Bruce-
I agree that the problem is software patents in general. But the sad likelihood is that software patents aren't likely to go anywhere anytime soon. And a "safe harbor" is going to be fought tooth and nail because open source software is perceived to be every bit as much a threat to patent holders (wishing to use patents for offensive reasons) as commercial software. Both unlicensed free/open source and commercial software destroys potential revenue streams to patent holders.
But perhaps if the W3C were to take a stand and say that patent-enforced technologies could not be stamped with the imprimatur of W3C approval, they would simply be passed over for another solution. There are very few "technologies" in the web world for which alternatives cannot be deployed. The reason W3C accepts patented technologies is because their promoters have to most to gain from promoting patented solutions, and there are often no better solutions being promoted with the same vigor out there (this is not true in all cases, of course).
Your call to get the free software world involved is spot on, however, because if the free software & open source world can suggest technologies/standards free of patent (and perhaps get into the business of filing defensive patents), then the need to consider patent-encumbered standards and technologies goes away (see PNG!).
Law journals are most certainly peer reviewed (well, reviewed by law students who tend to know the law as well as practicing attorneys and many law professors). The Georgetown article was really an abberation and the product of a broken process, and NOT typical of most law journal publications.
If you want a clear evidence that this judge simply doesn't understand the law, even the DMCA, read footnote 14:
"even if DeCSS wereintended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key'' would "circumvent a technological measure'' that effectively controls access to a copyrighted work and violate the statute in any case."
The DMCA, however states: 1201(c)(1) - Nothing in this section effect rights, remedies, limitations or defenses to copyright infringment, INCLUDING FAIR USE, under this title.
The judge in this case never considers the fact that being able to *play* on Linux would very possible be considered a "fair use".
Fair Use is the public's balance against the bundle of rights given to copyright holders. Deny the existence of fair use and you violate the Constitution's prescription of grants of *limited* rights to intellectual property holders.
This judge really doesn't get it and its clear the guy has been bought (not literally, but metaphorically) by the big IP holders like the music and movie industries.
The problem is that a court record can be sealed or edited by a judge, especially when the judge sees the purpose of the inclusion of the source code.
If the source code were included in the congressional record, however (and it quite easily could, btw, by a friendly congress person or senator), then the courts would have no power to strike it there (thanks to the separation of powers doctrine). I'm not sure what the rules are in each house of congress, but I believe that it would be an significant event to prevent a congressperson's entries from being entered into the official record.
The nice thing about this is that the congressional record is much easier to search and retrieve on the Internet than most District Court proceedings.
I never said that UChicago was monolithic in its points of view (I went to UC Berkeley's Boalt Hall school of law and there was certainly no homogeny of viewpoints there).
I never said Posner would automatically favor Microsoft. I said it was disturbing that of all the people in the world to be a mediator, Posner is a disturbing choice because of he and the Chicago school's point of view on Antitrust and government intervention in markets.
Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.
This is a really really disturbing turn of events.. I'm glad Posner is just a mediator.
<memory type="corny> I was in undergrad and this new thing called the World Wide Web (back when we didn't just call it the "web") was just being rolled out and we used this nifty program called Mosaic (which, ahem, only ran on unix, IIRC). Our information retrieval class was asked to be the first beta testers of this brand new resource at http://www.eb.com -- and now its come full circle to be free!!!
Monolithic View of Lawyers is Childish
on
Linux and Lawyers
·
· Score: 2
OK, lawyer jokes are funny. And there is almost always a kernel of truth in them.
But to lump lawyers together like some sort of homogenous group of narrow-minded, blindered technophobes is counter-productive, childish, and reflects poorly upon the OS movement.
There are many members of the legal community (myself included) who have worked on OSS (I don't practice law, thank you). If you take the time to look, you will find a large number of thoughtful, aware, and intelligent lawyers and other legal professionals who really do understand what Linux and open source software is all about.
Open your eyes a little, you may be surprised what you see.
Hey folks, if you want to see where things might go, check out Prof. Froomkin's comments. They are rather dense and very long, but if you want to know where the battle lines are drawn, check it out.
Its also important to realize that this is a "recommendation" to be handed to ICANN.
Its hard to tell from this article, but it appears that lyrics.ch has "gone commercial" and is probably going to pay NMPA (the parent org. of Harry Fox Agency) a percentage of advertising or some other revenue stream.
OLGA, from the words of the guy who started it, will never be commercial. My understanding is that he'd rather it shut down than "go commercial".
The bigger issue here is commercial v. community-based. Its very similar to the "open source" v. proprietary debates people have with the exception that there are more pernicious IP issues involved in the OLGA/Lyrics.ch issues.
I've had enough of people confusing trademark and copyright and other forms of intellectual property when posting on Slashdot.
The resources are out there to learn the difference. It would make your arguments more persuasive if you would at least argue about the right legal rules governing the issues at hand.
Fortunately, there are many attorneys who know a lot about the subject who feel as pissed about trademark abuse and are actually doing something about it. Lets all hope they are successful -- the Slashdot community should help where possible!
Slashdot Mirror
Bruce-
I agree that the problem is software patents in general. But the sad likelihood is that software patents aren't likely to go anywhere anytime soon. And a "safe harbor" is going to be fought tooth and nail because open source software is perceived to be every bit as much a threat to patent holders (wishing to use patents for offensive reasons) as commercial software. Both unlicensed free/open source and commercial software destroys potential revenue streams to patent holders.
But perhaps if the W3C were to take a stand and say that patent-enforced technologies could not be stamped with the imprimatur of W3C approval, they would simply be passed over for another solution. There are very few "technologies" in the web world for which alternatives cannot be deployed. The reason W3C accepts patented technologies is because their promoters have to most to gain from promoting patented solutions, and there are often no better solutions being promoted with the same vigor out there (this is not true in all cases, of course).
Your call to get the free software world involved is spot on, however, because if the free software & open source world can suggest technologies/standards free of patent (and perhaps get into the business of filing defensive patents), then the need to consider patent-encumbered standards and technologies goes away (see PNG!).
-Gabe
Don't know if its related, but do a whois on
microsoft.com
netscape.com
aol.com
timewarner.com
yahoo.com
Law journals are most certainly peer reviewed (well, reviewed by law students who tend to know the law as well as practicing attorneys and many law professors). The Georgetown article was really an abberation and the product of a broken process, and NOT typical of most law journal publications.
If you want a clear evidence that this judge simply doesn't understand the law, even the DMCA, read footnote 14:
"even if DeCSS wereintended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key'' would "circumvent a technological measure'' that effectively controls access to a copyrighted work and violate the statute in any case."
The DMCA, however states:
1201(c)(1) - Nothing in this section effect rights, remedies, limitations or defenses to copyright infringment, INCLUDING FAIR USE, under this title.
The judge in this case never considers the fact that being able to *play* on Linux would very possible be considered a "fair use".
Fair Use is the public's balance against the bundle of rights given to copyright holders. Deny the existence of fair use and you violate the Constitution's prescription of grants of *limited* rights to intellectual property holders.
This judge really doesn't get it and its clear the guy has been bought (not literally, but metaphorically) by the big IP holders like the music and movie industries.
What a tool!
The problem is that a court record can be sealed or edited by a judge, especially when the judge sees the purpose of the inclusion of the source code.
If the source code were included in the congressional record, however (and it quite easily could, btw, by a friendly congress person or senator), then the courts would have no power to strike it there (thanks to the separation of powers doctrine). I'm not sure what the rules are in each house of congress, but I believe that it would be an significant event to prevent a congressperson's entries from being entered into the official record.
The nice thing about this is that the congressional record is much easier to search and retrieve on the Internet than most District Court proceedings.
Wow, its amazing how words can be twisted.
I never said that UChicago was monolithic in its points of view (I went to UC Berkeley's Boalt Hall school of law and there was certainly no homogeny of viewpoints there).
I never said Posner would automatically favor Microsoft. I said it was disturbing that of all the people in the world to be a mediator, Posner is a disturbing choice because of he and the Chicago school's point of view on Antitrust and government intervention in markets.
And I never said he was stupid.
Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.
This is a really really disturbing turn of events.. I'm glad Posner is just a mediator.
I remember when...
<memory type="corny>
I was in undergrad and this new thing called the World Wide Web (back when we didn't just call it the "web") was just being rolled out and we used this nifty program called Mosaic (which, ahem, only ran on unix, IIRC). Our information retrieval class was asked to be the first beta testers of this brand new resource at http://www.eb.com -- and now its come full circle to be free!!!
Awesome!
</memory>
Please see www.censorware.org
There are some legal and political challenges being mounted to the proliferation of 'censorware'.
Ironically, this site is blocked by some censorware itself, so you may want to try:
208.249.126.162
-or-
3506011810
OK, lawyer jokes are funny. And there is almost always a kernel of truth in them.
But to lump lawyers together like some sort of homogenous group of narrow-minded, blindered technophobes is counter-productive, childish, and reflects poorly upon the OS movement.
There are many members of the legal community (myself included) who have worked on OSS (I don't practice law, thank you). If you take the time to look, you will find a large number of thoughtful, aware, and intelligent lawyers and other legal professionals who really do understand what Linux and open source software is all about.
Open your eyes a little, you may be surprised what you see.
-Gabe
Its also important to realize that this is a "recommendation" to be handed to ICANN.
ICANN has commissioned a report from the Berkman Center for Internet and Society (at Harvard) on representation in cyberspace. There are various ways to comment --- its important that everyone at least takes a look!
Its hard to tell from this article, but it appears that lyrics.ch has "gone commercial" and is probably going to pay NMPA (the parent org. of Harry Fox Agency) a percentage of advertising or some other revenue stream.
OLGA, from the words of the guy who started it, will never be commercial. My understanding is that he'd rather it shut down than "go commercial".
The bigger issue here is commercial v. community-based. Its very similar to the "open source" v. proprietary debates people have with the exception that there are more pernicious IP issues involved in the OLGA/Lyrics.ch issues.
The resources are out there to learn the difference. It would make your arguments more persuasive if you would at least argue about the right legal rules governing the issues at hand.
In particular, see:
Findlaw's Trademark Page
Nolo Press's Trademark Page
Fortunately, there are many attorneys who know a lot about the subject who feel as pissed about trademark abuse and are actually doing something about it. Lets all hope they are successful -- the Slashdot community should help where possible!