The general rule is that the employer is liable for the actions of its employees, and even for intentional torts of its employees when said employee is acting within the scope of his employement.
In this case, if the AOL employee was, say, a tech support person or something cruising the chatrooms during his breaks or after hours, then it is unlikely that AOL would be on the hook for his intentional conduct. However, this guy's JOB was to cruise chatrooms -- is more likely that a court would find that his behavior, even though intentional, illegal and not within company policies, to be behavior "within the scope of his emplyment" and therefore AOL will likely be on the hook. So will the guy -- but AOL will end up paying up, and will have to go after the guy for reimbursement, if he has anything.
This is standard agency stuff -- employers carry a lot of responsibility for the actions of their employees. As another poster noted, the reason for this policy is to keep a company from intentionally hiring pervs to cruise chatrooms, or hiring drunks to lead AA meetingds, or whatever -- if you are hiring someone, you have to make sure that they are not a bad seed for the job, and you have to keep your eye on them to make sure they don't change...
in the UK, theres the "loser pays legal fees" thing, which also helps to discourage the frivilous lawsuit from even being filed in the first place. Is there no such system in the US for this?
No, we don't have "loser pays" in the U.S. Someone who prevails in a lawsuit can sometimes have their legal fees paid by the loser, but usually that requires some seriously fraudulent (not simply bad, but highly illegal) activity on the part of the loser -- also, some specific statutes provide for essentially "loser pays," and such a clause can always be part of a contract neogitation. But there is no general concept of "loser pays" in the U.S.
OFF TOPIC: The general reasoning behind this is that there is a belief that if someone has to pay if they lose, they will be unlikely to bring even a righteous lawsuit, because, lets face it, you never know what it going to happen in court. If you are judgment proof, then that might not be a big deal. But if you are solid middle-class citizens, maybe have a house or some other assets built up, you may think twice about suing Mr. Big Business, even if you have a really strong case, because the of the downside risk -- potentially losing your house and other assets, etc. Even if you had only a 2% chance of losing, many people would choose not to sue rather than take a 2% chance of being financially ruined.
So, the feeling is, in order to allow free access to the courts for people of modest means, we have to put up with a certain amount of BS. The U.S. court system has developed procedures for summary judgments and motions to dismiss that hopefully will clear out the most serious abusers of the system before they get too far along in the system. It's a trade-off, and one you might not agree with, but that's the usual policy argument you see for why we don't switch to a loser-pays system.
Im not making judgments about the two systems but dont pretend that "Roman" law is worse than the US system. At least with Roman law you can know what a law actually is!!!!
Not disagreeing -- but just to be precise, the two law systems are the civil law system and the common law system. Civil law jurisdictions, which are most countries in the world (and the state of Louisiana in the U.S.) rely on codes, whereas the common law jurisdictions rely on caselaw -- but it's not that cut and dried, because even in Civil law systems you have precedents (because you can't write laws that deal with everything up front -- sometimes you get caught with your pants down, and need to draft something on the fly), and all common law systems have statutes as well (and Louisiana uses Civil law for its state law, but is still bound to follow Federal common law, so it's a real hybrid!).
Civil law systems tend to be somewhat more predictable and easier to understand, but common law systems tend to be more adaptable and flexible. Both have advantages and disadvantages, which is why virtually all jurisdictions in the world have some elements of the other system.
I'm pretty sure there are federal laws that apply to everyone saying that you can't disclose people's nonpublic personal information. If you read those privacy letters the bank sends you when they change their TOS, they usually elude to the difference between public information and nonpublic information, I doubt they do this of their own free will.
But someone's name, address, phone number, email address, username on a website, IP address, none of these would qualify under any state or federal law as "nonpublic information" -- this is all public record stuff. What they mean by "nonpublic information" is information that could be used for identity theft -- your name, combined with a date of birth, social security number, driver's license number, bank account numbers, those sorts of things. Look up some state identity theft statutes on findlaw or something and see what states consider "public information" and "nonpublic information."
Hell, even the college you went to and dates of attendance are "public information" in most states.
So basically Comcast has decided to treat its customers as guilty until proven innocent when it comes to compyright infringement.
This is a requirement under the DMCA -- the ISP's HAVE to do this, or they lose their "safe harbor" and may themselves be sued for contributory and/or vicarious copyright infringement. As long as they follow these rules, they don't have to be worry about being sued for infringement themselves.
See 17 USC 512(c) for all of the gory details. 17 USC 512
Since when, in the United States, do traditional journalists have MORE freedom of speech than ordinary citizens? IANAL, but methinks the Australians might have a misunderstanding as to what freedom of speech for Americans means.
I believe the confusion stems from the fact that certain states, and maybe the federal statutes, provide a "journalist's privilege" which allows a journalist to avoid testifying as to the source of a story in court. This privilege is like other privileges, such as attorney-client privilege and doctor-patient privilege, in that it doesn't give anyone any more "freedom of speech," but it does allow people who can take advantage of the privilege to avoid speaking in court.
There's a few cases recently where "bloggers" have tried to assert these journalist privileges to avoid revealing a source, and this has brought up the question as to just what is a journalist, and should they have a privilege to begin with.
That's probably where the confusion comes in. It's not that journalists have a greater right to free speech that bloggers would also like to have -- as you correctly point out, a journalist has the same right to free speech as anyone esle does, and no more -- but they do have this privilege (in those states that provide for one, not all do) to avoid having to reveal their sources. So journalists are afraid that if a blogger becomes a journalist, then the privilege will end up getting "watered down" and will eventually wind up not being useful, or wind up being repealed if it gets overused.
Probably nobody. I think I only included that because I had just got done reading something that talked about how one thing Apples weren't good at was backwards compatibility. I guess that's what I get for throwing things in at the last intue without thinking them through...
Actually, the government stepped in to destroy DAT. DAT recorders are mandated to make poor copies, whereas audio CDs can be copied perfectly indefinately.
Agreed, that plus the extra "you are going to violate someone's copyright with this technology eventually, so we're gonna add a buck to each blank tape you buy to pay for it" fee.
Are people sure they want these guys to step in and decide all of the standards out there? I mean, more than they do already?
But another way to look at this is to say the market was cheap-ass and bought the cheaper crappier technology and set a quality standard that was low that the rest of us future generations had to live with. THat is, if people had been willing to pay a bit more everyine could have enjoyed a better standard.
But the VHS/Betamax situation just isn't that simple. It wasn't like VHS was $10 cheaper than Betamax, and everyone was just "cheap-ass" -- the price points were the difference between "I can afford to buy this one" and "this one is right out." If the Betamax, which was better is vitually every respect but price, had been more expensive, but not unreasonably more expensive, then it is likely that it would have been the winner, or maybe we would have two formats -- of course, then there would be all of these interoperability complaints about videocassettes...
but the point is that if you let the market decide it can be a race to the bottom as idiot consumers manage to set the standard at whatever is acceptably cheapest.
Yes, that's what happened in the VHS v. Betamax wars -- but it didn't have to be that way. Had Betamaz been "acceptably" more expensive, it probably would have survived and thrived due to high quality. Consumers aren't always looking for just the cheapest possible -- if that were the case, we would all be driving Kias or something -- people will pay a premium for quality. But if the quality product is priced out of reach of most people, those people will settle for "accpetable."
An excellent example of this is mac versus PC hardware. Macs are simply better quality as only idiots deny. But are PC's good enough? There certainly are good PCs, arguably better than macs depending on your criteria. But it's pretty non arguable that PCs are hamstrung by a legacy of crappy standards and crapware from microsoft. It was the race to the bottom that set those standards.
A PC can also play a game written 20 years ago using the disks it came on -- can a Mac? But that's besides the point. PC's won out over Macs because of price -- the original Mac could have been the standard, but it was priced so high that for many people, it was a PC or nothing.
So closed standards in my opinion can be much better. Whether they are better in the long run probably hinges on them becoming open standards eventually. the race to the bottom may save cash early on but it saddles us with crappy standards in the long run.
But closed standards may not survive long enough to become open standards if the prices are too high. Sure, if the licensing is cheap enough, a closed standard can win out -- like CD's, or even MP3 format. But if the standard developer decides to use their market position to wring every last dime out of their closed format, they will either fail, or become an also-ran.
Now what happens when two competing standards are both open? Firewire and USB are both open. It's not clear USB will win out. USB is better desktop bus but its not a good harddrive bus. THe low-end intel consumer is tending to makedo with USB even for disk drives. Thus it's possible USB will conquer firewire. But I doubt it.
Why do you doubt it? Every PC today has a USB port; not many have a firewire port (some do, but certainly not the majority). If USB is not as good as Firewire in some cases, but is both a) acceptable to most people, and b) cheaper, in the sense that PC's already have USB, but you have to upgrade to Firewire, why wouldn't you think it could eventually become the dominant standard (if it isn't already)?
So based on this annecdote one might decide that open or cheaply licensed standards allow quality to compete against cheap preferences of the unwashed hordes.
So USB users are the "unwashed hordes?"
It seems like there ought to be a third way. Someway for a manufacturere that created a quality standard to maintain controll and make some profit, but there sure be an assured path t
Considering that previous standards (Firewire/USB, Betamax/VHS) have been decided by the market, They were decided by the market, but there were multiple competitors making each of those choices, because the standards were available for licensing to anyone at relatively reasonable prices.
Well, at least in the VHS/Betamax case, only the VHS standard had reasonable licensing -- eith Betamax, Sony decided to follow the IBM PS2/Apple model of tightly controlling both the standard and anything made using the standard, the result being the even though Betamax was technically superior, it priced itself out of the market.
If the Apple iTunes DRM scheme was available for licensing on a nondiscriminatory basic, Congress probably wouldn't even consider getting involved.
Why should this matter? The U.S. does not have compulsory licensing laws except in a very limited number of cases.
It's not the size of Apple that's invited this attention from Congress, it's their behavior. When Sony and Philips invented the Compact Disc, if they had been unwilling to license the patents to anyone else for manufacture of either discs or players, they would have attracted attention in the same manner.
No, if Philips and Sony had not licensed the CD standard, it would have died out (see Betamax, PS2, etc.) and something else would have come along to replace it. The government didn't step in to save Betamax, they didn't step in to try and save Firewire (although admittedly Firewire is not dead, of course), they didn't step in to save DAT -- if CD's had been made too expensive due to licensing, they wouldn't have survived in the marketplace, and maybe we would all be using DAT now -- or maybe somebody would have come up with something even better.
Come on, do you honestly believe that MS and other software companys have teams of lawyers and software engineers that do nothing but sift through millions of lines of code to find out if patents are being violated?
You don't even NEED to do that anyway -- patents cover a certain functionality, not a certain way to draft the code -- and you can determine the functionality, at least at a high level, merely by seeing how the software works, and that works on both closed and open course software.
What you describe might make it easier to determine trade secret or copyright violations, but is totally unecessary to find patent violations. That said, you might need to go through the code to PROVE a patent infringement case, but once you've determined that someone else is likely to be infringing and you've filed suit, you subpoena the source code anyway.
The open sourceness of open source software really doesn't have anything to do with patent infringement. Besides, closed-source software companies sue each other all of the time --/. simply notices when an open source guy gets sued more than they notice a bunch of companies suing each other...
I have a right to use knowledge inside my head in any way I choose, and nobody has a right to restrict me. If you don't want me to use your invention, keep it secret from me. Any alternatives are dangerously close to slavery and will have similar results as use if information becomes more important in daily lives.
I don't think anyone disagrees with this. The problem is when you use the idea in your head to create something which you then distribute to compete with the company or person who holds a patent on the particular invention. But you can't infringe a patent by thinking of something, so you are safe.
And unless you have the time, energy and capability of building computer chips and motherboards and all the other bits of a computer, you'd better hope that Intel, AMD, etc., don't keep their inventions secret from you...
Well, there is something of a time limit for patents:
"35 U.S.C. 286 Time limitation on damages.
Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the period referred to in the preceding paragraph."
Not the shortest of time periods, but at least you can't wait until the last week of a patent's validity to file the lawsuits...
Re:live performances vs. commercial product
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So, while the bootlegger of a live performance may own the copyrights on the recording they made, it would be a derivative work of the song's author.
I know this is kind of nit-picky, but this wouldn't be a derivative work -- rather, ir would be a new copyright in the sound recording. Sound recordings are copyrights seperate from the copyright in the underlying musical work -- i.e., the song itself.
But you are right -- in this case, although the bootlegger owns a copyright in the sound recording, he cannot really do anything with it (legally) without infringing on the copyright of the underlying musical work.
No, it does have to do with trademark law, because it the anticybersquatting provisions reside under the federal trademark laws.
Now just because something can be BOTH blackmail under civil and criminal statutes AND cybersquatting under trademark law doesn't mean that it MUST be one or the other. Potentially, someone could be subject to a lawsuit under both causes of action.
But in this specific case, offering to sell someone else a domain, while it may also be blackmail, is cybersquatting under the trademark laws. And further, in this case, caselaw (under the aforementioned anticybersquatting rules) has blurred the differences between you saying "pay me" and me offering to buy from you and you say "pay me." These may be different (blackmail v. extortion, for example) in other parts of the law, but under the federal anticybersquatting rules, for all practical purposes, they are the same thing.
I don't disagree with you -- perhaps I should have been more careful with my wording, I don't really blame anyone either.
But then again, there are precedents for these things. When Hawaii started coming more and more under U.S. control, a few families bought up virtually all of the land in the islands, and refused to sell any of it -- they would only lease it to people Not so long ago, the federal courts basically broke up the holdings and forced the landowners to cede ownership of the land to the lessees. Not saying that's right either, but property rights -- whether they are real property rights, or intellectual property rights -- are not always as permanent as you might believe, or wish them to be...
The law is basically an overreaction to the wild west days of the early WWW, where you had all of these speculators buying up domain names and holding them hostage for huge $$$. I guess you can blame those early greedy souls for ruining it for the rest of us...
What happens if I actually wanted to sell the domain? If say; they offered me $500 for the domain, I would accept the offer. Could they then turn around (again, if they wanted to be bastardly) and slap me with a "cybersquatting" suit, and try to get the domain for *free, because I accepted their offer?
*free barring legal fees, which I'm ignoring just for the sake of argument.
Potentially. Under the ICANN rules, if the buyer makes the offer, then the buyer can't then charge the potential seller with cybersquatting. With the federal rules, however, there is caselaw that suggests that what you suggest could happen.
From a practical standpoint, however, it would seem kind of silly to spend thousands on legal fees when you could have paid just $500, but I guess if someone had the money and wanted to make a point on principle...
A secondary question comes up. Let's say that I register cantarafamily.org and use it to make fun of your family photos. You come to me and say "take that down". If I say to you that I will not take it down, but that I will *sell* it to you for whatever price, am I cybersquatting?
Actually you are. The anticyrbersquatting protection act (and now trademark law) gives specific protections in certain case when someone registers a domain using another's name as the domain name, even if they are not famous. So, the rules set forth in the case in the article would also apply to a domain that used a family name to make fun of said family.
My impression of cybersquatting is that it needs to have the express goal of being sold. When you go to a domain and see a big spammy page that says "this domain is for sale", that's cybersquatting. Putting up an inflammatory site and demanding money to remove it is blackmail... not cybersquatting.
Both are cybersquatting. The first example is clearly cybersquatting. The second would be cybersquatting under the provisions that the use of the domain must be in "good faith." But that doesn't mean that their might not be an extortion or defamation case as well...
I suppose it comes down to contact. If I call you with a proposal and say "pay me", that's one thing. If you come to me with requests and I say "pay me", that's a whole different thing.
It depends on who controls the TLD. If the TLD is an ICANN TLD, then there is the Uniform Domain Name Duspute Resolution system, or whatever it's called.
Also, most countries have trademark laws, and big companies obtain trademarks in as many countries as they can, so they can take advantage of local laws.
But yeah, if someone registered microsoft.com.tz or whatever, and whereever.tz is doesn't have anticybersquatting rules, or if Microsoft hadn't registered their trademark in wherever.tz is, then Microsoft would be outta luck.
Probably not. It is prefectly legal to have a domain name that is identical to or incorporates someone else's trademark, as long as the domain name was registered in "good faith," i.e., was registered without the intent to profit from the domain name's relationship to the trademark. You could have "nissan.com" and put up your vacation photos, or information on your model trains, or whatever -- as long as you didn't use the domain to talk about cars (then you get into "likelihood of confusion"), or try to sell it to Nissan for PROFIT! (runs afoul of anticybersquatting laws), or otherwise try and drive traffic to your site because people are confused by the name, then you are okay.
We are not allowed to do something that might confuse someone?
Well, generally not -- that's the whole point of trademark law in the U.S. The test for infringement under trademark law is always "likelihood of confusion."
In the case of "sucks" sites, though, the courts in the U.S. have generally held that the free speech rights of a consumer outweigh the rights of the trademark holder to prevent the use of "confusingly similar" domain names.
I think that two words would fall under 'fair use' for copyright. You are allowed to take short bits and quote them.
As others have noted, this is a trademark problem, not a copyright problem. There is no "fair use" under copyright here, because words, short phrases and titles are not copyrightable subject matter to begin with.
Slashdot Mirror
The general rule is that the employer is liable for the actions of its employees, and even for intentional torts of its employees when said employee is acting within the scope of his employement.
In this case, if the AOL employee was, say, a tech support person or something cruising the chatrooms during his breaks or after hours, then it is unlikely that AOL would be on the hook for his intentional conduct. However, this guy's JOB was to cruise chatrooms -- is more likely that a court would find that his behavior, even though intentional, illegal and not within company policies, to be behavior "within the scope of his emplyment" and therefore AOL will likely be on the hook. So will the guy -- but AOL will end up paying up, and will have to go after the guy for reimbursement, if he has anything.
This is standard agency stuff -- employers carry a lot of responsibility for the actions of their employees. As another poster noted, the reason for this policy is to keep a company from intentionally hiring pervs to cruise chatrooms, or hiring drunks to lead AA meetingds, or whatever -- if you are hiring someone, you have to make sure that they are not a bad seed for the job, and you have to keep your eye on them to make sure they don't change...
in the UK, theres the "loser pays legal fees" thing, which also helps to discourage the frivilous lawsuit from even being filed in the first place.
Is there no such system in the US for this?
No, we don't have "loser pays" in the U.S. Someone who prevails in a lawsuit can sometimes have their legal fees paid by the loser, but usually that requires some seriously fraudulent (not simply bad, but highly illegal) activity on the part of the loser -- also, some specific statutes provide for essentially "loser pays," and such a clause can always be part of a contract neogitation. But there is no general concept of "loser pays" in the U.S.
OFF TOPIC: The general reasoning behind this is that there is a belief that if someone has to pay if they lose, they will be unlikely to bring even a righteous lawsuit, because, lets face it, you never know what it going to happen in court. If you are judgment proof, then that might not be a big deal. But if you are solid middle-class citizens, maybe have a house or some other assets built up, you may think twice about suing Mr. Big Business, even if you have a really strong case, because the of the downside risk -- potentially losing your house and other assets, etc. Even if you had only a 2% chance of losing, many people would choose not to sue rather than take a 2% chance of being financially ruined.
So, the feeling is, in order to allow free access to the courts for people of modest means, we have to put up with a certain amount of BS. The U.S. court system has developed procedures for summary judgments and motions to dismiss that hopefully will clear out the most serious abusers of the system before they get too far along in the system. It's a trade-off, and one you might not agree with, but that's the usual policy argument you see for why we don't switch to a loser-pays system.
Im not making judgments about the two systems but dont pretend that "Roman" law is worse than the US system. At least with Roman law you can know what a law actually is!!!!
Not disagreeing -- but just to be precise, the two law systems are the civil law system and the common law system. Civil law jurisdictions, which are most countries in the world (and the state of Louisiana in the U.S.) rely on codes, whereas the common law jurisdictions rely on caselaw -- but it's not that cut and dried, because even in Civil law systems you have precedents (because you can't write laws that deal with everything up front -- sometimes you get caught with your pants down, and need to draft something on the fly), and all common law systems have statutes as well (and Louisiana uses Civil law for its state law, but is still bound to follow Federal common law, so it's a real hybrid!).
Civil law systems tend to be somewhat more predictable and easier to understand, but common law systems tend to be more adaptable and flexible. Both have advantages and disadvantages, which is why virtually all jurisdictions in the world have some elements of the other system.
I'm pretty sure there are federal laws that apply to everyone saying that you can't disclose people's nonpublic personal information. If you read those privacy letters the bank sends you when they change their TOS, they usually elude to the difference between public information and nonpublic information, I doubt they do this of their own free will.
But someone's name, address, phone number, email address, username on a website, IP address, none of these would qualify under any state or federal law as "nonpublic information" -- this is all public record stuff. What they mean by "nonpublic information" is information that could be used for identity theft -- your name, combined with a date of birth, social security number, driver's license number, bank account numbers, those sorts of things. Look up some state identity theft statutes on findlaw or something and see what states consider "public information" and "nonpublic information."
Hell, even the college you went to and dates of attendance are "public information" in most states.
So basically Comcast has decided to treat its customers as guilty until proven innocent when it comes to compyright infringement.
This is a requirement under the DMCA -- the ISP's HAVE to do this, or they lose their "safe harbor" and may themselves be sued for contributory and/or vicarious copyright infringement. As long as they follow these rules, they don't have to be worry about being sued for infringement themselves.
See 17 USC 512(c) for all of the gory details. 17 USC 512
Since when, in the United States, do traditional journalists have MORE freedom of speech than ordinary citizens? IANAL, but methinks the Australians might have a misunderstanding as to what freedom of speech for Americans means.
I believe the confusion stems from the fact that certain states, and maybe the federal statutes, provide a "journalist's privilege" which allows a journalist to avoid testifying as to the source of a story in court. This privilege is like other privileges, such as attorney-client privilege and doctor-patient privilege, in that it doesn't give anyone any more "freedom of speech," but it does allow people who can take advantage of the privilege to avoid speaking in court.
There's a few cases recently where "bloggers" have tried to assert these journalist privileges to avoid revealing a source, and this has brought up the question as to just what is a journalist, and should they have a privilege to begin with.
That's probably where the confusion comes in. It's not that journalists have a greater right to free speech that bloggers would also like to have -- as you correctly point out, a journalist has the same right to free speech as anyone esle does, and no more -- but they do have this privilege (in those states that provide for one, not all do) to avoid having to reveal their sources. So journalists are afraid that if a blogger becomes a journalist, then the privilege will end up getting "watered down" and will eventually wind up not being useful, or wind up being repealed if it gets overused.
This isn't a freedom of speech issue. There are lots of restrictions allowed on "commercial speech."
Probably nobody. I think I only included that because I had just got done reading something that talked about how one thing Apples weren't good at was backwards compatibility. I guess that's what I get for throwing things in at the last intue without thinking them through...
Actually, the government stepped in to destroy DAT. DAT recorders are mandated to make poor copies, whereas audio CDs can be copied perfectly indefinately.
Agreed, that plus the extra "you are going to violate someone's copyright with this technology eventually, so we're gonna add a buck to each blank tape you buy to pay for it" fee.
Are people sure they want these guys to step in and decide all of the standards out there? I mean, more than they do already?
But another way to look at this is to say the market was cheap-ass and bought the cheaper crappier technology and set a quality standard that was low that the rest of us future generations had to live with. THat is, if people had been willing to pay a bit more everyine could have enjoyed a better standard.
But the VHS/Betamax situation just isn't that simple. It wasn't like VHS was $10 cheaper than Betamax, and everyone was just "cheap-ass" -- the price points were the difference between "I can afford to buy this one" and "this one is right out." If the Betamax, which was better is vitually every respect but price, had been more expensive, but not unreasonably more expensive, then it is likely that it would have been the winner, or maybe we would have two formats -- of course, then there would be all of these interoperability complaints about videocassettes...
but the point is that if you let the market decide it can be a race to the bottom as idiot consumers manage to set the standard at whatever is acceptably cheapest.
Yes, that's what happened in the VHS v. Betamax wars -- but it didn't have to be that way. Had Betamaz been "acceptably" more expensive, it probably would have survived and thrived due to high quality. Consumers aren't always looking for just the cheapest possible -- if that were the case, we would all be driving Kias or something -- people will pay a premium for quality. But if the quality product is priced out of reach of most people, those people will settle for "accpetable."
An excellent example of this is mac versus PC hardware. Macs are simply better quality as only idiots deny. But are PC's good enough? There certainly are good PCs, arguably better than macs depending on your criteria. But it's pretty non arguable that PCs are hamstrung by a legacy of crappy standards and crapware from microsoft. It was the race to the bottom that set those standards.
A PC can also play a game written 20 years ago using the disks it came on -- can a Mac? But that's besides the point. PC's won out over Macs because of price -- the original Mac could have been the standard, but it was priced so high that for many people, it was a PC or nothing.
So closed standards in my opinion can be much better. Whether they are better in the long run probably hinges on them becoming open standards eventually. the race to the bottom may save cash early on but it saddles us with crappy standards in the long run.
But closed standards may not survive long enough to become open standards if the prices are too high. Sure, if the licensing is cheap enough, a closed standard can win out -- like CD's, or even MP3 format. But if the standard developer decides to use their market position to wring every last dime out of their closed format, they will either fail, or become an also-ran.
Now what happens when two competing standards are both open? Firewire and USB are both open. It's not clear USB will win out. USB is better desktop bus but its not a good harddrive bus. THe low-end intel consumer is tending to makedo with USB even for disk drives. Thus it's possible USB will conquer firewire. But I doubt it.
Why do you doubt it? Every PC today has a USB port; not many have a firewire port (some do, but certainly not the majority). If USB is not as good as Firewire in some cases, but is both a) acceptable to most people, and b) cheaper, in the sense that PC's already have USB, but you have to upgrade to Firewire, why wouldn't you think it could eventually become the dominant standard (if it isn't already)?
So based on this annecdote one might decide that open or cheaply licensed standards allow quality to compete against cheap preferences of the unwashed hordes.
So USB users are the "unwashed hordes?"
It seems like there ought to be a third way. Someway for a manufacturere that created a quality standard to maintain controll and make some profit, but there sure be an assured path t
Considering that previous standards (Firewire/USB, Betamax/VHS) have been decided by the market,
They were decided by the market, but there were multiple competitors making each of those choices, because the standards were available for licensing to anyone at relatively reasonable prices.
Well, at least in the VHS/Betamax case, only the VHS standard had reasonable licensing -- eith Betamax, Sony decided to follow the IBM PS2/Apple model of tightly controlling both the standard and anything made using the standard, the result being the even though Betamax was technically superior, it priced itself out of the market.
If the Apple iTunes DRM scheme was available for licensing on a nondiscriminatory basic, Congress probably wouldn't even consider getting involved.
Why should this matter? The U.S. does not have compulsory licensing laws except in a very limited number of cases.
It's not the size of Apple that's invited this attention from Congress, it's their behavior. When Sony and Philips invented the Compact Disc, if they had been unwilling to license the patents to anyone else for manufacture of either discs or players, they would have attracted attention in the same manner.
No, if Philips and Sony had not licensed the CD standard, it would have died out (see Betamax, PS2, etc.) and something else would have come along to replace it. The government didn't step in to save Betamax, they didn't step in to try and save Firewire (although admittedly Firewire is not dead, of course), they didn't step in to save DAT -- if CD's had been made too expensive due to licensing, they wouldn't have survived in the marketplace, and maybe we would all be using DAT now -- or maybe somebody would have come up with something even better.
Come on, do you honestly believe that MS and other software companys have teams of lawyers and software engineers that do nothing but sift through millions of lines of code to find out if patents are being violated?
/. simply notices when an open source guy gets sued more than they notice a bunch of companies suing each other...
You don't even NEED to do that anyway -- patents cover a certain functionality, not a certain way to draft the code -- and you can determine the functionality, at least at a high level, merely by seeing how the software works, and that works on both closed and open course software.
What you describe might make it easier to determine trade secret or copyright violations, but is totally unecessary to find patent violations. That said, you might need to go through the code to PROVE a patent infringement case, but once you've determined that someone else is likely to be infringing and you've filed suit, you subpoena the source code anyway.
The open sourceness of open source software really doesn't have anything to do with patent infringement. Besides, closed-source software companies sue each other all of the time --
I have a right to use knowledge inside my head in any way I choose, and nobody has a right to restrict me. If you don't want me to use your invention, keep it secret from me. Any alternatives are dangerously close to slavery and will have similar results as use if information becomes more important in daily lives.
I don't think anyone disagrees with this. The problem is when you use the idea in your head to create something which you then distribute to compete with the company or person who holds a patent on the particular invention. But you can't infringe a patent by thinking of something, so you are safe.
And unless you have the time, energy and capability of building computer chips and motherboards and all the other bits of a computer, you'd better hope that Intel, AMD, etc., don't keep their inventions secret from you...
But the problem is, how would you prove that you came up with the idea independently?
Well, there is something of a time limit for patents:
"35 U.S.C. 286 Time limitation on damages.
Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the period referred to in the preceding paragraph."
Not the shortest of time periods, but at least you can't wait until the last week of a patent's validity to file the lawsuits...
So, while the bootlegger of a live performance may own the copyrights on the recording they made, it would be a derivative work of the song's author.
I know this is kind of nit-picky, but this wouldn't be a derivative work -- rather, ir would be a new copyright in the sound recording. Sound recordings are copyrights seperate from the copyright in the underlying musical work -- i.e., the song itself.
But you are right -- in this case, although the bootlegger owns a copyright in the sound recording, he cannot really do anything with it (legally) without infringing on the copyright of the underlying musical work.
This has nothing to do with trademark law.
No, it does have to do with trademark law, because it the anticybersquatting provisions reside under the federal trademark laws.
Now just because something can be BOTH blackmail under civil and criminal statutes AND cybersquatting under trademark law doesn't mean that it MUST be one or the other. Potentially, someone could be subject to a lawsuit under both causes of action.
But in this specific case, offering to sell someone else a domain, while it may also be blackmail, is cybersquatting under the trademark laws. And further, in this case, caselaw (under the aforementioned anticybersquatting rules) has blurred the differences between you saying "pay me" and me offering to buy from you and you say "pay me." These may be different (blackmail v. extortion, for example) in other parts of the law, but under the federal anticybersquatting rules, for all practical purposes, they are the same thing.
I don't disagree with you -- perhaps I should have been more careful with my wording, I don't really blame anyone either.
But then again, there are precedents for these things. When Hawaii started coming more and more under U.S. control, a few families bought up virtually all of the land in the islands, and refused to sell any of it -- they would only lease it to people Not so long ago, the federal courts basically broke up the holdings and forced the landowners to cede ownership of the land to the lessees. Not saying that's right either, but property rights -- whether they are real property rights, or intellectual property rights -- are not always as permanent as you might believe, or wish them to be...
The law is basically an overreaction to the wild west days of the early WWW, where you had all of these speculators buying up domain names and holding them hostage for huge $$$. I guess you can blame those early greedy souls for ruining it for the rest of us...
What happens if I actually wanted to sell the domain? If say; they offered me $500 for the domain, I would accept the offer. Could they then turn around (again, if they wanted to be bastardly) and slap me with a "cybersquatting" suit, and try to get the domain for *free, because I accepted their offer?
*free barring legal fees, which I'm ignoring just for the sake of argument.
Potentially. Under the ICANN rules, if the buyer makes the offer, then the buyer can't then charge the potential seller with cybersquatting. With the federal rules, however, there is caselaw that suggests that what you suggest could happen.
From a practical standpoint, however, it would seem kind of silly to spend thousands on legal fees when you could have paid just $500, but I guess if someone had the money and wanted to make a point on principle...
A secondary question comes up. Let's say that I register cantarafamily.org and use it to make fun of your family photos. You come to me and say "take that down". If I say to you that I will not take it down, but that I will *sell* it to you for whatever price, am I cybersquatting?
Actually you are. The anticyrbersquatting protection act (and now trademark law) gives specific protections in certain case when someone registers a domain using another's name as the domain name, even if they are not famous. So, the rules set forth in the case in the article would also apply to a domain that used a family name to make fun of said family.
My impression of cybersquatting is that it needs to have the express goal of being sold. When you go to a domain and see a big spammy page that says "this domain is for sale", that's cybersquatting. Putting up an inflammatory site and demanding money to remove it is blackmail... not cybersquatting.
Both are cybersquatting. The first example is clearly cybersquatting. The second would be cybersquatting under the provisions that the use of the domain must be in "good faith." But that doesn't mean that their might not be an extortion or defamation case as well...
I suppose it comes down to contact. If I call you with a proposal and say "pay me", that's one thing. If you come to me with requests and I say "pay me", that's a whole different thing.
Not according to U.S. trademark law.
It depends on who controls the TLD. If the TLD is an ICANN TLD, then there is the Uniform Domain Name Duspute Resolution system, or whatever it's called.
.tz is doesn't have anticybersquatting rules, or if Microsoft hadn't registered their trademark in wherever .tz is, then Microsoft would be outta luck.
Also, most countries have trademark laws, and big companies obtain trademarks in as many countries as they can, so they can take advantage of local laws.
But yeah, if someone registered microsoft.com.tz or whatever, and whereever
Probably not. It is prefectly legal to have a domain name that is identical to or incorporates someone else's trademark, as long as the domain name was registered in "good faith," i.e., was registered without the intent to profit from the domain name's relationship to the trademark. You could have "nissan.com" and put up your vacation photos, or information on your model trains, or whatever -- as long as you didn't use the domain to talk about cars (then you get into "likelihood of confusion"), or try to sell it to Nissan for PROFIT! (runs afoul of anticybersquatting laws), or otherwise try and drive traffic to your site because people are confused by the name, then you are okay.
We are not allowed to do something that might confuse someone?
Well, generally not -- that's the whole point of trademark law in the U.S. The test for infringement under trademark law is always "likelihood of confusion."
In the case of "sucks" sites, though, the courts in the U.S. have generally held that the free speech rights of a consumer outweigh the rights of the trademark holder to prevent the use of "confusingly similar" domain names.
I think that two words would fall under 'fair use' for copyright. You are allowed to take short bits and quote them.
As others have noted, this is a trademark problem, not a copyright problem. There is no "fair use" under copyright here, because words, short phrases and titles are not copyrightable subject matter to begin with.