It seems to me that this legal challenge puts SCO in somewhat of a box.
Its far nastier than that. The GPL insists that if the entire codebase isn't distributed under the GPL then none of it is. If SCO asserts that the GPL doesn't apply to the code in the kernel version of Linux they shipped is not under the GPL then they distributed the kernel without a valid license to do so. That makes them liable for damages to the thousands of authors who contributed code to the Linux kernel. If anyone ever registered one of the kernels with the copyright office then they're also liable for punitive damages to thousands of plaintiffs.
At this point, SCO's damned if they do and damned if they don't. They screwed up bad.
I want to see the code, because I'm interested in seeing whether there's any truth in the claim.
Exactly. That's why its important to know which portion of the code base is at issue. But more important than learning whether the claim is true is fixing it so that even if its true today it ceases to be true tomorrow. That's why its important to track the exact code at issue back to its source -- something I've zero confidence that SCO has accomplished.
I've nothing against SCO until such time as I can determine for myself whether or not they have a case, or if they are just trying it on.
I vehemently disagree with you there. Regardless of the merits of SCO's case, they're treating the entire Linux community as if we're some sort of villians. Worse, they've gone out of their way to prevent us from halting the very infringement they allege exists. That's horribly wrongheaded, and I hope they rot for it.
In programming parlance, this would mean that you can impliment the same broad concepts as long as you write the new code yourself without any copying.
The devil's in the details here. In theory what you've said is true regardless of whether or not you've seen the other guy's code. In practice, your only certain defense against an allegation of copying is that you havn't seen the other guy's code.
Its civil law, so the standard is preponderance or "greater weight" of the evidence. That means that if he's 51% and you're 49%, you lose.
Once the other guy proves that his code looked that way first the onus shifts to you to prove that your code was an independent creation rather than a copy or derivative. That's all but impossible if you've had access to his code.
He says that there were a lot of the same jokes in the comments. Any particular reason he can't grep the kernel source for those files and find the relevant sections?
First off: this story is a troll. No manager however insane would expect his employees would expect his employees to increase their hours worked by 110% for no additional compensation. You either misunderstood the situation, or made it up.
Second: if you weren't making this up, then in a 6% unemployment market what is wrong with you that you need to ask what to do when an employer tells you that you will work 84 hours a week for the next six months. You say NO, and if they insist then you quit and get a new job. Dope!
News flash: the current unemployemnt rate is not particularly high. From '80 to '95 the unemployment rate ranged from 5.3% to 9.7%. Today we're sitting between 6% and 7%, the lower part of that range. Believe it or not, folks found jobs during those years. You can too.
Line numbers please?
on
Settling SCOres
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· Score: 4, Interesting
Could someone who knows the fellow ask him to select a version of Linux and indicate the actual filenames/line numbers where the code is alleged to be "the same?" The question here is "where did the code actually come from." To answer that, its first necessary to know precisely the code at issue.
From there, I would imagine that Linus has extensive records on where particular kernel submissions came from. That leads to affidavits to the effect that the code was an original work, or its replacement with code which in fact is an original work. Either of which solves the problem.
TV without Nielsen ratings would be better too, for similar reason.
We have TV without Nielsen ratings. We call it "PBS."
Is PBS better? Sometimes. Perhaps even often in recent years. Certainly no one has ever referred to PBS' content as mindless drivel, the way we talk about things like Survivor and American Idol.
But let me ask you this: If you could have only one TV station and you had to choose between ABC, CBS, FOX, NBC and PBS would you choose PBS? Didn't think so.
Folks, this is what UNIONS are all about. Don't like how the employer is treating you? Your colleagues feel the same? Form a Union or form a chapter of some larger union (e.g. Communication Workers of America).
A "mass departmental exodus" will get you fired -- whether that's self-desctructive for the company or not. A strike, on the other hand, has lots of law and precedent behind it as long as you follow the time-honored formulas. In some states, companies actually can't fire striking workers!
Perhaps more important, your company's CEO knows what a strike is. He learned about it in school when he earned his MBA, and he knows the formulas he's supposed to use to bargain with a union when one pops up in front of him.
Don't have strong enough convictions about the matter to accept the problems associated with unions? Then shut up get back to work.
Perjury isn't actionable in civil court... Its a bona fide FELONY CRIME. According to 1994 data from the Bureau of Justice, the average jail time for those convicted of perjury is 15.6 years. 1996 data has 87% of perjury cases resulting in conviction.
Those knuckleheads at the RIAA are sending out "good faith belief" notices under penalty of perjury every time their stupid bot sees the filename "michaeljackson.mp3" in your Kazaa directory.
We're talkin' jail, man! Find yourself a friendly prosecutor and you can nail their asses to the wall.
Its still innocent until proven guilty. The change is that if someone is willing to publicly assert (under pentalty of perjury no less) that you are guilty, then you must be willing to publicly assert that you're innocent.
Perhaps that lowers the bar too far for copyright holders to assert legal protections. I don't know and neither do you, but I have been following the matter closely and doing some non-reactionary critical analysis.
You want to fight this, do something smart: Find a friendly prosecuter and take them to court every time the falsely assert infringement. They're being real sloppy in how they determine that something infringes, too sloppy to reasonably sustain a "good faith belief." That's perjury, and perjury is a very serious crime.
As a matter of law, you hold the copyright until such a time as you sign your name to a paper which says "I assign the copyright for such and such to so and so."
Your contract with the ISP _could_ state that you agree to sign over any copyrights to the software you write upon request. Such a contract is enforcable, and you would be in breach if you refused to sign over the copyright. Breach or not, the copyright would still belong to you. Even if they sue, a court can only award monetary damages per title 17 section 201(e):
(e) Involuntary Transfer.-When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 [bankruptcy].
That is not, however, the contract stated in the example. The example said, "the copyrights [will] belong to the ISP." That's an attempt to preassign ownership of copyrights that do not (yet) exist. You're only allowed to do that on a "work made for hire."
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
You will note that computer software is not listed. If its not on the list, its not a work made for hire, and any copyrights must be explicitly assigned after the work has been created.
Many a contract has made this mistake, and more than a few companies have found themselves in trouble during the due-diligence phase of an acquisition because of it -- they're faced with tracking down long-gone programmers and convincing them to sign papers assigning the copyrights so that the buyer can have clear title to their software.
by our sheer numbers we redefine what is called right and wrong.
That's the true crux of issue. Morality is defined by those who practice it, and folks have considered casual copying to be reasonable ever since audio and later video recording was invented.
With tools like the DMCA, RIAA is trying to change that. As they represent only the tiniest minority in that viewpoint, they deserve to fail.
That being said, be aware that they're a minority with deep pockets and you're not particularly anonymous on the net. When someone with deep pockets decides to to set an example, they can do a lot of damage.
The third case, "Widget Frosting", sounds completely practical. The premise that hardware makers produce open source software so that the OS development community will work for free to produce better drivers and interface tools for their hardware products. It sounds great on the surface, especially for the company that produces the hardware: they get free drivers and do not have to pay for expensive developers. The OS community wins by getting presumably stable drivers and tools. What is not mentioned is the reason hardware makers usually don?t do this is because they do not want to reveal trade secrets regarding their hardware design. Production of efficient drivers requires an intimate knowledge of the hardware the driver is for. It is almost always the case that it is in the hardware developers? best interest to keep their hardware secrets close to home. This also brings up the question of why isn?t hardware "open"? So much for the frosting case.
And if you buy that, I have a 12 terahertz processor I'd like to sell you.
There are no real secrets in main stream computer hardware, trade or otherwise. Why not? Because the companies patent anything even moderately novel, and the patent process requires full disclosure. Anything else is subject to reverse engineering, which is how some of the OSS drivers are built.
These days, a main stream hardware company that refuses to disclose its interfaces is only doing itself harm. If it actually has something commercially valuable, its rivals will reverse engineer it anyway and whether it does or doesn't holding that information too tightly excludes the group of people most inclined to be first-adopters.
In the US, copyright, trademark and patent law is exclusively federal and thus it applies equally in all 50 states. Contract law is covered almost exclusively by the uniform commercial code, which has been passed in all 50 states and thus applies equally in all 50 states.
The only two jokers in the deck are UCITA, which I believe has only been passed in Virginia and Maryland, and trade secret law which is different in every state.
Outside the US, all bets are off. Some countries have no meaningful intellectual property law at all while others have burdensome structures that make the DMCA look positively consumer friendly. But then, we're talking about Verizon and a DMCA issue, which is strictly US.
someone hacked my account. my ip changes every time i login. prove it's really me.
Don't have to. Copyright issues are civil violations, which go by preponderance of the evidence. Once its traced to your account, the burden is on you to prove that you weren't using it and didn't authorize its use this time around.
You're not particularly anonymous on the net either. If I have your IP and I want to know who you are, I can find out. I pay less than $100 to the local courthouse to file a small-claims suit for whatever my imagnination decides you've done against me and suddenly I have the power of discovery. Discovery is cool. Discovery lets me issue a subpoena to your ISP for your identity and everything they know about the IP/date/time when you were logged in. I don't even have to pursue it if I don't want to; I can drop the case once I know who you are and deal with you some other way (e.g. publishing your identity).
It gets more difficult if you've routed yourself where the trail leads through a computer outside the US, but you didn't do that for file swapping, did you? And even if you did, its amazing what a courteous call from Officer Bob can shake loose.
Unlike ordinary "John Doe" subpoenas, the Digital Millennium Copyright Act (DMCA) allows copyright holders to subpoena information without first seeking a judge's blessing, making it an easier and cheaper method for tracking down alleged copyright infringers.
That's not correct. Had Verizon responded by shutting off the offending material, it could not have been compelled to reveal the subscriber's information short of RIAA filing a John Doe suit.
Verizon made a different claim. It said, "I'm just an innocent ISP. Someone else owns and is in posession of those servers." RIAA then quite reasonably said, "Well then you have to tell us how to get in touch with them so that we can serve them the same DMCA notice." Verizon said, "Nuh uh!" and the current legal battle ensued.
Basically, Verizon thought they saw a hole in the law and were trying to take advantage of it. The safe harbor portion of the law says that in order to be protected from copyright infringment claims, Verizon would have to take down any infringing material a customer put on their server at the owner's request, UNLESS the customer wrote a counter letter claiming that the material was non-infringing. If the customer wrote such a letter, Verizon could leave the material up and still not be liable for any infringement, however they would have to pass the letter back to the complainer and the letter was required to include the customer's contact information.
Not explicitly addressed in the law was the understanding that the IP addresses assigned to various companies was a matter of public record, stored at the various IP registries, so a copyright owner could directly determine who owned a particular server.
Verizon went to court and said, "That IP address is delegated to someone else, and just because the IP block delegations to me are published doesn't mean I have to publish who I delegate IP addresses to."
In essence, the court said, "Horse puckey! The IP address registry says that's your IP address. If its not, you have to say whose it is. And you better hurry up before we decide that it was yours after all and you lose your safe harbor protection!"
If you are an actual employee, paid a salary or paid hourly where they withhold taxes and social security and what not, then any work done within the reasonable scope of your employment is considered work made for hire, thus the copyright vests in the employer rather than in you.
However, in almost every other circumstance, the copyright vests in you and must be explicitly transferred. This means that if you're a consultant, you own the work. Or if you're paid by the job, you own the work. Or if the work isn't reasonably within the scope of your employment, you own the work.
Some examples:
You are a janitor at the local school. While at work, you go into the computer lab and write the next Microsoft Windows. Who owns the work? You do. Although done on your employer's time and facilities, it was not within the scope of your employment. (Note however that the school can fire you and sue for misuse of facilities.)
A local ISP pays you $1000 to write a spam filter. Who owns it? You do. You were not an employee of the ISP.
A local ISP pays you $1000 to write a spam filter. You sign a contract which says, "I agree to write a spam filter and the copyrights belong to the ISP." Who owns it? You do. You can't assign rights to a work that hasn't yet been created.
A local ISP pays you $1000 to write a spam filter. After writing the software you sign a contract which says, "I assign the rights to this software to the ISP." Who owns it? The ISP does. You did first, and then you assigned the rights.
Here's a tricky one:
You work (as an employee) for a company writing accounting software. You sign an employment contract which says, "All software I write while employed by the company belongs to the company." In your spare time you write a spam filter. Who owns it? You do. A court would find that the actual fact was that accounting software was the scope of your employment. The only software that's work made for hire (whose copyrights vest in the employer) is the software written within the scope of your employment. And, as previously mentioned, you can't assign copyrights for something you havn't written yet.
What if you wrote the next Lotus 123? Then the company would own it. A spreadsheet is reasonably accounting software which was within your actual scope of employment.
Here's a trickier one:
You work (as an employee) for a company writing accounting software. You sign an employment contract which says, "I will assign rights to the company to all software I write while employed." In your spare time you write a spam filter. Who owns it? You do. That's right, you do. BUT, you have a valid contract with your company which compells you to write a document which says, "I assign the rights to this software to the company." If you fail to do so, you are in breach of contract.
What about when the contract said, "All software I write while employed by the company belongs to the company?" Are you in breach of contract if you don't assign the rights? You are not. There was no requirement to assign the rights, on an element stating that the rights belong to the company. That element in the contract is contrary to the governing law. If your contract allows it (most do), that element would be severed from the contract. Otherwise, the entire contract would be voided.
the Internet should turn into a penny post, with a levy of 1 cent per letter.
This is quite possibly the worst idea I've ever heard. The vast majority of email system owners out there havn't the ability to assess such a thing, let alone bill for it.
Besides, the legislative portion of the answer is simpler.
The stick: A significant fine for hosting spammers with a DMCA-like safe-harbor clause which allows the service provider hosting the spammer's connection to avoid liability if they cut the spammer promptly upon notification and provide records upon subpoena. This does more than just penalize ISPs who persist in hosting spammers; it gives them the legal escape clause they need from their stupid contracts.
The carrot: a civil penalty of a few dollars per message, collectible by *all* network providers through which the spam travels. The networks near the destination don't receive enough spam from specific individuals to make it worthwhile to sue, but the networks close to the sources do.
In this structure, taking the spammers for all they're worth would simply be good business. That would make it relatively effective at eliminating stateside sources of spam. And you get a measure of control against non-US spam through blocking of spam havens at the network borders compelled by part 1.
That's smart, but smarter would be to classify a WiPOP as an attractive nuisance, just like a swimming pool. Thus classified, the owner of a WiPOP would not only be responsible for securing it, he'd be liable for any damages due to failing to reasonably secure it.
you would think that they would want to cater to their most active customers to keep from losing them.
Businesses want to cater to their most profitable customers, not their most active customers. Netflix's most profitable customers are the ones who rent the fewest movies but still keep their accounts. Bumping them ahead of everybody else is just good business sense.
It aggravates me because I'm an active user, but I understand it. And the reality check is that I'm not going to cancel my account until I run out of available stuff I want to watch, whether its my first choice stuff or not.
It is nice to know that when cancellation time arrives, I can open a new trial account and run through the last remaining movies that got stuck on my old queue.
Next thing you know, folks'll be upset because there are two different software projects named "Flame," two different "Zeus" projects and two different projects named "NoSpam".
Or hey, maybe someone will try to trademark "toolbar" or "olympic." Oh wait, I think that actually happened.
Come on folks. If you want a unique name, pick a name thats unique. If you pick a common, obvious name, expect others to do the same and get over it.
Mod this guy up, 'cause he's got Stallman's FSF pegged.
Free as in beer means you get folks to come to your party by rewarding those who show up. More generically, it means you offer something of value at little or no monetary cost in exchange for the recipient performing some other non-monetary action such as adopting a social agenda. Posing for publicity shots after winning a contest, for example. Or using GPLed code.
Free as in freedom means no external party compels you to do anything. This is the situation you get when using stuff in the public domain.
Don't get me wrong: the free beer approach to software development has great advantages. But don't call it freedom, 'cause its not.
BTW, wasn't the GPL itself always invariant? You could use it or not use it, but you needed the FSF's permission (which was never given) to use a modified copy. That should really have been the first clue that the GPL wasn't about freedom.
Me, for one. They claimed that I didn't didn't put it in the mail in time. You see, the instructions said mail within 15 days, and I waited something like 20...
Western Digital honored a $80 rebate on a hard disk I bought at Micro Center. No trouble.
Cendyne/Verbatim failed to honor a $50 rebate on a DVD writer I bought at Micro Center. I bought it within the listed period and filled everything out, but allegedly I was several days late mailing it.
Slashdot Mirror
It seems to me that this legal challenge puts SCO in somewhat of a box.
Its far nastier than that. The GPL insists that if the entire codebase isn't distributed under the GPL then none of it is. If SCO asserts that the GPL doesn't apply to the code in the kernel version of Linux they shipped is not under the GPL then they distributed the kernel without a valid license to do so. That makes them liable for damages to the thousands of authors who contributed code to the Linux kernel. If anyone ever registered one of the kernels with the copyright office then they're also liable for punitive damages to thousands of plaintiffs.
At this point, SCO's damned if they do and damned if they don't. They screwed up bad.
I want to see the code, because I'm interested in seeing whether there's any truth in the claim.
Exactly. That's why its important to know which portion of the code base is at issue. But more important than learning whether the claim is true is fixing it so that even if its true today it ceases to be true tomorrow. That's why its important to track the exact code at issue back to its source -- something I've zero confidence that SCO has accomplished.
I've nothing against SCO until such time as I can determine for myself whether or not they have a case, or if they are just trying it on.
I vehemently disagree with you there. Regardless of the merits of SCO's case, they're treating the entire Linux community as if we're some sort of villians. Worse, they've gone out of their way to prevent us from halting the very infringement they allege exists. That's horribly wrongheaded, and I hope they rot for it.
In programming parlance, this would mean that you can impliment the same broad concepts as long as you write the new code yourself without any copying.
The devil's in the details here. In theory what you've said is true regardless of whether or not you've seen the other guy's code. In practice, your only certain defense against an allegation of copying is that you havn't seen the other guy's code.
Its civil law, so the standard is preponderance or "greater weight" of the evidence. That means that if he's 51% and you're 49%, you lose.
Once the other guy proves that his code looked that way first the onus shifts to you to prove that your code was an independent creation rather than a copy or derivative. That's all but impossible if you've had access to his code.
He says that there were a lot of the same jokes in the comments. Any particular reason he can't grep the kernel source for those files and find the relevant sections?
First off: this story is a troll. No manager however insane would expect his employees would expect his employees to increase their hours worked by 110% for no additional compensation. You either misunderstood the situation, or made it up.
Second: if you weren't making this up, then in a 6% unemployment market what is wrong with you that you need to ask what to do when an employer tells you that you will work 84 hours a week for the next six months. You say NO, and if they insist then you quit and get a new job. Dope!
News flash: the current unemployemnt rate is not particularly high. From '80 to '95 the unemployment rate ranged from 5.3% to 9.7%. Today we're sitting between 6% and 7%, the lower part of that range. Believe it or not, folks found jobs during those years. You can too.
Could someone who knows the fellow ask him to select a version of Linux and indicate the actual filenames/line numbers where the code is alleged to be "the same?" The question here is "where did the code actually come from." To answer that, its first necessary to know precisely the code at issue.
From there, I would imagine that Linus has extensive records on where particular kernel submissions came from. That leads to affidavits to the effect that the code was an original work, or its replacement with code which in fact is an original work. Either of which solves the problem.
TV without Nielsen ratings would be better too, for similar reason.
We have TV without Nielsen ratings. We call it "PBS."
Is PBS better? Sometimes. Perhaps even often in recent years. Certainly no one has ever referred to PBS' content as mindless drivel, the way we talk about things like Survivor and American Idol.
But let me ask you this: If you could have only one TV station and you had to choose between ABC, CBS, FOX, NBC and PBS would you choose PBS? Didn't think so.
Just like IT guys to reinvent the wheel.
Folks, this is what UNIONS are all about. Don't like how the employer is treating you? Your colleagues feel the same? Form a Union or form a chapter of some larger union (e.g. Communication Workers of America).
A "mass departmental exodus" will get you fired -- whether that's self-desctructive for the company or not. A strike, on the other hand, has lots of law and precedent behind it as long as you follow the time-honored formulas. In some states, companies actually can't fire striking workers!
Perhaps more important, your company's CEO knows what a strike is. He learned about it in school when he earned his MBA, and he knows the formulas he's supposed to use to bargain with a union when one pops up in front of him.
Don't have strong enough convictions about the matter to accept the problems associated with unions? Then shut up get back to work.
Half my coworkers don't know what a PNG is. I try to send them a UML diagram made from DIA and they demand a readable format.
Er... Was that meant to be a subtle joke? Because if it was, its outrageously funny, and if its not it should have been.
Class action anyone?
No no no, you're missing the idea.
Perjury isn't actionable in civil court... Its a bona fide FELONY CRIME. According to 1994 data from the Bureau of Justice, the average jail time for those convicted of perjury is 15.6 years. 1996 data has 87% of perjury cases resulting in conviction.
Those knuckleheads at the RIAA are sending out "good faith belief" notices under penalty of perjury every time their stupid bot sees the filename "michaeljackson.mp3" in your Kazaa directory.
We're talkin' jail, man! Find yourself a friendly prosecutor and you can nail their asses to the wall.
Its still innocent until proven guilty. The change is that if someone is willing to publicly assert (under pentalty of perjury no less) that you are guilty, then you must be willing to publicly assert that you're innocent.
Perhaps that lowers the bar too far for copyright holders to assert legal protections. I don't know and neither do you, but I have been following the matter closely and doing some non-reactionary critical analysis.
You want to fight this, do something smart: Find a friendly prosecuter and take them to court every time the falsely assert infringement. They're being real sloppy in how they determine that something infringes, too sloppy to reasonably sustain a "good faith belief." That's perjury, and perjury is a very serious crime.
As a matter of law, you hold the copyright until such a time as you sign your name to a paper which says "I assign the copyright for such and such to so and so."
0 1
Your contract with the ISP _could_ state that you agree to sign over any copyrights to the software you write upon request. Such a contract is enforcable, and you would be in breach if you refused to sign over the copyright. Breach or not, the copyright would still belong to you. Even if they sue, a court can only award monetary damages per title 17 section 201(e):
(e) Involuntary Transfer.-When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 [bankruptcy].
That is not, however, the contract stated in the example. The example said, "the copyrights [will] belong to the ISP." That's an attempt to preassign ownership of copyrights that do not (yet) exist. You're only allowed to do that on a "work made for hire."
http://www.copyright.gov/title17/92chap1.html#1
A "work made for hire" is-
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
You will note that computer software is not listed. If its not on the list, its not a work made for hire, and any copyrights must be explicitly assigned after the work has been created.
Many a contract has made this mistake, and more than a few companies have found themselves in trouble during the due-diligence phase of an acquisition because of it -- they're faced with tracking down long-gone programmers and convincing them to sign papers assigning the copyrights so that the buyer can have clear title to their software.
by our sheer numbers we redefine what is called right and wrong.
That's the true crux of issue. Morality is defined by those who practice it, and folks have considered casual copying to be reasonable ever since audio and later video recording was invented.
With tools like the DMCA, RIAA is trying to change that. As they represent only the tiniest minority in that viewpoint, they deserve to fail.
That being said, be aware that they're a minority with deep pockets and you're not particularly anonymous on the net. When someone with deep pockets decides to to set an example, they can do a lot of damage.
The third case, "Widget Frosting", sounds completely practical. The premise that hardware makers produce open source software so that the OS development community will work for free to produce better drivers and interface tools for their hardware products. It sounds great on the surface, especially for the company that produces the hardware: they get free drivers and do not have to pay for expensive developers. The OS community wins by getting presumably stable drivers and tools. What is not mentioned is the reason hardware makers usually don?t do this is because they do not want to reveal trade secrets regarding their hardware design. Production of efficient drivers requires an intimate knowledge of the hardware the driver is for. It is almost always the case that it is in the hardware developers? best interest to keep their hardware secrets close to home. This also brings up the question of why isn?t hardware "open"? So much for the frosting case.
And if you buy that, I have a 12 terahertz processor I'd like to sell you.
There are no real secrets in main stream computer hardware, trade or otherwise. Why not? Because the companies patent anything even moderately novel, and the patent process requires full disclosure. Anything else is subject to reverse engineering, which is how some of the OSS drivers are built.
These days, a main stream hardware company that refuses to disclose its interfaces is only doing itself harm. If it actually has something commercially valuable, its rivals will reverse engineer it anyway and whether it does or doesn't holding that information too tightly excludes the group of people most inclined to be first-adopters.
In the US, copyright, trademark and patent law is exclusively federal and thus it applies equally in all 50 states. Contract law is covered almost exclusively by the uniform commercial code, which has been passed in all 50 states and thus applies equally in all 50 states.
The only two jokers in the deck are UCITA, which I believe has only been passed in Virginia and Maryland, and trade secret law which is different in every state.
Outside the US, all bets are off. Some countries have no meaningful intellectual property law at all while others have burdensome structures that make the DMCA look positively consumer friendly. But then, we're talking about Verizon and a DMCA issue, which is strictly US.
prove i traded files with a certain name/ ip?
someone hacked my account. my ip changes every time i login. prove it's really me.
Don't have to. Copyright issues are civil violations, which go by preponderance of the evidence. Once its traced to your account, the burden is on you to prove that you weren't using it and didn't authorize its use this time around.
You're not particularly anonymous on the net either. If I have your IP and I want to know who you are, I can find out. I pay less than $100 to the local courthouse to file a small-claims suit for whatever my imagnination decides you've done against me and suddenly I have the power of discovery. Discovery is cool. Discovery lets me issue a subpoena to your ISP for your identity and everything they know about the IP/date/time when you were logged in. I don't even have to pursue it if I don't want to; I can drop the case once I know who you are and deal with you some other way (e.g. publishing your identity).
It gets more difficult if you've routed yourself where the trail leads through a computer outside the US, but you didn't do that for file swapping, did you? And even if you did, its amazing what a courteous call from Officer Bob can shake loose.
Unlike ordinary "John Doe" subpoenas, the Digital Millennium Copyright Act (DMCA) allows copyright holders to subpoena information without first seeking a judge's blessing, making it an easier and cheaper method for tracking down alleged copyright infringers.
That's not correct. Had Verizon responded by shutting off the offending material, it could not have been compelled to reveal the subscriber's information short of RIAA filing a John Doe suit.
Verizon made a different claim. It said, "I'm just an innocent ISP. Someone else owns and is in posession of those servers." RIAA then quite reasonably said, "Well then you have to tell us how to get in touch with them so that we can serve them the same DMCA notice." Verizon said, "Nuh uh!" and the current legal battle ensued.
Basically, Verizon thought they saw a hole in the law and were trying to take advantage of it. The safe harbor portion of the law says that in order to be protected from copyright infringment claims, Verizon would have to take down any infringing material a customer put on their server at the owner's request, UNLESS the customer wrote a counter letter claiming that the material was non-infringing. If the customer wrote such a letter, Verizon could leave the material up and still not be liable for any infringement, however they would have to pass the letter back to the complainer and the letter was required to include the customer's contact information.
Not explicitly addressed in the law was the understanding that the IP addresses assigned to various companies was a matter of public record, stored at the various IP registries, so a copyright owner could directly determine who owned a particular server.
Verizon went to court and said, "That IP address is delegated to someone else, and just because the IP block delegations to me are published doesn't mean I have to publish who I delegate IP addresses to."
In essence, the court said, "Horse puckey! The IP address registry says that's your IP address. If its not, you have to say whose it is. And you better hurry up before we decide that it was yours after all and you lose your safe harbor protection!"
Yes and no.
If you are an actual employee, paid a salary or paid hourly where they withhold taxes and social security and what not, then any work done within the reasonable scope of your employment is considered work made for hire, thus the copyright vests in the employer rather than in you.
However, in almost every other circumstance, the copyright vests in you and must be explicitly transferred. This means that if you're a consultant, you own the work. Or if you're paid by the job, you own the work. Or if the work isn't reasonably within the scope of your employment, you own the work.
Some examples:
You are a janitor at the local school. While at work, you go into the computer lab and write the next Microsoft Windows. Who owns the work? You do. Although done on your employer's time and facilities, it was not within the scope of your employment. (Note however that the school can fire you and sue for misuse of facilities.)
A local ISP pays you $1000 to write a spam filter. Who owns it? You do. You were not an employee of the ISP.
A local ISP pays you $1000 to write a spam filter. You sign a contract which says, "I agree to write a spam filter and the copyrights belong to the ISP." Who owns it? You do. You can't assign rights to a work that hasn't yet been created.
A local ISP pays you $1000 to write a spam filter. After writing the software you sign a contract which says, "I assign the rights to this software to the ISP." Who owns it? The ISP does. You did first, and then you assigned the rights.
Here's a tricky one:
You work (as an employee) for a company writing accounting software. You sign an employment contract which says, "All software I write while employed by the company belongs to the company." In your spare time you write a spam filter. Who owns it? You do. A court would find that the actual fact was that accounting software was the scope of your employment. The only software that's work made for hire (whose copyrights vest in the employer) is the software written within the scope of your employment. And, as previously mentioned, you can't assign copyrights for something you havn't written yet.
What if you wrote the next Lotus 123? Then the company would own it. A spreadsheet is reasonably accounting software which was within your actual scope of employment.
Here's a trickier one:
You work (as an employee) for a company writing accounting software. You sign an employment contract which says, "I will assign rights to the company to all software I write while employed." In your spare time you write a spam filter. Who owns it? You do. That's right, you do. BUT, you have a valid contract with your company which compells you to write a document which says, "I assign the rights to this software to the company." If you fail to do so, you are in breach of contract.
What about when the contract said, "All software I write while employed by the company belongs to the company?" Are you in breach of contract if you don't assign the rights? You are not. There was no requirement to assign the rights, on an element stating that the rights belong to the company. That element in the contract is contrary to the governing law. If your contract allows it (most do), that element would be severed from the contract. Otherwise, the entire contract would be voided.
the Internet should turn into a penny post, with a levy of 1 cent per letter.
This is quite possibly the worst idea I've ever heard. The vast majority of email system owners out there havn't the ability to assess such a thing, let alone bill for it.
Besides, the legislative portion of the answer is simpler.
The stick: A significant fine for hosting spammers with a DMCA-like safe-harbor clause which allows the service provider hosting the spammer's connection to avoid liability if they cut the spammer promptly upon notification and provide records upon subpoena. This does more than just penalize ISPs who persist in hosting spammers; it gives them the legal escape clause they need from their stupid contracts.
The carrot: a civil penalty of a few dollars per message, collectible by *all* network providers through which the spam travels. The networks near the destination don't receive enough spam from specific individuals to make it worthwhile to sue, but the networks close to the sources do.
In this structure, taking the spammers for all they're worth would simply be good business. That would make it relatively effective at eliminating stateside sources of spam. And you get a measure of control against non-US spam through blocking of spam havens at the network borders compelled by part 1.
That's smart, but smarter would be to classify a WiPOP as an attractive nuisance, just like a swimming pool. Thus classified, the owner of a WiPOP would not only be responsible for securing it, he'd be liable for any damages due to failing to reasonably secure it.
you would think that they would want to cater to their most active customers to keep from losing them.
Businesses want to cater to their most profitable customers, not their most active customers. Netflix's most profitable customers are the ones who rent the fewest movies but still keep their accounts. Bumping them ahead of everybody else is just good business sense.
It aggravates me because I'm an active user, but I understand it. And the reality check is that I'm not going to cancel my account until I run out of available stuff I want to watch, whether its my first choice stuff or not.
It is nice to know that when cancellation time arrives, I can open a new trial account and run through the last remaining movies that got stuck on my old queue.
Next thing you know, folks'll be upset because there are two different software projects named "Flame," two different "Zeus" projects and two different projects named "NoSpam".
Or hey, maybe someone will try to trademark "toolbar" or "olympic." Oh wait, I think that actually happened.
Come on folks. If you want a unique name, pick a name thats unique. If you pick a common, obvious name, expect others to do the same and get over it.
Mod this guy up, 'cause he's got Stallman's FSF pegged.
Free as in beer means you get folks to come to your party by rewarding those who show up. More generically, it means you offer something of value at little or no monetary cost in exchange for the recipient performing some other non-monetary action such as adopting a social agenda. Posing for publicity shots after winning a contest, for example. Or using GPLed code.
Free as in freedom means no external party compels you to do anything. This is the situation you get when using stuff in the public domain.
Don't get me wrong: the free beer approach to software development has great advantages. But don't call it freedom, 'cause its not.
BTW, wasn't the GPL itself always invariant? You could use it or not use it, but you needed the FSF's permission (which was never given) to use a modified copy. That should really have been the first clue that the GPL wasn't about freedom.
Me, for one. They claimed that I didn't didn't put it in the mail in time. You see, the instructions said mail within 15 days, and I waited something like 20...
I'll never buy Cendyne again.
Western Digital honored a $80 rebate on a hard disk I bought at Micro Center. No trouble.
Cendyne/Verbatim failed to honor a $50 rebate on a DVD writer I bought at Micro Center. I bought it within the listed period and filled everything out, but allegedly I was several days late mailing it.
I'll never buy Cendyne again.