I really like this idea, but, well it does sound... um... socialist.
And to paraphrase my representaive in Congres (who, frieghteningly actually no longer sounds like an extremist compared to the other grass eaters there)... if you can't make money off it, what the hell good is it?
The problem with NPI is that it will either have to be taxpayer supported and we're still in an anti-tax mood in this country (and I don't see the end to this in sight yet); or it'll have to be supported by user fees -- which will be resisted -- the whole point is to make as if this is free isn't it? Or donations and sponsorships -- you've seen public TV -- an ad is an ad is an ad. So none of these seem quite like the solution either.
So we're left with a variation on the orignal question, how do you make enough money on the internet to, as miminum pay your expenses (publishing on the net is relatively cheap but it ain't free) or, if you're inclined that way, actually support youself?
When I am confident I have the answer to these questions I will set up my webbusiness and... well, you can imagine the rest....
It is true that the appeal has to go on the Appeals Court's docket. Tho' as of this point in time MS has simply filed a notice that it will appeal, the appeal hasn't actually been filed. So no one, not the Government or even for that matter MS's attorney actually know what the grounds of the appeal will be. Judging from the quotes attributed to MS's attorneys, they plan to challenge everything they can think of.
Once MS does file its actual appeal, then the Government responds. The response normally takes the form of factual and legal arguments that support the contention that the Court should make a summary judgement in favor of the Government. If the court agrees with the Government, the summary judgement is entered and the trial (District) court's decision is affirmed. So while the Appeals Court must reach some sort of decsion on the appeal, it does not follow that there will necessarily be a hearing at all, much less lengthy ones. The Appeals Court can also find partially in favor of the Government at this point, thus limiting the issues that will actually be argued before it.
Furthermore, the appeal must deal strictly with matters of law and court procedure. Questions of fact have been decided by the trial court and are only subject to review if the findings are so out of accord with the record that no rational connection can be made between the record and the conclusion. As a practical matter, the appeal will focus entirely on the process the court used in the trial and whether or not it accorded with published Federal procedural guidelines, and with interpretation of the law. The appeal would only affect facts if the appeals court finds that some of the facts considered should never have been considered due to legal issues or procedural questions. In such a case, the appeal court could order the trial court to reconsider certain findings excluding the evidence that had been improperly cnosidered in the orginal trial. Reconsideration, need not neccesarily lead to a different conclusion. In rare instances, the appelas court could dismiss a finding, if it concludes that after the exclusion of the impremissible evidence, that there is no reasonable way to reach the original conclusion based on the facts remaining in the record.
MS will certainly challenge every decision Judge Jackson made during the trial on procedural matters, and will argue its theory of law both on evidentiary questions and the way the trial court applied anti-trust and other relevant legal doctrine. Given the complexity of the case MS is likely to raise, it seems virtually certain that there will be hearings.
But it seems likely that the Circuit Court will find in favor of the Government on at least some of the issues and thus limit the issues that will actually be argued before the court.
Eventually the court will render a final decision. The ruling could favor the Government, MS or cut both ways finding partially for the MS and partially for the Government. In the either of the first to situations the losing side is almost certain to appeal to the Supreme Court. In the last instance, the case would be returned to the trial court for a decision on the facts, based on the portion of the ruling favoring MS. The rest of the case could be appealed to the Supreme Court, but the Supreme Court is unlikely to hear it until all of the lower court procedings are finished. This is under the doctrine of judicial economy -- there's no point in hearing part of an appeal on a case, where further appeals on other aspects of the case are possible -- it is a better use of the court's time to hear appeals on a case only once.
When the Supreme Court does actually receive the appeal, unlike the Appeals Court, it must first decide whether or not the case should be subject to its review. The Supreme Court does not take all cases appealed to it, it takes only small fraction of cases -- just the ones that its decision can resolve important Constitutional issues, unify interpetation of the law where several Appeals Courts have reached decisions that conflict among them or can generally advance the interpretation of a statute in important ways.
If the Supreme Court declines to hear a case, by this action it affirms the decision of the appeals court. If it accepts the case, then the appeal is scheduled for a hearing, etc.
Because the supreme Court is asked to review so many cases, and it is both a small body and one that scrutinizes the cases before it in great detail, it relies on the appeals courts to narrow and focus the issues. The appeals court winnows out the theories and arguments that have little merit or basis. What remains, then, are the most serious, big-picture legal questions. This winnowing process is essential to the effective working of the Supreme Court, and it is for this reason that it is very unlikely to accept a direct appeal from the trial court. There was no neccesary reason why it would have done so before the Appeals Court said it wanted to hear the case, and even less reason for it to do so now.
Two things are clear, MS means to delay this case as long as it can and will use every legal claim and arguement it can come up with to do so. The system is likely to work in favor of the delaying tactic. Although once he settled in, Judge Jackson moved the case with great alacrity, the Appeals Court may do the same. But in any case, it doesn't follow that delay will lead to an ultimate MS victory. It is also clear, that while this case is of great importance in the geek community, in the pc/software industry and those parts of "Wall Street" hitched to it, it is not necessarily clear that there is anything in this case that THIS Supreme Court will deem as worthy of its attention.
The idea of intellectual property evolved as a legal concept to protect the creative efforts of individuals. Not to put to fine a point on it, IP was originally intended to protect authors from publishers -- in short to help people not comoanies. Surprise surprise the companies got a hold of it and now its the basis for an anticompetitive monopoly.
OK, enough of that. What MS is trying to do here is leverage its "property" right to fight the break up. This will no doubt slow the process down. But historically, the courts have viewed IP rights in much the same way as they do property rights generally. They are not absolute rights. And MS is likely to find that its ownership of IP provides it limited leverage with the courts for that very reason.
A number of posters have noted that giving access to source code/APIs doesn't alter MS's ownership rights, MS will still own them and they can not be copied exactly without permission from MS. Opening them up would make it easier to use them for all.
Furthermore, MS would have an obligation to vigorously pusue anyone who copied without permission or used them in violation of whatever permission MS granted. Because the case law makes it clear that the only way to protect a copyright and a trademark is to vigorously pursue all violators you know of. An owner who fails to do this will eventually find that the property is in the public domain. Asprin started out as a brand name and came to be used as a label for all products containing... well asprin. By the time the orginal manufacturer got around to fighting the trademark infringement, the courts found that asprin had become a generic name for a class of products. Through inaction, the manufacturer had lost a very powerful brand name.
Just for clarity's sake, under IP law, one can not own an idea, one can only own the way the idea is expressed. This ownership is limited to a pretty exact way of expressing the idea. No one can copy exactly the way an idea is expressed without violating copyright law. But even fairly minor variations seem to be permissible.
So, MS could never own the idea of, for example, the particular approach to connecting and communicating with a printer, but it can and does have the right to own the exact code that performs this.
The really open question is how different code would have to be to from the original to avoid copyright infringement. I don't think there is any answer to this question, not even a very good theoretical one right now.
None of this apparently applies to patents where the patent office is willing to issue a patent for a very broad idea of a task and how to accomplish it, and then, under current patent law, virtually all techniques for accomplishing that task are covered by the patent and and owned by the owner of the patent, whether or not the patent owner come up with it. But even patents are limited rights.
One final problem for MS is that opening up all of this puts all of this in a fairly public realm. No only must MS protect its code from unauthorized uses, the users will then have the right to challenge whether MS had the right to copyright the code in the first place. This question lead to the demise of Ashton-Tate (does this date me?). Just maybe MS, the bastion of 'inovation', has actually used some other folks' code without permission or copyrighted public domain code rather than innovating all of its code on its own. Competitors might also charge that certain parts of MS's code were exactly like the competitors' code and that the offending code was written by former employees who now work for MS and knew about or perhaps even wrote the original code. Even if none of these things are true, competitors would be able to argue them and ask a court to decide -- delaying and winning at least temporary competitive advantage from the use of MS's proprietary code (if it turns out to be MS's code).
Of course, if only the API (and not the source code) is "open", the source code problems don't arise. And the only reason to fight release of the API code is to prevent competitors applications from running on the MSOS as well as MS's proprietary apps. And why would anyone imagine MS behaving in such a blatantly anticompetitive fashion -- there must be some other reason that explains this and I just haven't thought of yet.
The science is fairly well established. But what good is? If I'm of European descent, according to this I know that I must almost certainly be related to one of Syke's 7 "matriclans." But since I am of Europeam descent then I already can take this as known, why do I need a "test?" Anyway at a 150,000 years ago, I'm pretty sure this has droped out of my family's oral traditions by now. As to my more recent geneaology, unless someone has tested my (purported) ancestors, after the test I will know no more about my genealogy than I do now. At the risk of seeming like a conspirologist, this test seems to do two things. 1) get the.com some revenue, which may or may not turn into money for the backers. And 2) add "voluntarily" to the DNA data base of whoever's lab this stuff ends up in. The best part is I get to pay for it and never know what's really behind this!
Sure this stinks, but there are some options. You can continue to just complain, bet Pinklerton don't care. You can launch an attack, probably not that hard, but then who's gonna be after you. Or you can get them they only place it matter -- in the wallet. If Pinkerton thinks they can make money, they'll go for it... unless for some reason it is painful or hurts its bottom line somewhere else. Creating controversy would make it more painful to go forward, how painful would be a matter of how much controversy for how long. It might also bring the companies reputation under scrutiny, which might cause them to reconsider this particular initiative in light of overall corporate strategy. BTW: JonKatz sometimes doing the right thing has to be done even when success is unlikely. bravo you've earned real karma for this.
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And to paraphrase my representaive in Congres (who, frieghteningly actually no longer sounds like an extremist compared to the other grass eaters there) ... if you can't make money off it, what the hell good is it?
The problem with NPI is that it will either have to be taxpayer supported and we're still in an anti-tax mood in this country (and I don't see the end to this in sight yet); or it'll have to be supported by user fees -- which will be resisted -- the whole point is to make as if this is free isn't it? Or donations and sponsorships -- you've seen public TV -- an ad is an ad is an ad. So none of these seem quite like the solution either.
So we're left with a variation on the orignal question, how do you make enough money on the internet to, as miminum pay your expenses (publishing on the net is relatively cheap but it ain't free) or, if you're inclined that way, actually support youself?
When I am confident I have the answer to these questions I will set up my webbusiness and ... well, you can imagine the rest....
Once MS does file its actual appeal, then the Government responds. The response normally takes the form of factual and legal arguments that support the contention that the Court should make a summary judgement in favor of the Government. If the court agrees with the Government, the summary judgement is entered and the trial (District) court's decision is affirmed. So while the Appeals Court must reach some sort of decsion on the appeal, it does not follow that there will necessarily be a hearing at all, much less lengthy ones. The Appeals Court can also find partially in favor of the Government at this point, thus limiting the issues that will actually be argued before it.
Furthermore, the appeal must deal strictly with matters of law and court procedure. Questions of fact have been decided by the trial court and are only subject to review if the findings are so out of accord with the record that no rational connection can be made between the record and the conclusion. As a practical matter, the appeal will focus entirely on the process the court used in the trial and whether or not it accorded with published Federal procedural guidelines, and with interpretation of the law. The appeal would only affect facts if the appeals court finds that some of the facts considered should never have been considered due to legal issues or procedural questions. In such a case, the appeal court could order the trial court to reconsider certain findings excluding the evidence that had been improperly cnosidered in the orginal trial. Reconsideration, need not neccesarily lead to a different conclusion. In rare instances, the appelas court could dismiss a finding, if it concludes that after the exclusion of the impremissible evidence, that there is no reasonable way to reach the original conclusion based on the facts remaining in the record.
MS will certainly challenge every decision Judge Jackson made during the trial on procedural matters, and will argue its theory of law both on evidentiary questions and the way the trial court applied anti-trust and other relevant legal doctrine. Given the complexity of the case MS is likely to raise, it seems virtually certain that there will be hearings.
But it seems likely that the Circuit Court will find in favor of the Government on at least some of the issues and thus limit the issues that will actually be argued before the court.
Eventually the court will render a final decision. The ruling could favor the Government, MS or cut both ways finding partially for the MS and partially for the Government. In the either of the first to situations the losing side is almost certain to appeal to the Supreme Court. In the last instance, the case would be returned to the trial court for a decision on the facts, based on the portion of the ruling favoring MS. The rest of the case could be appealed to the Supreme Court, but the Supreme Court is unlikely to hear it until all of the lower court procedings are finished. This is under the doctrine of judicial economy -- there's no point in hearing part of an appeal on a case, where further appeals on other aspects of the case are possible -- it is a better use of the court's time to hear appeals on a case only once.
When the Supreme Court does actually receive the appeal, unlike the Appeals Court, it must first decide whether or not the case should be subject to its review. The Supreme Court does not take all cases appealed to it, it takes only small fraction of cases -- just the ones that its decision can resolve important Constitutional issues, unify interpetation of the law where several Appeals Courts have reached decisions that conflict among them or can generally advance the interpretation of a statute in important ways.
If the Supreme Court declines to hear a case, by this action it affirms the decision of the appeals court. If it accepts the case, then the appeal is scheduled for a hearing, etc.
Because the supreme Court is asked to review so many cases, and it is both a small body and one that scrutinizes the cases before it in great detail, it relies on the appeals courts to narrow and focus the issues. The appeals court winnows out the theories and arguments that have little merit or basis. What remains, then, are the most serious, big-picture legal questions. This winnowing process is essential to the effective working of the Supreme Court, and it is for this reason that it is very unlikely to accept a direct appeal from the trial court. There was no neccesary reason why it would have done so before the Appeals Court said it wanted to hear the case, and even less reason for it to do so now.
Two things are clear, MS means to delay this case as long as it can and will use every legal claim and arguement it can come up with to do so. The system is likely to work in favor of the delaying tactic. Although once he settled in, Judge Jackson moved the case with great alacrity, the Appeals Court may do the same. But in any case, it doesn't follow that delay will lead to an ultimate MS victory. It is also clear, that while this case is of great importance in the geek community, in the pc/software industry and those parts of "Wall Street" hitched to it, it is not necessarily clear that there is anything in this case that THIS Supreme Court will deem as worthy of its attention.
OK, enough of that. What MS is trying to do here is leverage its "property" right to fight the break up. This will no doubt slow the process down. But historically, the courts have viewed IP rights in much the same way as they do property rights generally. They are not absolute rights. And MS is likely to find that its ownership of IP provides it limited leverage with the courts for that very reason.
A number of posters have noted that giving access to source code/APIs doesn't alter MS's ownership rights, MS will still own them and they can not be copied exactly without permission from MS. Opening them up would make it easier to use them for all.
Furthermore, MS would have an obligation to vigorously pusue anyone who copied without permission or used them in violation of whatever permission MS granted. Because the case law makes it clear that the only way to protect a copyright and a trademark is to vigorously pursue all violators you know of. An owner who fails to do this will eventually find that the property is in the public domain. Asprin started out as a brand name and came to be used as a label for all products containing ... well asprin. By the time the orginal manufacturer got around to fighting the trademark infringement, the courts found that asprin had become a generic name for a class of products. Through inaction, the manufacturer had lost a very powerful brand name.
Just for clarity's sake, under IP law, one can not own an idea, one can only own the way the idea is expressed. This ownership is limited to a pretty exact way of expressing the idea. No one can copy exactly the way an idea is expressed without violating copyright law. But even fairly minor variations seem to be permissible.
So, MS could never own the idea of, for example, the particular approach to connecting and communicating with a printer, but it can and does have the right to own the exact code that performs this.
The really open question is how different code would have to be to from the original to avoid copyright infringement. I don't think there is any answer to this question, not even a very good theoretical one right now.
None of this apparently applies to patents where the patent office is willing to issue a patent for a very broad idea of a task and how to accomplish it, and then, under current patent law, virtually all techniques for accomplishing that task are covered by the patent and and owned by the owner of the patent, whether or not the patent owner come up with it. But even patents are limited rights.
One final problem for MS is that opening up all of this puts all of this in a fairly public realm. No only must MS protect its code from unauthorized uses, the users will then have the right to challenge whether MS had the right to copyright the code in the first place. This question lead to the demise of Ashton-Tate (does this date me?). Just maybe MS, the bastion of 'inovation', has actually used some other folks' code without permission or copyrighted public domain code rather than innovating all of its code on its own. Competitors might also charge that certain parts of MS's code were exactly like the competitors' code and that the offending code was written by former employees who now work for MS and knew about or perhaps even wrote the original code. Even if none of these things are true, competitors would be able to argue them and ask a court to decide -- delaying and winning at least temporary competitive advantage from the use of MS's proprietary code (if it turns out to be MS's code).
Of course, if only the API (and not the source code) is "open", the source code problems don't arise. And the only reason to fight release of the API code is to prevent competitors applications from running on the MSOS as well as MS's proprietary apps. And why would anyone imagine MS behaving in such a blatantly anticompetitive fashion -- there must be some other reason that explains this and I just haven't thought of yet.
The science is fairly well established. But what good is? If I'm of European descent, according to this I know that I must almost certainly be related to one of Syke's 7 "matriclans." But since I am of Europeam descent then I already can take this as known, why do I need a "test?" Anyway at a 150,000 years ago, I'm pretty sure this has droped out of my family's oral traditions by now. As to my more recent geneaology, unless someone has tested my (purported) ancestors, after the test I will know no more about my genealogy than I do now. At the risk of seeming like a conspirologist, this test seems to do two things. 1) get the .com some revenue, which may or may not turn into money for the backers. And 2) add "voluntarily" to the DNA data base of whoever's lab this stuff ends up in. The best part is I get to pay for it and never know what's really behind this!
Sure this stinks, but there are some options. You can continue to just complain, bet Pinklerton don't care. You can launch an attack, probably not that hard, but then who's gonna be after you. Or you can get them they only place it matter -- in the wallet. If Pinkerton thinks they can make money, they'll go for it ... unless for some reason it is painful or hurts its bottom line somewhere else. Creating controversy would make it more painful to go forward, how painful would be a matter of how much controversy for how long. It might also bring the companies reputation under scrutiny, which might cause them to reconsider this particular initiative in light of overall corporate strategy. BTW: JonKatz sometimes doing the right thing has to be done even when success is unlikely. bravo you've earned real karma for this.