above.
It is highly unlikely that the programmers or manufacturer of the original device would be liable. There are two main reasons. First, the wrongdoing of the hackers is almost certainly a superseding cause of the damage, which negates liability for negligence on the part of the programmers or manufacturer. Second, the product was not defective when it was sold and it was modified from its original condition, both of which negate products liability.
The law is stupid sometimes, but it is not that stupid.
Nope, they were removing advertised functionality, and EULAs are not legally binding.
Removing advertised functionality does not give someone carte blanche to restore it.
And EULAs have been held to be legally binding in many cases. See, for example, ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996); Moore v. Microsoft Corp., 293 A.D.2d 587 (2d Dep't 2002); M.A. Mortenson Co. v. Timberline Software Corp., 970 P.2d 803 (Wash. Ct. App. 1999); Hotmail Corp. v. Van$ Money Pie Inc., 47 U.S.P.Q.2d 1020 (N.D.Cal. 1998); America Online, Inc. v. Booker, 781 So.2d 423 (Fla.Dist.Ct. App.2001).
the "has only limited commercially significant purpose or use other than to circumvent protection" requirement probably makes this OK
Actually, it doesn't. That it can be used to install Linux doesn't suddenly make it okay. Sony removed the ability to install Linux in an authorized fashion. Thus, even using this exploit to install Linux is a circumvention.
Plus, even if it's a technical violation, he can always fall back on fair use:
Fair use is a defense to copyright infringement, not to circumvention. The two are distinct.
Also, 'technical violation' is meaningless. Copyright infringement and circumvention are both strict liability torts (although willful infringement carries enhanced penalties). A violation is a violation, regardless of the defendant's intent or state of mind.
It isn't immaterial if this is seen as comparable to the DCMA exception granted for jailbreaking your phones.
The exceptions promulgated by the Librarian of Congress are very narrowly written. The courts are not going to create a new exception by analogy.
And all GeoHot did was publish the exploit.
That's quite likely sufficient under the DMCA.
The statute defines it thus: "a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."
In this case, in the ordinary course of operation of a PS3, you need the decryption keys supplied with Sony's authorization in order to access the work (e.g. games, the PlayStation OS, etc).
It can't be the case that a control measure becomes ineffective when it's broken. If that were the case it would be impossible to circumvent such a control measure, since the very act of circumvention would render the measure ineffective. An important rule of interpreting statutes is that the interpretation can't lead to an absurd or self-defeating result, so a broader interpretation is required.
He isn't pirating material, nor distributing pirated material.
And Sony knows that. That's not what the suit alleges.
GeoHot didn't hack the PS3 until Sony removed functionality.
That's immaterial.
And while you can argue circumventing copyright measures is illegal for any reason according to the DCMA, this isn't a criminal case
Circumvention in violation of the DMCA is also grounds for a civil suit, which is what this is.
and a federal judge has already opened the door saying jailbreaking an iPhone to get additional functionality (not piracy) is legal.
That wasn't a federal judge. It was the Librarian of Congress adding an exception to the DMCA.
Sony could actually hurt their own case by allowing a judge to rule against them.
That's very unlikely. For better or worse, this is precisely the kind of thing the anti-circumvention parts of the DMCA were designed to prevent / punish.
The Axon Ax 100 that he's using lists for ~$650. The pickup he's using (Roland Gk-3a) is another $200. Pretty neat trick if you've already got the equipment, but for the same price you could buy the Rock Band 3 guitar controller and a semi-decent regular guitar.
The rich, say the top 1% of the pop. pay approx 37 % of all the income tax in the country. The top 20% pay about 85% of the income taxes. The bottom 50% of the pop. pay no income tax.
The rich earn most of the money, so of course they pay most of the income tax. And the bottom 47% (not 50) still pay Medicare and Social Security payroll taxes, certain state and local income taxes, sales tax, and excise taxes on things like gasoline and alcohol.
The utility of wealth is not linear. Progressive taxation makes economic and psychological sense, and it was supported by, among others, Benjamin Franklin."the most equal of all Taxes...is generally in proportion to Mens Wealth." (Benjamin Franklin to Thomas Ruston, October 9, 1780).
Universities, colleges and research labs still produce things. IV does not
You are aware that the patents at issue in these suits were mostly acquired from companies that produce products, right? That these are mostly not IV's own patents?
No original research and development goes on there - they are lawyers, not creators.
This is plainly false. IV employs quite a few creative people. Just check their job listings. I see positions for scientific modelers, computational scientists, fuel performance analysts, fuel mechanical design engineers, and other inventive workers.
the key test, in my mind, should be active usage of the patent.
This is not an original idea. Many countries have 'working requirements' (India and Turkey are two examples). In practice they do not work because there are many, many reasons why a patented invention may not be on the market. It may need regulatory clearance (e.g. a drug), it may depend on other technologies not yet fully developed or commercially practical, it may be too expensive, it may require infrastructure that isn't in place, the company may be waiting on venture capital or waiting out a recession, etc, etc, etc.
If you can come up with an effective, practical working requirement scheme, there's a publishable law review article in it for you as well as some members of Congress that would probably like to hear from you.
The difference is that a high rate of IBM's patents are granted.
What evidence do you have that IV's patents are also not granted at a high rate? It takes years for a typical application to go through the examination process even without any appeals. It's not surprising that IV has only had a few patents granted so far. IBM's 4000+ patents granted in 2008 were mostly filed years ago.
This is proper use of the patent system because IBM then makes those products.
What evidence do you have that all, most, or even many of IBM's patents cover products that it produces? Many companies acquire patents that they do not practice. Sometimes they are kept defensively, sometimes they are sold to other companies (as is the case with many of IV's patents).
And of course IBM produces very little. It's mostly a services company, and what products it produces are actually manufactured by other companies under patent license agreements.
Thousands of patents that evidently have little business being patents
You have reviewed all of IV's patent applications and independently determined their validity and economic value? You could make a fortune as an analyst. Patent valuation is notoriously difficult.
But their legion of lawyers persists pushing these patents and revisioning them.
What evidence do you have that IV's patent prosecution strategy is substantially different from IBM or any other company's?
It's much, much harder than people on Slashdot seem to think to meaningfully distinguish between companies like IV and universities, publicly funded research labs, corporate spinoffs, standards organizations, and other business models that are more palatable to the community here.
Man, I hate that a company can exist just to own patents and sue people.
You do realize that category includes a large number of universities and colleges, right? And publicly funded research labs?
What about companies that received a patent but decided not to pursue the technology themselves? Do they just have to eat the cost of the R&D? Or investors in a company that went bankrupt? They can't recoup any of their investment through the sale of the patent portfolio? Those scenarios are two major sources of IV's patent portfolio, including many of the patents involved in these lawsuits.
That policy would put an enormous chill on research & development investment.
Since 2003 they have been gumming up the USPTO as well. Note that they've filed thousands of patent applications.
And it has paid application fees, search fees, and examination fees on every one of them. The Patent Office is entirely supported by fees. IV isn't "gumming up the Patent Office." In a sense that's not even possible. As long as a decent number of the applications issue as patents and IV pays maintenance fees on them, then they're fully paying their own way.
And it's still small potatoes compared to the top ten patent filers, particularly IBM, which received 4,186 patents in 2008 alone, suggesting that it files about that many each year.
(It should be noted that this is in no way a new idea, and has existed even in ancient cultures where the murder or beating of a pregnant woman would be dealt with more severely than with one who was not-pregnant. In "ye olden days" when having a baby was even more dangerous than it is today, and the infant death rate was extremely high, the idea of "potential life" was very important to early peoples.)
Completely false. The Old Testament makes it clear that injuring a pregnant woman and causing a miscarriage is treated as a relatively minor property crime and not at all like murder (Exodus 21:22). Historically (and today) Jews believed that life began after birth when the child emerged from the mother and took its first breath (source). Furthermore, abortion was practiced the ancient Greeks and Romans, who had no problem with it (and yet Christ couldn't be bothered to say anything about it). Even medieval Christians didn't believe life began until the fetus moved in the womb ('the quickening').
Anthropologists will tell you that, in general, the higher the infant death rate, the laxer the view of the moral status of fetuses and infant children. In some cultures a child isn't a person until it's about two years old; it isn't even given a name. This is essentially a psychological and economic coping mechanism. In the developed world we have the 'luxury' of caring about every unique little snowflake.
The view of fetal life as inherently valuable is very much a modern one. For example, when Roe v. Wade first legalized abortion in the US, most evangelicals said nothing and many actually applauded it. Even before the ruling the Southern Baptist Convention officially resolved that "we call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother." Those criteria are pretty broad, and it's a call for active lobbying for such legislation.
Modern anti-choice views are a product of about 40 years of political polarization caused by conservatives using it as a wedge issue.
(Note: I am an IP attorney, but I am not your IP attorney. This is not legal advice.)
You should consult a competent IP attorney in your jurisdiction. Many attorneys offer free consultations, sliding fee scales, fixed-fee arrangements, and many also do outright pro bono work. Many attorneys, especially IP attorneys, are often nerds themselves and are likely to be sympathetic and willing to work with you to develop a custom fee arrangement. In this economy a lot of attorneys have free time and are going to be more willing to work for cheap or free in the hopes of developing better paying business in the future. Don't be afraid to ask directly about costs.
All that said, you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court. You really should consult an attorney.
This is an issue we plan to address in a future post or series of posts. The short answer is that it's probably not for nothing that superheroes maintain a secret identity.
It's true that laws normally adapt to changing circumstances, but in many comic books the world is presented as essentially the same as our own, except with superheroes and supervillains. Legal institutions and actors like courts, the police, judges, lawyers, juries, mayors, governors, legislatures, etc still exist and seem to function like they do in the real world. Occasionally a point is made about a new or different law, such as a Mutant Registration Act or the Keene Act. Our conclusion (and the premise of the blog) is that in the comic book world the legal system is basically the same as the real world, so there must usually be some way to reconcile the law of the real world with the facts of the comic book world. So for example we can find a way to make the Keene Act constitutional.
Sometimes it is not possible to do this, though. For example, if we conclude that Batman would be a state actor in the real world, which seems likely to me, then that would lead to contradictions in the comic book world. Therefore, Batman is not a state actor in the comic book world, and the law must be different in the comic book world. Then we can think about the most likely tweak to the law in the comic book world necessary to accommodate the facts.
Basically we first try to explain how the facts and the law agree. Failing that we figure out how to adjust the law to fit the facts. Failing that we say, eh, it's a comic book.
Hi, I'm one of the two co-authors, although I did not write that particular article. A comment on the blog raised the issue of incorporation as a solution, and my co-author addressed it in a follow-up comment. The short version is that easily-created corporations did not exist until the mid-1800s, so it would only be a solution for immortals that aren't actually very old yet. Before that corporations could only be created by royal charter or a private act of the legislature (depending on the country), which are not very compatible with maintaining anonymity.
If Microsoft is successful here, then it will be easier to invalidate questionable patents, especially when using prior art or other evidence not considered by the Patent Office. This is significant because the Patent Office often does not have the time or resources to search all possible prior art, especially art that has not been neatly cataloged and indexed for search (e.g. that ancient piece of software you remember using in the 80s that did exactly what the patent claims but isn't sold anymore).
An important feature of this case is that even if Microsoft wins at the Supreme Court level, the patent may still be found valid and infringed. If Microsoft wins and the case goes back down to the trial court, it's entirely possible that the judge will say "nope, the evidence still doesn't meet the new lower standard; pay up."