The language in the jury instructions was from court decisions involving the 1st amendment. Probably quoted from the Pentagon Papers case.
Once the defense asked for the instruction, the judge probably had no choice but to allow it. I don't think it's all that surprising that the a jury member was not familiar with the language. But I'm favorably impressed that the jury took the language seriously when they deliberated.
In fact the 1st amendment was originally interpreted so that the government could outlaw speech that impeded the war. Perhaps you don't remember the Anti Sedition Act or didn't study it in American history.
Telling people isn't proscribed by the DMCA. What's covered is making, using, trafficing, etc. The DMCA does not contain prohibtions against describing circumvention technology. Now if you claim to be describing a method by providing computer source code, you'll be crossing into something courts have found to be illegal.
Microsoft claims that the policy is outdated and erroneously lifted from someplace else.
The problem with that excuse is that I can't imagine any situation where Microsoft would have a legitimate need to help themselves to a right to exploit a patent free of charge. I can imagine legitimate needs to copy and reproduce trademarks, copyrighted information, or even trade secrets if they were uploaded in order to run an internet service, but there is simply no non-slimy reason for ripping off the right to license someone's patents.
Even for the things that they might have a legitimate need to reproduce, the policy gives MS a lot more rights than they legitimately need. Exploiting someone else's trade or service mark for financial gain without compensation? Isn't that just theft?
The second problem I have with MS response is the amount of finger pointing and blaming. Shouldn't we expect the same kind of behavior if they were to violate their privacy policy. How can you trust someone who takes so little responsibility for errors.
"This might explain a lot. The site has been taken out, so I can't read the details, but I kept wondering why this case wasn't taken on contingency if it was so great. If you have a really good case, you can often get a lawyer who will take the chance for a chunk of the proceeds."
Unfortunately the weak part of the case was that the amount of damages was difficult to prove. Without proceeds to take a chunk out of, you just aren't going to get a lawyer to take the case on a contigency basis.
The lesson you were supposed to get out of this was to register your copyright so that you can at least be eligible for statutory damages. If you are pursuing someone who's infringing your free software, statutory damages might be the only ones you can prove.
"That leaves only two other possible areas of infringement: Patent infringement, and trademark infringement. Assuming they have not patented this language, you are OK there. I don't even know if it's possible to patent a language (given some other nutty patents I've seen, I'm sure it is), but as long as you didn't see their source code you'd still be in the clear probably."
If it is possible to patent a language or a language feature, the fact that you didn't see their source code is not going to keep you from being an infringer if you re-implement the language. Unlike copyright protection, you infringe a patent even if you reimplement the feature from scratch.
It's highly unlikely that the language is protected by a patent. I'll bet that the language uses pretty much the same kind of control constructs, statements, etc that were used back in the 70s and 80s.
"If a machine takes speech (or even textual English for instance) as input then processes that data, the machine isn't running object code derived from human language... it's data processing, based on some other code the machine happens to be running."
So when a computer running a BASIC interpreter takes the text of a basic program and executes each instruction, the machine isn't running a BASIC program, but merely data processing? I think you've made a rigid distinction between data and code when the truth is that there is a continuum of points in between those concepts.
Of course that point was made fairly completely in the amicus brief.
Michaelangelo
"From this point of view the validty of a patent, and whatever tests it must meet, are *solely* determined by the jury, who, by law, are required* not to have any expert knowledge in the field."
What law requires juries not to have or use expert knowledge. I imagine that one side or the other will probably do their best to get any experts off of the panel, but there is no requirement that an expert be prohibited from serving on a jury.
They can't get a warrant, but what they can get is every bit as invasive as that. What they will do is present evidence to a federal district court judge at an ex parte hearing (meaning you won't be there) that suggests that there is evidence of copyright infringement on the premises and that if you are forewarned, you will be able to remove said evidence. The basis for the request might well be affidavits from disgruntled ex employees. If they are successful, the BSA will be given a court order which allows them to enter your place, accompanied by either US Marshalls or the local constabulatory, and to sieze computers, disks, etc. that might hold evidence of infringement, but which will definitely shut your business down and publically embarrass the company. Faced with a choice of having those things happen, your boss will probably elect to have them in to search without going through those steps.
---------quote--------
Hardware drivers are the *perfect* candidates for GPL'd software... my UMAX scanner was made OBSOLETE under Windows 2000 because UMAX chose not to write Win2K drivers, suggesting instead I buy a new scanner from them...
----------end quote ----------------
The Cue Cat response to your point would be that making your scanner work under Linux interferes with a company's right to making money by forcing you to upgrade. How dare you break their business model!!
------
They are defending their right not to have their intellectual Property reverse engineered and openly distributed.
-----
Sure they are. Unfortunately, there is no such right if the IP protection is protected by trade secret or copyright rather than by a patent. Trade secret protection is governed by state law. Here is an excerpt from the North Carolina statute. I'll bet your state's laws aren't much different.
(1) "Misappropriation" means acquisition, disclosure, or use of a trade secret of another without express or implied authority or consent, unless such trade secret was arrived at by independent development, reverse engineering, or was obtained from another person with a right to disclose the trade secret.
Elsewhere in the NC statute is wording that makes reverse engineering an affirmative defense against trade secret misappropriation.
If the CueCut dudes filed a claim in court claiming that their trade secrets were reverse engineered, it would be a simple matter to get such a claim dismissed.
States are pre-empted from passing laws which give patent like protection of IP. If you want patent protection you have to get a patent. Otherwise if you sell a product, people get to take it apart and see how it works.
----
This case is frequently brought up in cases like the DeCSS case, where nonspeech elements are important considerations and in the early commercial speech cases. This is the reason why
flipping over someone's car because you were "expressing" your happiness that the Bulls won the
championship game is still illegal.
----
True. But what are the non speech elements associated with distributing a text file? There simply aren't any conduct elements comparable with burning a govenment owned draft card or flipping a car (sigh). The case is far more similar to speech cases like the CDA where even a strong government interest in keeping porn away from youngsters could not justify a law which whose restrictions on indecent material were far milder than the judges order.
The judge cited cases because he had nothing else to work with, but there have been other cases involving things like schools attempting to ban messages on t-shirts, and appellate court rulings where the government was unsuccessful in stopping the posting of cryptographic source code that are by far more similar to the present case. I didn't see the judge spending any time distinguishing this case from those. I don't believe he could credibly do so.
But before we hang the judge out to dry, it's important to realize how limited his ruling really is. It is an injunction aimed at a specific organization (and those working in concert with them). Such injunctions can and do contain bans on things that are not necessarily illegal, but that are designed to keep the injoined party from doing illegal things.
The MPAA is presenting the judge's preliminary injunction on 2600 as a more general restriction on everyone else. My ISP is Time Warner. I have no illusions about what they'll do if they get one of those threatening letters.
-- start quoted text IIRC, the book was Applied Cryptography, and could be exported as long as it didn't include the floppies with the source in it. The export regs said that the encryption algorithm was only a munition if it was in "machine-readable" form. So people overseas just bought the book without the floppies and typed in the source code themselves.
So if I am not mistaken, the issue actually had to do with the language of the export regulations and therefore wouldn't apply here.
-- end quoted text
Well that's slightly off because the issue was that the author wanted to export source code in machine readable form but the export regulations prohibited this while allowing export of the same code printed in a book (presumably to avoid first amendment problems). One of the author's arguments was that the source code was speech regardless of whether it was in a books or on a floppy. The government could then only ban speech on a floppy with the same justification as would be used to ban speech in books.
The issue has come up in two similar cases in different circuits (6th and 9th). Both appellate courts have concluded that source code is speech despite attempts by the government to argue the contrary.
I am encouraged by your silence on this issue. It lets me know that you are listening to your lawyers. This is an important issue and as a law student I have been distressed by comments made by others on the front lines that clearly endanger their legal position. This issue is important to all of us, and I would hate to see it decided in ways that affect all of us by having the front line person blow it. I'll support you in any way I can
Slashdot Mirror
The language in the jury instructions was from court decisions involving the 1st amendment. Probably quoted from the Pentagon Papers case.
Once the defense asked for the instruction, the judge probably had no choice but to allow it. I don't think it's all that surprising that the a jury member was not familiar with the language. But I'm favorably impressed that the jury took the language seriously when they deliberated.
In fact the 1st amendment was originally interpreted so that the government could outlaw speech that impeded the war. Perhaps you don't remember the Anti Sedition Act or didn't study it in American history.
Telling people isn't proscribed by the DMCA. What's covered is making, using, trafficing, etc. The DMCA does not contain prohibtions against describing circumvention technology. Now if you claim to be describing a method by providing computer source code, you'll be crossing into something courts have found to be illegal.
Microsoft claims that the policy is outdated and erroneously lifted from someplace else.
The problem with that excuse is that I can't imagine any situation where Microsoft would have a legitimate need to help themselves to a right to exploit a patent free of charge. I can imagine legitimate needs to copy and reproduce trademarks, copyrighted information, or even trade secrets if they were uploaded in order to run an internet service, but there is simply no non-slimy reason for ripping off the right to license someone's patents.
Even for the things that they might have a legitimate need to reproduce, the policy gives MS a lot more rights than they legitimately need. Exploiting someone else's trade or service mark for financial gain without compensation? Isn't that just theft?
The second problem I have with MS response is the amount of finger pointing and blaming. Shouldn't we expect the same kind of behavior if they were to violate their privacy policy. How can you trust someone who takes so little responsibility for errors.
"This might explain a lot. The site has been taken out, so I can't read the details, but I kept wondering why this case wasn't taken on contingency if it was so great. If you have a really good case, you can often get a lawyer who will take the chance for a chunk of the proceeds."
Unfortunately the weak part of the case was that the amount of damages was difficult to prove. Without proceeds to take a chunk out of, you just aren't going to get a lawyer to take the case on a contigency basis.
The lesson you were supposed to get out of this was to register your copyright so that you can at least be eligible for statutory damages. If you are pursuing someone who's infringing your free software, statutory damages might be the only ones you can prove.
"That leaves only two other possible areas of infringement: Patent infringement, and trademark infringement. Assuming they have not patented this language, you are OK there. I don't even know if it's possible to patent a language (given some other nutty patents I've seen, I'm sure it is), but as long as you didn't see their source code you'd still be in the clear probably."
If it is possible to patent a language or a language feature, the fact that you didn't see their source code is not going to keep you from being an infringer if you re-implement the language. Unlike copyright protection, you infringe a patent even if you reimplement the feature from scratch.
It's highly unlikely that the language is protected by a patent. I'll bet that the language uses pretty much the same kind of control constructs, statements, etc that were used back in the 70s and 80s.
Michaelangelo
"If a machine takes speech (or even textual English for instance) as input then processes that data, the machine isn't running object code derived from human language... it's data processing, based on some other code the machine happens to be running."
So when a computer running a BASIC interpreter takes the text of a basic program and executes each instruction, the machine isn't running a BASIC program, but merely data processing? I think you've made a rigid distinction between data and code when the truth is that there is a continuum of points in between those concepts.
Of course that point was made fairly completely in the amicus brief.
Michaelangelo
"From this point of view the validty of a patent, and whatever tests it must meet, are *solely* determined by the jury, who, by law, are required* not to have any expert knowledge in the field."
What law requires juries not to have or use expert knowledge. I imagine that one side or the other will probably do their best to get any experts off of the panel, but there is no requirement that an expert be prohibited from serving on a jury.
Isaac
They can't get a warrant, but what they can get is every bit as invasive as that. What they will do is present evidence to a federal district court judge at an ex parte hearing (meaning you won't be there) that suggests that there is evidence of copyright infringement on the premises and that if you are forewarned, you will be able to remove said evidence. The basis for the request might well be affidavits from disgruntled ex employees. If they are successful, the BSA will be given a court order which allows them to enter your place, accompanied by either US Marshalls or the local constabulatory, and to sieze computers, disks, etc. that might hold evidence of infringement, but which will definitely shut your business down and publically embarrass the company. Faced with a choice of having those things happen, your boss will probably elect to have them in to search without going through those steps.
Isaac
---------quote--------
Hardware drivers are the *perfect* candidates for GPL'd software... my UMAX scanner was made OBSOLETE under Windows 2000 because UMAX chose not to write Win2K drivers, suggesting instead I buy a new scanner from them...
----------end quote ----------------
The Cue Cat response to your point would be that making your scanner work under Linux interferes with a company's right to making money by forcing you to upgrade. How dare you break their business model!!
Michaelangelo
------
They are defending their right not to have their intellectual Property reverse engineered and openly distributed.
-----
Sure they are. Unfortunately, there is no such right if the IP protection is protected by trade secret or copyright rather than by a patent. Trade secret protection is governed by state law. Here is an excerpt from the North Carolina statute. I'll bet your state's laws aren't much different.
(1) "Misappropriation" means acquisition, disclosure, or use of a trade secret of another without express or implied authority or consent, unless such trade secret was arrived at by independent development, reverse engineering, or was obtained from another person with a right to disclose the trade secret.
Elsewhere in the NC statute is wording that makes reverse engineering an affirmative defense against trade secret misappropriation.
If the CueCut dudes filed a claim in court claiming that their trade secrets were reverse engineered, it would be a simple matter to get such a claim dismissed.
States are pre-empted from passing laws which give patent like protection of IP. If you want patent protection you have to get a patent. Otherwise if you sell a product, people get to take it apart and see how it works.
Michaelangelo
----
This case is frequently brought up in cases like the DeCSS case, where nonspeech elements are important considerations and in the early commercial speech cases. This is the reason why
flipping over someone's car because you were "expressing" your happiness that the Bulls won the
championship game is still illegal.
----
True. But what are the non speech elements associated with distributing a text file? There simply aren't any conduct elements comparable with burning a govenment owned draft card or flipping a car (sigh). The case is far more similar to speech cases like the CDA where even a strong government interest in keeping porn away from youngsters could not justify a law which whose restrictions on indecent material were far milder than the judges order.
The judge cited cases because he had nothing else to work with, but there have been other cases involving things like schools attempting to ban messages on t-shirts, and appellate court rulings where the government was unsuccessful in stopping the posting of cryptographic source code that are by far more similar to the present case. I didn't see the judge spending any time distinguishing this case from those. I don't believe he could credibly do so.
But before we hang the judge out to dry, it's important to realize how limited his ruling really is. It is an injunction aimed at a specific organization (and those working in concert with them). Such injunctions can and do contain bans on things that are not necessarily illegal, but that are designed to keep the injoined party from doing illegal things.
The MPAA is presenting the judge's preliminary injunction on 2600 as a more general restriction on everyone else. My ISP is Time Warner. I have no illusions about what they'll do if they get one of those threatening letters.
-- start quoted text
IIRC, the book was Applied Cryptography, and could be exported as long as it didn't include the floppies with the source in it. The export regs said that the encryption algorithm was only a munition if it was in "machine-readable" form. So people overseas just bought the book without the floppies and typed in the source code themselves.
So if I am not mistaken, the issue actually had to do with the language of the export regulations and
therefore wouldn't apply here.
-- end quoted text
Well that's slightly off because the issue was that the author wanted to export source code in machine readable form but the export regulations prohibited this while allowing export of the same code printed in a book (presumably to avoid first amendment problems). One of the author's arguments was that the source code was speech regardless of whether it was in a books or on a floppy. The government could then only ban speech on a floppy with the same justification as would be used to ban speech in books.
The issue has come up in two similar cases in different circuits (6th and 9th). Both appellate courts have concluded that source code is speech despite attempts by the government to argue the contrary.
I would think these cases would be relevant.
I am encouraged by your silence on this issue. It lets me know that you are listening to your lawyers. This is an important issue and as a law student I have been distressed by comments made by others on the front lines that clearly endanger their legal position.
This issue is important to all of us, and I would hate to see it decided in ways that affect all of us by having the front line person blow it. I'll support you in any way I can