Doesn't matter if it's a criminal case or civil. If a court orders you to turn over documents, then you turn over the documents. It's not Apple that's forcing Yahoo to turn them over, it's the court that granted Apple's motion to compel.
Wrong. Mac users appreciate the fanfare, and fanfare helps the bottom line. If you understood the law, you'd understand Apple's legal position. If you think an OEM shouldn't be able to throw its weight into its partner relationships, you don't understand how business works, either.
Apple developing x86 solutions? You, like so many other peecee Wintel leemurs, have such low expectations that you can't get your mind around what Apple's strategy is.
Patent Pending is a notice that a patent application is filed. It does not protect against the disclosure and on-sale rules that prevent the granting of an application after the subject matter has been put into production and commercial use.
ALSO, we're talking about non-U.S. patent law here, which may not support your glib and uninformed solution.
From the innovator(tm) that brought you Bob(tm) and The Paperclip(tm), it's another insidious intelligent agent -- The Agitator(tm). I can hear it now:
"I couldn't help but notice that you're an idiot, and that you type like my gramma."
"Hey pal, you wouldn't know a DLL if it bit you in the ass."
"Excuse me! I'm TRYING to innovate(tm) over here!"
"Why don't you ever talk to me anymore...I mean *really* talk to me?"
Bleh. This is just another crappy half-assed cock-eyed notion from that leemer Horvitz.
See http://research.microsoft.com/~horvitz/ if you want to email the guy who "invented" The Paperclip and Bob. If you email him, be sure to start with..."It looks like you're about to write a letter! Allow me to assist!"
That had to be cannonball. He was just running so fast it looked like a teleport. Obviously it wasn't nightcrawler, since he wasn't blue and since *I* didn't smell any brimstone!;)
Huh? you just pointed out the idiotic idiosynchrosies of ms products, and then argued that those same features are more efficient? you meant to say that fud and learned workarounds are keeping ms in the throne, didn't you. think about what a lemming mentality that is.
Thing is...if apple lawyers don't send these types of letters and threaten lawsuits, then trade secret protection of the design of their forthcoming machine is forfeited under the law. That's why they go through the motions. It's not really a big deal...since they DO own the damn proprietary and confidential design of thier as-yet-unrealeased product! 'Sup with all the hostility?
The doctrine of consideration long ago devolved to the point where a mere "pepper grain" is adequate consideration to support a contractual obligation. The idea is that the notion of "illusory" contracts (as well as other fundamental protections against unconscionable contracts) has displaced the need for consideration.
Hmmm...this is odd. There is a near identical post to this one by "Yu Suzuki" in the thread on PDF's. Am I just catching on to something, or is one of the greatest video game designers in history auto-posting this ramble. Can someone clue me in? I mean, Yu Suzuki's games rock, but he sounds a bit like Bob Dole when he posts. Perplexing...
First of all, I'm a lawyer and I know what all the terms you mentioned mean. The first thing I do when I arrive at my office is read/. As for your suggestion that we assemble a geek think tank, I think you're on the right track to the extent that there needs to be dialog between lawyers and pure technologists. However, writing the law is a bit like writing code -- but there are tolerances built into the law for prospective contingencies that cannot be captured in a purely logical model, and the courts should be thought of as debuggers. But don't forget that the law is fundamentally driven by, applied by, interpreted by, and written by human beings. There is a degree of imperfection built into the legal system. For instance, the law of equity allows a judge to exercise his or her personal discretion under circumstances where pure application of the law runs afoul of the particular facts. Discontinuities in the law are common and should be viewed as an acknowledgement that human systems will never execute with the same precision as a computer.
The only thing as rare as a lawyer that genuinely knows technology is a geek that can articulately express him or herself. I hear a lot of gripes from geeks about lawyers; so my gripe with geeks is that their credibility is almost always undemined by their total lack of persuasive skills. Are you surprised that geeks feel powerless when (as a group) geeks cannot even spell? Do you even understand, while you read this, why spelling and grammar and diction matter? My gripe with geeks is that they each walk around with a huge brain stuffed full of techno-esoterica, but have totally neglected the skill set that allows them to pass that information on to others. To retain control over your personal brain-trust is fundamentally arrogant, and on a societal level totally counter-productive.
Having revealed to you my rather bigoted opinion of geeks writ large, you should take a moment to reflect on the possibility that lawmakers are not a uniform class of morons, and that the concepts driving our system of jurisprudence are actually quite sound and have worked pretty well for many years without granting a veto-power to a star-chamber of engineers.
The recurring anti-lawyer theme on slashdot can be explained as follows: geeks are trained to apply elegant and efficient solutions to problems, while lawyers are trained to apply eloquent and articulate interpretations to problems; the animosity of geeks against lawyers (and vice versa) is driven by a misunderstanding of the roles each other plays.
My understanding was that the auction site need only take infringing material off the site for a short period of time (~20 days?) and then can repost unless the claimant has filed a lawsuit based on the infringement.
There's one theme in the pro-industry spin that bears some thoughtful consideration -- do we really want to lose the 'lottery' system of creative expression. While it may seem that the recording industry rewards mediocrity like the Backdoor Boyz, isn't there an argument that a thousand other truly talented artists are motivated to express themselves in the hopes of a multimillion dollar "carat" on a stick? I know some people feel that art and commerce are best kept apart. Are we "nuking" the 'jackpot' music industry? Is this really a good thing?
Wow. Ok, here we go again. A while back, you said: "That's ridiculous. If MS sells (or resells) their product they can't dictate that you agree to a license to use it. You already bought it. It may be difficult as hell to get it working without ever clicking on the licensing stuff, but it's unimaginable to me how MS could violate the first sale doctrine."
I have never argued that ideas can be owned. It doesn't take an hundred thousand dollar education in the law (although I do have one) to know that ideas cannot be owned. What I have said all along is that copyrights are not owned by purchasers of off the shelf software. According to your quote above, you think that by purchasing off the shelf software, you are entitled to the first sale doctrine.
" 106. Exclusive rights in copyrighted works 36 Subject to sections 107 through 121,the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1)to reproduce the copyrighted work in copies or phonorecords; (2)to prepare derivative works based upon the copyrighted work; (3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership,or by rental,lease,or lending;" ...etc.
And...the first sale doctrine appears in Section 109 of the Copyright Act...
" 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord (a)Notwithstanding the provisions of section 106(3),the owner of a particular copy or phonorecord lawfully made under this title,or any person authorized by such owner, is entitled,without the authority of the copyright owner,to sell or otherwise dispose of the possession of that copy or phonorecord."
Now...how does any EULA violate the first sale doctrine? The first sale doctrine says nothing about the copyright owner's ability to impose restrictions on the owner of the copy's ability to resell the copy. In fact, the first sale provision of the Copyright Act and the caselaw merely addresses situations where the copyright owner has been silent on the issue. Where a copyright owner imposes restrictions by means of a license agreement, there is no first sale right to resell. If you have any evidence to the contrary, I'd like to see it.
Ok, professor. Let's try some real authority for a change. From the Copyright Office website:
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
AND ALSO... Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
AND AGAIN FROM THE MOUTH OF THE COPYRIGHT OFFICE... The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
AND FINALLY, FROM SECTION 101 OF THE COPYRIGHT ACT: "Copyright owner ", with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.
You really don't get it, do you? The software is *licensed* to you, meaning you are granted an explicit right to use it. The terms of your license to use the software dictate your ability to copy it, resell it, distribute it...seeing a trend here? ONCE AGAIN FOR THE HARD OF HEARING, YOU HAVE NO FIRST-SALE RIGHTS IN SOFTWARE BECAUSE YOU DO NOT OWN IT. If you owned Windows when you bought it then you would be Bill Gates. Duh!?
Whoops, you can't trademark a post. I think you mean copyright. AAHHHGGG!! Ignorance overload on this story. Those of us who know the law are disgusted with the utter self-imposed cluelessness of your people.
There is no first sale doctrine with software "purchases" because it's almost always not a sale, it's a license. A license is a right to use with ownership retained by the vendor. You have no first sale rights in any software you "buy."
I see a lot of people complaining that they don't want to have to take each EULA to their lawyers to determine whether the terms are agreeable. This is missing the point. Under the statutory law (that's law passed by legislative bodies, rather than courts, BTW) a consumer's rights can be implied into or superimposed over the terms and conditions that appear in a EULA. Also, statutory law can govern the rights between a vendor and a consumer in areas where the agreement is silent. THIS IS WHAT UCITA ATTEMPTS TO DO, BUT UCITA IS VENDOR-BIASED.
Since ordinary people like you and me will never be able to negotiate any EULA's with Microsoft or any other vendor, we have to try to make laws like UCITA more consumer-oriented so that vendors are not allowed to place outrageous terms in the EULA's. Therefore, keep in mind that (a) lawyers can't help you negotiate EULA's because you (joe consumer) have no leverage, and (b) even though joe consumer has no leverage, all the joe consumers together can tell their lawmakers to override the overreaching portions in EULA's through legislation.
Final point: don't forget that courts can override both the vendor's EULA, but also the statutory law, so if both of them still don't get it (as apparently they do not), then there is always hope that a judge will see the light and change things for the better. Remember to chose your battles, and this is one worth fighting.
You're right -- "reasonable amount of time" is always a debatable amount of time. I actually agree that this kind of "shrinkwrap" or "clickwrap" agreement is very anti-consumer and is one of the aspects of UCITA that blows. I just want you to be aware that if you open this type of product, then read the EULA inside, then decide you don't agree, then return the product, you have an argument that is probably supported by UCITA (at least the model version issued by the NCCUSL) if the vendor disputes your return. Also, you have a good argument if the vendor seeks to enforce the license against you -- you never agreed to it because you returned it right away! It sucks, but it's better than nothing.
Slashdot Mirror
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You should hang out with dolphins more often.
Doesn't matter if it's a criminal case or civil. If a court orders you to turn over documents, then you turn over the documents. It's not Apple that's forcing Yahoo to turn them over, it's the court that granted Apple's motion to compel.
...should shampoo my crotch.
Wrong. Mac users appreciate the fanfare, and fanfare helps the bottom line. If you understood the law, you'd understand Apple's legal position. If you think an OEM shouldn't be able to throw its weight into its partner relationships, you don't understand how business works, either.
Apple developing x86 solutions? You, like so many other peecee Wintel leemurs, have such low expectations that you can't get your mind around what Apple's strategy is.
Patent Pending is a notice that a patent application is filed. It does not protect against the disclosure and on-sale rules that prevent the granting of an application after the subject matter has been put into production and commercial use.
ALSO, we're talking about non-U.S. patent law here, which may not support your glib and uninformed solution.
From the innovator(tm) that brought you Bob(tm) and The Paperclip(tm), it's another insidious intelligent agent -- The Agitator(tm). I can hear it now:
"I couldn't help but notice that you're an idiot, and that you type like my gramma."
"Hey pal, you wouldn't know a DLL if it bit you in the ass."
"Excuse me! I'm TRYING to innovate(tm) over here!"
"Why don't you ever talk to me anymore...I mean *really* talk to me?"
Bleh. This is just another crappy half-assed cock-eyed notion from that leemer Horvitz.
See http://research.microsoft.com/~horvitz/ if you want to email the guy who "invented" The Paperclip and Bob. If you email him, be sure to start with..."It looks like you're about to write a letter! Allow me to assist!"
That had to be cannonball. He was just running so fast it looked like a teleport. Obviously it wasn't nightcrawler, since he wasn't blue and since *I* didn't smell any brimstone! ;)
Huh? you just pointed out the idiotic idiosynchrosies of ms products, and then argued that those same features are more efficient? you meant to say that fud and learned workarounds are keeping ms in the throne, didn't you. think about what a lemming mentality that is.
Thing is...if apple lawyers don't send these types of letters and threaten lawsuits, then trade secret protection of the design of their forthcoming machine is forfeited under the law. That's why they go through the motions. It's not really a big deal...since they DO own the damn proprietary and confidential design of thier as-yet-unrealeased product! 'Sup with all the hostility?
Don't forget Sorenson. Apple just shells out cash to them for a license, AFAIK.
The doctrine of consideration long ago devolved to the point where a mere "pepper grain" is adequate consideration to support a contractual obligation. The idea is that the notion of "illusory" contracts (as well as other fundamental protections against unconscionable contracts) has displaced the need for consideration.
Once again, captain is either (a) unfunny, (b) misinterpreting the law, or (c) both.
Hmmm...this is odd. There is a near identical post to this one by "Yu Suzuki" in the thread on PDF's. Am I just catching on to something, or is one of the greatest video game designers in history auto-posting this ramble. Can someone clue me in? I mean, Yu Suzuki's games rock, but he sounds a bit like Bob Dole when he posts. Perplexing...
First of all, I'm a lawyer and I know what all the terms you mentioned mean. The first thing I do when I arrive at my office is read /. As for your suggestion that we assemble a geek think tank, I think you're on the right track to the extent that there needs to be dialog between lawyers and pure technologists. However, writing the law is a bit like writing code -- but there are tolerances built into the law for prospective contingencies that cannot be captured in a purely logical model, and the courts should be thought of as debuggers. But don't forget that the law is fundamentally driven by, applied by, interpreted by, and written by human beings. There is a degree of imperfection built into the legal system. For instance, the law of equity allows a judge to exercise his or her personal discretion under circumstances where pure application of the law runs afoul of the particular facts. Discontinuities in the law are common and should be viewed as an acknowledgement that human systems will never execute with the same precision as a computer.
The only thing as rare as a lawyer that genuinely knows technology is a geek that can articulately express him or herself. I hear a lot of gripes from geeks about lawyers; so my gripe with geeks is that their credibility is almost always undemined by their total lack of persuasive skills. Are you surprised that geeks feel powerless when (as a group) geeks cannot even spell? Do you even understand, while you read this, why spelling and grammar and diction matter? My gripe with geeks is that they each walk around with a huge brain stuffed full of techno-esoterica, but have totally neglected the skill set that allows them to pass that information on to others. To retain control over your personal brain-trust is fundamentally arrogant, and on a societal level totally counter-productive.
Having revealed to you my rather bigoted opinion of geeks writ large, you should take a moment to reflect on the possibility that lawmakers are not a uniform class of morons, and that the concepts driving our system of jurisprudence are actually quite sound and have worked pretty well for many years without granting a veto-power to a star-chamber of engineers.
The recurring anti-lawyer theme on slashdot can be explained as follows: geeks are trained to apply elegant and efficient solutions to problems, while lawyers are trained to apply eloquent and articulate interpretations to problems; the animosity of geeks against lawyers (and vice versa) is driven by a misunderstanding of the roles each other plays.
My understanding was that the auction site need only take infringing material off the site for a short period of time (~20 days?) and then can repost unless the claimant has filed a lawsuit based on the infringement.
There's one theme in the pro-industry spin that bears some thoughtful consideration -- do we really want to lose the 'lottery' system of creative expression. While it may seem that the recording industry rewards mediocrity like the Backdoor Boyz, isn't there an argument that a thousand other truly talented artists are motivated to express themselves in the hopes of a multimillion dollar "carat" on a stick? I know some people feel that art and commerce are best kept apart. Are we "nuking" the 'jackpot' music industry? Is this really a good thing?
Don't forget trade secrets!
Wow. Ok, here we go again. A while back, you said:
...etc.
"That's ridiculous. If MS sells (or resells) their product they can't dictate that you agree to a license to use it. You already bought it.
It may be difficult as hell to get it working without ever clicking on the licensing stuff, but it's unimaginable to me how MS could violate the first sale doctrine."
I have never argued that ideas can be owned. It doesn't take an hundred thousand dollar education in the law (although I do have one) to know that ideas cannot be owned. What I have said all along is that copyrights are not owned by purchasers of off the shelf software.
According to your quote above, you think that by purchasing off the shelf software, you are entitled to the first sale doctrine.
" 106. Exclusive rights in copyrighted works 36 Subject to sections 107 through 121,the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1)to reproduce the copyrighted work in copies or phonorecords;
(2)to prepare derivative works based upon the copyrighted work;
(3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership,or by rental,lease,or lending;"
And...the first sale doctrine appears in Section 109 of the Copyright Act...
" 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(a)Notwithstanding the provisions of section 106(3),the owner of a particular copy or phonorecord lawfully made under this title,or any person authorized by such owner, is entitled,without the authority of the copyright owner,to sell or otherwise dispose of the possession of that copy or phonorecord."
Now...how does any EULA violate the first sale doctrine? The first sale doctrine says nothing about the copyright owner's ability to impose restrictions on the owner of the copy's ability to resell the copy. In fact, the first sale provision of the Copyright Act and the caselaw merely addresses situations where the copyright owner has been silent on the issue. Where a copyright owner imposes restrictions by means of a license agreement, there is no first sale right to resell. If you have any evidence to the contrary, I'd like to see it.
Ok, professor. Let's try some real authority for a change. From the Copyright Office website:
:P :P
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
AND ALSO...
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
AND AGAIN FROM THE MOUTH OF THE COPYRIGHT OFFICE...
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
AND FINALLY, FROM SECTION 101 OF THE COPYRIGHT ACT:
"Copyright owner ", with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.
BTW, the Copyright Office quotes are from:
click here for accurate information
And the Copyright Act is at:
click here for more accurate information
Have fun learning!
You really don't get it, do you? The software is *licensed* to you, meaning you are granted an explicit right to use it. The terms of your license to use the software dictate your ability to copy it, resell it, distribute it...seeing a trend here? ONCE AGAIN FOR THE HARD OF HEARING, YOU HAVE NO FIRST-SALE RIGHTS IN SOFTWARE BECAUSE YOU DO NOT OWN IT.
If you owned Windows when you bought it then you would be Bill Gates. Duh!?
Whoops, you can't trademark a post. I think you mean copyright. AAHHHGGG!! Ignorance overload on this story. Those of us who know the law are disgusted with the utter self-imposed cluelessness of your people.
There is no first sale doctrine with software "purchases" because it's almost always not a sale, it's a license. A license is a right to use with ownership retained by the vendor. You have no first sale rights in any software you "buy."
I see a lot of people complaining that they don't want to have to take each EULA to their lawyers to determine whether the terms are agreeable. This is missing the point. Under the statutory law (that's law passed by legislative bodies, rather than courts, BTW) a consumer's rights can be implied into or superimposed over the terms and conditions that appear in a EULA. Also, statutory law can govern the rights between a vendor and a consumer in areas where the agreement is silent. THIS IS WHAT UCITA ATTEMPTS TO DO, BUT UCITA IS VENDOR-BIASED.
Since ordinary people like you and me will never be able to negotiate any EULA's with Microsoft or any other vendor, we have to try to make laws like UCITA more consumer-oriented so that vendors are not allowed to place outrageous terms in the EULA's. Therefore, keep in mind that (a) lawyers can't help you negotiate EULA's because you (joe consumer) have no leverage, and (b) even though joe consumer has no leverage, all the joe consumers together can tell their lawmakers to override the overreaching portions in EULA's through legislation.
Final point: don't forget that courts can override both the vendor's EULA, but also the statutory law, so if both of them still don't get it (as apparently they do not), then there is always hope that a judge will see the light and change things for the better. Remember to chose your battles, and this is one worth fighting.
You're right -- "reasonable amount of time" is always a debatable amount of time. I actually agree that this kind of "shrinkwrap" or "clickwrap" agreement is very anti-consumer and is one of the aspects of UCITA that blows. I just want you to be aware that if you open this type of product, then read the EULA inside, then decide you don't agree, then return the product, you have an argument that is probably supported by UCITA (at least the model version issued by the NCCUSL) if the vendor disputes your return. Also, you have a good argument if the vendor seeks to enforce the license against you -- you never agreed to it because you returned it right away! It sucks, but it's better than nothing.