Offering to sell a domain name that includes someone else's trademarked name in it to that someone for $$$ is what gets you in trouble under the anticybersquatting rules. Here's the (long_ relevant part of the Anticybersquatting Consumer Protection Act of 1999:
(d)(l)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person --
(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that --
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a-trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code.
(B)(i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to --
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct;
(VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of section 43.
(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.
(C) In any civil action involving the registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.
(D) A person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that regi
And as an aside, there is no such thing as a verdict of "innocent," only a verdict of "not guilty."
Exactly true (in the U.S. at least), and something many people forget. "Innocent until proven guilty" is still the rule in the U.S., but if there is enough evidence to go to trial, you are no longer "innocent" -- at that point, the presumption of innocence is gone, and it is just a matter of whether or not the prosecution can prove that you are guilty "beyond a reasonable doubt."
On a related note, if it turns out there was so little evidence that you should have never been tried in the first place, you can petition the court to declare you "factually innocent" -- it doesn't happen often, but that's the one way to go through a trial and actually end up as "innocent" as opposed to "not guilty."
I don't pretend to be a tax expert, but there are some states (I don't know how many, I know CA is one, and I know there are more than just CA) that will levy income tax even if you work just one day in the state -- they set this up in order to tax professional athletes. This way, CA get's taxes from a day's wages from each Bulls player and coach whenever the Bulls come into town to play the Lakers. It may be that there is a minimum income level for this to apply, but I remember reading about the complexity of the tax returns for pro athletes -- of course, they can afford CPA's to deal with it for them, so I don't have a lot of sympathy...
Maybe slightly off-topic, but in the U.S., all income from whatever source is taxable -- even income from illegal gambling, stealing, whatever. Of course, most people never REPORT that income to the IRS, but it is technically taxable...
Alternately, is there a way for the inventor to decare a patent "in the public domain" much as an artist can with copyright?
35 U.S.C. 253 Disclaimer.
Whenever, without any deceptive intention, a claim of a patent is invalid the remaining claims shall not thereby be rendered invalid. A patentee, whether of the whole or any sectional interest therein, may, on payment of the fee required by law, make disclaimer of any complete claim, stating therein the extent of his interest in such patent. Such disclaimer shall be in writing and recorded in the Patent and Trademark Office, and it shall thereafter be considered as part of the original patent to the extent of the interest possessed by the disclaimant and by those claiming under him.
In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted.
But part of the reason for the agreement is because each side is likely spending $1 million + per month on legal fees -- sometimes its better just to cut and run. Especially in litigation, where even if you spend the money on the lawyers, you still may lose anyway. At some point you just make a business decision.
This was a nasty case anyway -- just a couple of weeks ago a judge smacked down Rambus for spoliation of evidence (read: destroying documents), and before that, Infineon got into all sorts of trouble for the same types of shenanigans...
Just ot be nit-picky, "Berne" covers copyrights, notpatents. There have been a number of rounds of "harmonization" of patent laws, the Uruguay rounds under GATT, TRIPs, etc., but Berne isn't one of them.
No diasagreements, just thought I would correct that one point.
Back in the day, patents were not allowed on any sort of software at all. So, the convention arose of describing the entire process of the invention, including its realization on a general purpose computer running some software. Without this description of a concrete implementation, the patent application would get rejected. This text is essentially boilerplate for inventions that happen to be implemented with a general-purpose machine and some peripherals rather than a dedicated single-purpose machine with a hardwired "program".
Exactly -- this is called a "Beauregard claim," from the case in re Beauregard where someone first tried to patent software using claim language of this type.
Nowadays, since we can directly patent software via business method patents, this claim language is somewhat superfluous, but a lot of patents still use it -- who knows, if they ever overturn State Street, maybe this claim language will save some patents...
Not to put down Big Al, but he only had a small armful of memorable discoveries spread over the decades of his career.
You are kidding, right? Sure, as Einstein grew older, he produced less and less, but here's what he did in 1905 alone:
"A New Determination of Molecular Dimensions" (Einstein's doctoral dissertation) (30 April 1905) Buchdruckerei K. J. Wyss, Bern, 1906. Also: Annalen der Physik, 19(1906), pp. 289-305. This is Einstein's doctoral dissertation, submitted after much delay to the University of Zurich. In it he uses available physical data on the diffusion of sugar in solution and the effect of dissolved sugar on the solution's viscosity to determine the size of sugar molecules and Avogadro's number. The analysis makes the kinetic theory of heat more definite, in so far as it provides a measure of the real size of molecules, so that they cannot be dismissed as easily as useful fictions. It is the least impressive of Einstein's work of 1905 although, curiously, the most cited.
"On the motion of small particles suspended in liquids at rest required by the molecular-kinetic theory of heat." (Brownian motion paper) (May 1905; received 11 May 1905) Annalen der Physik, 17(1905), pp. 549-560. In this paper Einstein reports that the kinetic theory of heat predicts that small particles suspended in water must execute a random motion visible under the microscope. He suspects this motion is Brownian motion but has insufficient data to affirm it. The prediction is a powerful test of the truth of the kinetic theory of heat. A failure to observe the effect would refute the theory. If it is seen and measured, it provides a way to estimate Avogadro's number. The domain in which the effect is observed is one in which the second law of thermodynamics no longer holds, a disturbing result for the energeticists of the time.
"On the electrodynamics of moving bodies" (special relativity) (June 1905; received 30 June 1905) Annalen der Physik, 17(1905), pp. 891-921. Einstein develops the special theory of relativity in this paper. His concern, as he makes clear in the introduction, is that then current electrodynamics harbors a state of rest, the ether state of rest, and the theory gives very different accounts of electrodynamic processes at rest or moving in the ether. But experiments in electrodynamics and optic have provided no way to determine which is the ether state of rest of all inertial state of motion. Einstein shows that Maxwell-Lorentz electrodynamics has in fact always obeyed a principle of relativity of inertial motion. We just failed to notice it since we tacitly thought that space and time had Newtonian properties, not those of special relativity.
"Does the inertia of a body depend on its energy content?" (E=mc2) (September 1905; received 27 September 1905) Annalen der Physik, 18(1905), pp. 639-41. Written as a brief follow-up to the special relativity paper, this short note derives the inertial of energy: all energy E also has an inertia E/c2.
"On a heuristic viewpoint concerning the production and transformation of light." (light quantum/photoelectric effect paper) (17 March 1905) Annalen der Physik, 17(1905), pp. 132-148. While the victory in the 19th century of the electromagnetic wave theory of light over Newton's corpuscle view is undeniable, Einstein shows that its success is incomplete. The theory gives incorrect results for the analysis of heat radiation. He looks at the thermodynamic properties of high frequency heat radiation and finds that this radiation behaves just like a collection of many spatially localized units ("quanta") of energy of magnitude hf (h=Planck's constant, f=frequency). He proceeds to show how this quantum view of light makes sense of several experiments in electrodynamics and optics, the best know being the photoelectric effect. He then described the paper as "revolutionary."
And these were on wildly different apsects of physics -- Brownian motion, Relativity, Statistical Mechanics, Photoele
You seem to have an expectation that companies will give you stuff just because you think, after the fact, that your contract wasn't fair. This is something to deal with before you sign, not after.
No, that's not what I think -- what I believe (and what the law says) is that if a contract binds you to something that seems reasonable at the time you sign it, but later turns out to be illegal, whether or not you used "due diligence" when you signed the contract isn't the point -- the contract will be void because of the illegality.
My interpretation of what you wrote is that once you sign the contract, that's it -- even if there is something illegal in the contract, deal with it. I'm not talking about unfair contracts, or bad contracts -- I'm talking about contracts that bind someone to something that is illegal, whether the contract drafter meant to or not. If you are in a contract, and find out later that the contract itself is illegal, then you should have a remedy -- you shouldn't have to rely on a lawyer up front to protect your rights.
And that's what's happening in this case. Someone signed an employement contract to be a contractor. It appears that HP treated the person as an employee -- under Idaho law, that means they are an employee -- in essence, the contract is in violation of the law. If the person would be better of as an employee than a contractor, why shouldn't the employee, once they realized that HP was violating the law, be able to void the contract and sue to obtain the rights that were withheld from them because HP held them to a contract which violated state law?
This isn't a question of not living up to your contractual obligations, or trying to change a contract later on if you feel slighted -- its about having a remedy if you end up in an employment contract that is contrary to the law.
I think we got off topic arguing about whether or not you need a lawyer for any old contract, that I admit...
I must of missed the part when people were forced to live in Boise. Don't like working in a town where there's only one major employer? Move to a city with some other industries.
Why should you have to move? Why shouldn't HP be forced to comply with the law? I just don't get/. sometimes -- when been corporations are screwing you, by not letting you freely copy files or forcing you to agree to EULA's or not creating Linux-compatible software, you talk about how horrible big business and the corporate class is.
But when a corporation is (potentially, we don't have all of the facts yet) screwing someone out of benefits, pay, or vacation, we side with the business? How does that work out?
What I don't get is that the plaintiff seems like a smart person, why didn't she apply for FTE if thats what she wanted?
Maybe they didn't have any full-time jobs open, and she didn't have the luxury of sitting around and waiting for a FT job to open up.
Or perhaps she liked the higher per hour wage of contract work?
Not all contract workers make more than permanent employees.
You pays your money and you takes your chances. She doesn't like the outcome of the game and wants to get compensated for it. Tough noogies.
You've never had anyone take advantage of you, I take it?
We aren't expected to understand contracts, which is why you show it to your lawyer.
Do you sit down with your lawyer everytime you sign a contract? I'm not trying to be argumentative, this is a legitimate question. What about when you signed up for a sell phone? Or purchased or leased your last car? Or singed up for a credit card? Where do you draw the line? Hell, lets take a/. argument -- do you ask your lawyer before you agree to a shrink-wrap EULA?
If you didn't get a lawyer's approval before signing off, and you later find out that the company you contracted with did something illegal, or took advantage of your (relative) ignorance, is it just tough sh*t for you? Should you have any recourse when you find out what the other guy did was wrong, or is it just a case of "hey, you signed the contract -- if you wanted something different, you should have negotiated a different contract?"
You note that "in general contracting agreement's aren't that complicated." How do you know that? Do you know all of the laws regarding contracts? Do you know all of the employment laws, and laws regulating contractors and other employees?
Hell, most lawyers don't know all of those laws without having to research them first -- should a company, who probably (certainly in HP's case) has lawyers on staff or retainer, be able to draft a contract that looks good to a layman but contains some non-obvious illegality, and not provide for any remedy to the employee once they learn of the illegality? Or should we require an attorney for each an every contract being signed? I am a lawyer, so I guess that would be good for business -- but honestly, do you think that it is reasonable for someone to get a lawyer each and every time they sign a contract?
General rule, if it doesn't explicity state it in the contract, you don't get it.
Actually, there are all sorts of "implied" things that exist in a contract. One of which is an "implied covenant of good faith and fair dealing." So a contract is not limited to the "four corners" of the document.
In any event, all of this arguing back and forth doesn't really matter. If, by law, HP should have made these contractors employees, it'll come out in the court case.
*roll eyes* Give me a break. Read the contract. If you agree, sign the contract. If you don't, don't sign the contract. If you sign the contract, you have the obligation to fulfill it to the best of your ability. Don't like the fact the fulltimers get vacation and you don't? Talk to your agency or go work somewhere else. Suing someone retroactively or whining that you didn't get everything under the sun means you have no class nor integrity.
But what if you do read and understand the contract, seems good so you sign it, then later on you find out the you signed away or didn't get some legal right that you were entitled to? Should you not be able to obtain those rights or whatever? I'm not talking about misreading or not understanding the contract -- I'm talking about not knowing the underlying laws. How many people before reading this topic really understood the legal definitions of contractors and employees? Do YOU know every possible underlying law whenever you sign something? Do you think you should be held to whatever you sign, even if there is some onerous law that you are now liable under that you didn't even know about?
The rule of thumb is "ignorance of the law is no excuse" -- well, if you are liable for understanding laws you don't even know about, shouldn't you also be able to obtain the benefits of laws you don't even know about, at least once you find out about the laws?
Or are you saying that before you sign any contract, you need to sit down with a lawyer and make sure everything is as it should be? That seems like a pretty harsh measure, especially in the largely lawyer-hostile world of/.!
If Compaq/HP contractors weren't getting payed sufficiantly more than employees to cover this kind of thing then they should have walked away from the job en-mass.
How many other jobs are there in Boise? If you have a family and a mortgage or other bills, it's not always simple to just tell you boss to "take this job and shove it." This is why we have labor laws -- without them, the company almost always has less to lose than the employees do, so they can push harder than employees can push back.
I think lawsuits like this are a good thing because they provide some credible deterrent for this kind of behavior. Without the threat of such lawsuits, there's no serious disincentive against abusing the rules surrounding independent contractors, and the rules become effectively worthless.
Exactly. In a perfect, free-market world, employers and employees would have equal bargaining power, each could bargain for whatever was in each side's best interest, and there would be no need for labor and employment laws. The contract they signed would be it.
In real life, however, the bargaining power is almost always far from equal -- the employee needs a job far more than an employer needs to hire THAT particular employee, so that gives the employer much more bargaining power than the employee. That's why we have labor and employment laws -- to put a limit on how far the employer can push the employee in the bargaining process, and after the bargaining process. Even if there is a contract in place, the employee almost always has more to lose by demanding that the empoyer follow the contract than does the employer abusing the contract.
Of course, there are always limited situations where the employee has the upper hand in bargaining -- like when they are a serious expert, or have some specific skill, or whatever -- but this is the exception, not the rule, and I don't see any evidence that all of these people in the suit were experts with superior bargaining power, such that they have no need of labor and employment laws to protect them...
So this person voluntarily entered into a contract with HP (well, with a subcontractor of HP), with the understanding that she would be paid X dollars in exchange for Y hours work, with no additional compensation expected on either side. Fast forward a couple years and now we're supposed to let her renegotiate the contract BACKDATED TO THE START because she's changed her mind?
But a contract isn't valid if it requires a law to be broken. And in all states in the U.S., you can't just call someone a contractor and have that be the end of it -- every state has there own checklist of what is a contractor and what isn't. Just because you have someone sign a contract saying they are a "contractor" doesn't mean that contract is valid -- they actually have to meet the test to be a contractor.
It's like the whole exempt versus non-exempt worker -- employers like to classify workers as exempt, so they don't have to pay them overtime. But the laws don't let the employer decide who gets overtime and who doesn't -- there are a set of rules that define what the duties of an exmpt employee are, and if an employee doesn't meet that test, then classifying them as exempt is against the law, and any contract specifying otherwise is void.
Now, who knows if these contractors who are suing meet the Idaho definition of contractor or not -- but the whole idea that a contract is the be-all-end-all is incorrect.
You hit the nail on the head -- it doesn't matter if a company calls someone a contractor or not -- they are a contractor if they meet certain criteria, otherwise they are employees.
You can look here for some information on how Idaho figures out if someone is an employee or a contractor.
Company's also like to classify people as "exempt" to avoid paying overtime -- but again, it doesn't matter whether the employer calls someone exempt or not -- it all depends on whether or not someone can meet the criteria of being exempt.
If these people really meet the definition of contractors, and are just now complaining, then the hell with them. But if they are really employees, well, that's why we have labor and employment laws.
I'm pretty much a free-market type of guy, but unfortunately you just can't put an employer and an employee on equal footing as far as bargaining power is concerned -- the employee almost always needs a job more than an employer needs to hire that particular individual -- so we have labor and employment laws to keep the employers from completely screwing their employees...
But the point is, once the RIAA proves (more likely than not -- this is civil, so it's preponderance of the evidence standard) that it is more likely than not that you did it, then the burden of proof shifts to you to prove you didn't do it. If all you have is "I didn't do it" I'm not sure I would take that bet...
"1) It is very difficult to really prove actual loss from people downloading music."
And that's why copyright law has "statutory damages" -- when it is hard to prove actual damages, or there are no actual damages, the court can still impose damages. See 17 USC 504(c)
The point of these statutory damages is twofold -- one is to compensate the copyright holder for actual and presumed losses, and the other is to make it hurt so that the infringer will stop infringing.
That's why when you steal a $.50 pack of gum, you could potentially go to jail -- it's not because the gum is worth that much, but they want to make it hurt in order to deter the behavior.
This is why. See section (c)(2) -- $750 is on the low end, they COULD get up to $30,000 per song...
504. Remedies for infringement: Damages and profits
(a) In General. - Except as otherwise provided by this title, an infringer of copyright is liable for either -
(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits. - The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(c) Statutory Damages. -
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
(d) Additional Damages in Certain Cases. - In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.
"If the RIAA comes after me, I'm going to court and tell them that I don't secure my wireless router. I have no idea who leaches off my internet connection and I don't care."
Yeah, except that argument just isn't going to fly in court.
Court: RIAA, what's your evidence that AC infringed on your copyrights?
RIAA: We have his IP address showing he downloaded and shared X songs.
Court: AC, what's you defense?
AC: I don't secure my wireless router. I have no idea who leaches off my internet connection and I don't care.
Do you honestly believe that "I didn't do it, and I don't know who did it" is going to fly? You can't just say "it wasn't me" -- you have to have some evidence that it wasn't you -- and evidence that it potentially wasn't you isn't enough, you need real evidence that it wasn't you, because the RIAA has evidence that it WAS you, and the court isn't going to take your word for it that it wasn't you...
"I equate downloading a song you did not pay for with listening to the radio and getting up and walking away during the commercials. In both cases you're not "paying for" the music, but you're not doing anything wrong."
But the problem with your analogy here is that the RIAA has already gotten their money -- the radio station had to pay them to play the music -- so you are taking from the radio station, not the RIAA. The RIAA already got paid, they don't care if you listen to the commercials or not.
But when you donwload, you are taking away (at least in their minds) a sale of a CD, and that DOES impact their bottom line. I guess you could say that the stores have already paid for the CD's, but the difference between a store and a radio station is that the store returns the CD's it can't sell to the RIAA (or actually to the record companies, but it is easier to write RIAA), whereas the radio station doesn't get a refund on their license if you stop listening.
Slashdot Mirror
Offering to sell a domain name that includes someone else's trademarked name in it to that someone for $$$ is what gets you in trouble under the anticybersquatting rules. Here's the (long_ relevant part of the Anticybersquatting Consumer Protection Act of 1999:
(d)(l)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person --
(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that --
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a-trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code.
(B)(i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to --
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct;
(VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of section 43.
(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.
(C) In any civil action involving the registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.
(D) A person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that regi
And as an aside, there is no such thing as a verdict of "innocent," only a verdict of "not guilty."
Exactly true (in the U.S. at least), and something many people forget. "Innocent until proven guilty" is still the rule in the U.S., but if there is enough evidence to go to trial, you are no longer "innocent" -- at that point, the presumption of innocence is gone, and it is just a matter of whether or not the prosecution can prove that you are guilty "beyond a reasonable doubt."
On a related note, if it turns out there was so little evidence that you should have never been tried in the first place, you can petition the court to declare you "factually innocent" -- it doesn't happen often, but that's the one way to go through a trial and actually end up as "innocent" as opposed to "not guilty."
I don't pretend to be a tax expert, but there are some states (I don't know how many, I know CA is one, and I know there are more than just CA) that will levy income tax even if you work just one day in the state -- they set this up in order to tax professional athletes. This way, CA get's taxes from a day's wages from each Bulls player and coach whenever the Bulls come into town to play the Lakers. It may be that there is a minimum income level for this to apply, but I remember reading about the complexity of the tax returns for pro athletes -- of course, they can afford CPA's to deal with it for them, so I don't have a lot of sympathy...
And you don't even have to lave legal income;
Maybe slightly off-topic, but in the U.S., all income from whatever source is taxable -- even income from illegal gambling, stealing, whatever. Of course, most people never REPORT that income to the IRS, but it is technically taxable...
Because with the P2P networks, there is an extra unauthorized distribution involved.
Alternately, is there a way for the inventor to decare a patent "in the public domain" much as an artist can with copyright?
35 U.S.C. 253 Disclaimer.
Whenever, without any deceptive intention, a claim of a patent is invalid the remaining claims shall not thereby be rendered invalid. A patentee, whether of the whole or any sectional interest therein, may, on payment of the fee required by law, make disclaimer of any complete claim, stating therein the extent of his interest in such patent. Such disclaimer shall be in writing and recorded in the Patent and Trademark Office, and it shall thereafter be considered as part of the original patent to the extent of the interest possessed by the disclaimant and by those claiming under him.
In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted.
But part of the reason for the agreement is because each side is likely spending $1 million + per month on legal fees -- sometimes its better just to cut and run. Especially in litigation, where even if you spend the money on the lawyers, you still may lose anyway. At some point you just make a business decision.
This was a nasty case anyway -- just a couple of weeks ago a judge smacked down Rambus for spoliation of evidence (read: destroying documents), and before that, Infineon got into all sorts of trouble for the same types of shenanigans...
Just ot be nit-picky, "Berne" covers copyrights, notpatents. There have been a number of rounds of "harmonization" of patent laws, the Uruguay rounds under GATT, TRIPs, etc., but Berne isn't one of them.
No diasagreements, just thought I would correct that one point.
Back in the day, patents were not allowed on any sort of software at all. So, the convention arose of describing the entire process of the invention, including its realization on a general purpose computer running some software. Without this description of a concrete implementation, the patent application would get rejected. This text is essentially boilerplate for inventions that happen to be implemented with a general-purpose machine and some peripherals rather than a dedicated single-purpose machine with a hardwired "program".
Exactly -- this is called a "Beauregard claim," from the case in re Beauregard where someone first tried to patent software using claim language of this type.
Nowadays, since we can directly patent software via business method patents, this claim language is somewhat superfluous, but a lot of patents still use it -- who knows, if they ever overturn State Street, maybe this claim language will save some patents...
Not to put down Big Al, but he only had a small armful of memorable discoveries spread over the decades of his career.
You are kidding, right? Sure, as Einstein grew older, he produced less and less, but here's what he did in 1905 alone:
"A New Determination of Molecular Dimensions" (Einstein's doctoral dissertation) (30 April 1905)
Buchdruckerei K. J. Wyss, Bern, 1906.
Also: Annalen der Physik, 19(1906), pp. 289-305.
This is Einstein's doctoral dissertation, submitted after much delay to the University of Zurich. In it he uses available physical data on the diffusion of sugar in solution and the effect of dissolved sugar on the solution's viscosity to determine the size of sugar molecules and Avogadro's number. The analysis makes the kinetic theory of heat more definite, in so far as it provides a measure of the real size of molecules, so that they cannot be dismissed as easily as useful fictions. It is the least impressive of Einstein's work of 1905 although, curiously, the most cited.
"On the motion of small particles suspended in liquids at rest required by the molecular-kinetic theory of heat." (Brownian motion paper) (May 1905; received 11 May 1905)
Annalen der Physik, 17(1905), pp. 549-560.
In this paper Einstein reports that the kinetic theory of heat predicts that small particles suspended in water must execute a random motion visible under the microscope. He suspects this motion is Brownian motion but has insufficient data to affirm it. The prediction is a powerful test of the truth of the kinetic theory of heat. A failure to observe the effect would refute the theory. If it is seen and measured, it provides a way to estimate Avogadro's number. The domain in which the effect is observed is one in which the second law of thermodynamics no longer holds, a disturbing result for the energeticists of the time.
"On the electrodynamics of moving bodies" (special relativity) (June 1905; received 30 June 1905)
Annalen der Physik, 17(1905), pp. 891-921.
Einstein develops the special theory of relativity in this paper. His concern, as he makes clear in the introduction, is that then current electrodynamics harbors a state of rest, the ether state of rest, and the theory gives very different accounts of electrodynamic processes at rest or moving in the ether. But experiments in electrodynamics and optic have provided no way to determine which is the ether state of rest of all inertial state of motion. Einstein shows that Maxwell-Lorentz electrodynamics has in fact always obeyed a principle of relativity of inertial motion. We just failed to notice it since we tacitly thought that space and time had Newtonian properties, not those of special relativity.
"Does the inertia of a body depend on its energy content?" (E=mc2) (September 1905; received 27 September 1905) Annalen der Physik, 18(1905), pp. 639-41.
Written as a brief follow-up to the special relativity paper, this short note derives the inertial of energy: all energy E also has an inertia E/c2.
"On a heuristic viewpoint concerning the production and transformation of light." (light quantum/photoelectric effect paper) (17 March 1905)
Annalen der Physik, 17(1905), pp. 132-148.
While the victory in the 19th century of the electromagnetic wave theory of light over Newton's corpuscle view is undeniable, Einstein shows that its success is incomplete. The theory gives incorrect results for the analysis of heat radiation. He looks at the thermodynamic properties of high frequency heat radiation and finds that this radiation behaves just like a collection of many spatially localized units ("quanta") of energy of magnitude hf (h=Planck's constant, f=frequency). He proceeds to show how this quantum view of light makes sense of several experiments in electrodynamics and optics, the best know being the photoelectric effect. He then described the paper as "revolutionary."
And these were on wildly different apsects of physics -- Brownian motion, Relativity, Statistical Mechanics, Photoele
You seem to have an expectation that companies will give you stuff just because you think, after the fact, that your contract wasn't fair. This is something to deal with before you sign, not after.
No, that's not what I think -- what I believe (and what the law says) is that if a contract binds you to something that seems reasonable at the time you sign it, but later turns out to be illegal, whether or not you used "due diligence" when you signed the contract isn't the point -- the contract will be void because of the illegality.
My interpretation of what you wrote is that once you sign the contract, that's it -- even if there is something illegal in the contract, deal with it. I'm not talking about unfair contracts, or bad contracts -- I'm talking about contracts that bind someone to something that is illegal, whether the contract drafter meant to or not. If you are in a contract, and find out later that the contract itself is illegal, then you should have a remedy -- you shouldn't have to rely on a lawyer up front to protect your rights.
And that's what's happening in this case. Someone signed an employement contract to be a contractor. It appears that HP treated the person as an employee -- under Idaho law, that means they are an employee -- in essence, the contract is in violation of the law. If the person would be better of as an employee than a contractor, why shouldn't the employee, once they realized that HP was violating the law, be able to void the contract and sue to obtain the rights that were withheld from them because HP held them to a contract which violated state law?
This isn't a question of not living up to your contractual obligations, or trying to change a contract later on if you feel slighted -- its about having a remedy if you end up in an employment contract that is contrary to the law.
I think we got off topic arguing about whether or not you need a lawyer for any old contract, that I admit...
I must of missed the part when people were forced to live in Boise. Don't like working in a town where there's only one major employer? Move to a city with some other industries.
/. sometimes -- when been corporations are screwing you, by not letting you freely copy files or forcing you to agree to EULA's or not creating Linux-compatible software, you talk about how horrible big business and the corporate class is.
Why should you have to move? Why shouldn't HP be forced to comply with the law? I just don't get
But when a corporation is (potentially, we don't have all of the facts yet) screwing someone out of benefits, pay, or vacation, we side with the business? How does that work out?
What I don't get is that the plaintiff seems like a smart person, why didn't she apply for FTE if thats what she wanted?
Maybe they didn't have any full-time jobs open, and she didn't have the luxury of sitting around and waiting for a FT job to open up.
Or perhaps she liked the higher per hour wage of contract work?
Not all contract workers make more than permanent employees.
You pays your money and you takes your chances. She doesn't like the outcome of the game and wants to get compensated for it. Tough noogies.
You've never had anyone take advantage of you, I take it?
We aren't expected to understand contracts, which is why you show it to your lawyer.
/. argument -- do you ask your lawyer before you agree to a shrink-wrap EULA?
Do you sit down with your lawyer everytime you sign a contract? I'm not trying to be argumentative, this is a legitimate question. What about when you signed up for a sell phone? Or purchased or leased your last car? Or singed up for a credit card? Where do you draw the line? Hell, lets take a
If you didn't get a lawyer's approval before signing off, and you later find out that the company you contracted with did something illegal, or took advantage of your (relative) ignorance, is it just tough sh*t for you? Should you have any recourse when you find out what the other guy did was wrong, or is it just a case of "hey, you signed the contract -- if you wanted something different, you should have negotiated a different contract?"
You note that "in general contracting agreement's aren't that complicated." How do you know that? Do you know all of the laws regarding contracts? Do you know all of the employment laws, and laws regulating contractors and other employees?
Hell, most lawyers don't know all of those laws without having to research them first -- should a company, who probably (certainly in HP's case) has lawyers on staff or retainer, be able to draft a contract that looks good to a layman but contains some non-obvious illegality, and not provide for any remedy to the employee once they learn of the illegality? Or should we require an attorney for each an every contract being signed? I am a lawyer, so I guess that would be good for business -- but honestly, do you think that it is reasonable for someone to get a lawyer each and every time they sign a contract?
General rule, if it doesn't explicity state it in the contract, you don't get it.
Actually, there are all sorts of "implied" things that exist in a contract. One of which is an "implied covenant of good faith and fair dealing." So a contract is not limited to the "four corners" of the document.
In any event, all of this arguing back and forth doesn't really matter. If, by law, HP should have made these contractors employees, it'll come out in the court case.
*roll eyes* Give me a break. Read the contract. If you agree, sign the contract. If you don't, don't sign the contract. If you sign the contract, you have the obligation to fulfill it to the best of your ability. Don't like the fact the fulltimers get vacation and you don't? Talk to your agency or go work somewhere else. Suing someone retroactively or whining that you didn't get everything under the sun means you have no class nor integrity.
/.!
But what if you do read and understand the contract, seems good so you sign it, then later on you find out the you signed away or didn't get some legal right that you were entitled to? Should you not be able to obtain those rights or whatever? I'm not talking about misreading or not understanding the contract -- I'm talking about not knowing the underlying laws. How many people before reading this topic really understood the legal definitions of contractors and employees? Do YOU know every possible underlying law whenever you sign something? Do you think you should be held to whatever you sign, even if there is some onerous law that you are now liable under that you didn't even know about?
The rule of thumb is "ignorance of the law is no excuse" -- well, if you are liable for understanding laws you don't even know about, shouldn't you also be able to obtain the benefits of laws you don't even know about, at least once you find out about the laws?
Or are you saying that before you sign any contract, you need to sit down with a lawyer and make sure everything is as it should be? That seems like a pretty harsh measure, especially in the largely lawyer-hostile world of
If Compaq/HP contractors weren't getting payed sufficiantly more than employees to cover this kind of thing then they should have walked away from the job en-mass.
How many other jobs are there in Boise? If you have a family and a mortgage or other bills, it's not always simple to just tell you boss to "take this job and shove it." This is why we have labor laws -- without them, the company almost always has less to lose than the employees do, so they can push harder than employees can push back.
I think lawsuits like this are a good thing because they provide some credible deterrent for this kind of behavior. Without the threat of such lawsuits, there's no serious disincentive against abusing the rules surrounding independent contractors, and the rules become effectively worthless.
Exactly. In a perfect, free-market world, employers and employees would have equal bargaining power, each could bargain for whatever was in each side's best interest, and there would be no need for labor and employment laws. The contract they signed would be it.
In real life, however, the bargaining power is almost always far from equal -- the employee needs a job far more than an employer needs to hire THAT particular employee, so that gives the employer much more bargaining power than the employee. That's why we have labor and employment laws -- to put a limit on how far the employer can push the employee in the bargaining process, and after the bargaining process. Even if there is a contract in place, the employee almost always has more to lose by demanding that the empoyer follow the contract than does the employer abusing the contract.
Of course, there are always limited situations where the employee has the upper hand in bargaining -- like when they are a serious expert, or have some specific skill, or whatever -- but this is the exception, not the rule, and I don't see any evidence that all of these people in the suit were experts with superior bargaining power, such that they have no need of labor and employment laws to protect them...
So this person voluntarily entered into a contract with HP (well, with a subcontractor of HP), with the understanding that she would be paid X dollars in exchange for Y hours work, with no additional compensation expected on either side. Fast forward a couple years and now we're supposed to let her renegotiate the contract BACKDATED TO THE START because she's changed her mind?
But a contract isn't valid if it requires a law to be broken. And in all states in the U.S., you can't just call someone a contractor and have that be the end of it -- every state has there own checklist of what is a contractor and what isn't. Just because you have someone sign a contract saying they are a "contractor" doesn't mean that contract is valid -- they actually have to meet the test to be a contractor.
It's like the whole exempt versus non-exempt worker -- employers like to classify workers as exempt, so they don't have to pay them overtime. But the laws don't let the employer decide who gets overtime and who doesn't -- there are a set of rules that define what the duties of an exmpt employee are, and if an employee doesn't meet that test, then classifying them as exempt is against the law, and any contract specifying otherwise is void.
Now, who knows if these contractors who are suing meet the Idaho definition of contractor or not -- but the whole idea that a contract is the be-all-end-all is incorrect.
You hit the nail on the head -- it doesn't matter if a company calls someone a contractor or not -- they are a contractor if they meet certain criteria, otherwise they are employees.
You can look here for some information on how Idaho figures out if someone is an employee or a contractor.
Company's also like to classify people as "exempt" to avoid paying overtime -- but again, it doesn't matter whether the employer calls someone exempt or not -- it all depends on whether or not someone can meet the criteria of being exempt.
If these people really meet the definition of contractors, and are just now complaining, then the hell with them. But if they are really employees, well, that's why we have labor and employment laws.
I'm pretty much a free-market type of guy, but unfortunately you just can't put an employer and an employee on equal footing as far as bargaining power is concerned -- the employee almost always needs a job more than an employer needs to hire that particular individual -- so we have labor and employment laws to keep the employers from completely screwing their employees...
They rent and sell flats in San Francisco, at least -- don't know about anywhere else in the U.S.
But the point is, once the RIAA proves (more likely than not -- this is civil, so it's preponderance of the evidence standard) that it is more likely than not that you did it, then the burden of proof shifts to you to prove you didn't do it. If all you have is "I didn't do it" I'm not sure I would take that bet...
"1) It is very difficult to really prove actual loss from people downloading music."
And that's why copyright law has "statutory damages" -- when it is hard to prove actual damages, or there are no actual damages, the court can still impose damages. See 17 USC 504(c)
The point of these statutory damages is twofold -- one is to compensate the copyright holder for actual and presumed losses, and the other is to make it hurt so that the infringer will stop infringing.
That's why when you steal a $.50 pack of gum, you could potentially go to jail -- it's not because the gum is worth that much, but they want to make it hurt in order to deter the behavior.
This is why. See section (c)(2) -- $750 is on the low end, they COULD get up to $30,000 per song...
504. Remedies for infringement: Damages and profits
(a) In General. - Except as otherwise provided by this title, an infringer of copyright is liable for either -
(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits. - The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(c) Statutory Damages. -
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
(d) Additional Damages in Certain Cases. - In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.
"If the RIAA comes after me, I'm going to court and tell them that I don't secure my wireless router. I have no idea who leaches off my internet connection and I don't care."
Yeah, except that argument just isn't going to fly in court.
Court: RIAA, what's your evidence that AC infringed on your copyrights?
RIAA: We have his IP address showing he downloaded and shared X songs.
Court: AC, what's you defense?
AC: I don't secure my wireless router. I have no idea who leaches off my internet connection and I don't care.
Do you honestly believe that "I didn't do it, and I don't know who did it" is going to fly? You can't just say "it wasn't me" -- you have to have some evidence that it wasn't you -- and evidence that it potentially wasn't you isn't enough, you need real evidence that it wasn't you, because the RIAA has evidence that it WAS you, and the court isn't going to take your word for it that it wasn't you...
"I equate downloading a song you did not pay for with listening to the radio and getting up and walking away during the commercials. In both cases you're not "paying for" the music, but you're not doing anything wrong."
But the problem with your analogy here is that the RIAA has already gotten their money -- the radio station had to pay them to play the music -- so you are taking from the radio station, not the RIAA. The RIAA already got paid, they don't care if you listen to the commercials or not.
But when you donwload, you are taking away (at least in their minds) a sale of a CD, and that DOES impact their bottom line. I guess you could say that the stores have already paid for the CD's, but the difference between a store and a radio station is that the store returns the CD's it can't sell to the RIAA (or actually to the record companies, but it is easier to write RIAA), whereas the radio station doesn't get a refund on their license if you stop listening.
So yeah, it is fundamentally different.
"Illegal downloading would pass from being a civil issue to a federal crime."
It wouldn't be a federal crime to evade a state tax, though!
Now if the federal government were to tax downloads...