"Patents can be used to sue people no matter how long they may have violated it with or without the knowledge of patent holder. and IANAL"
Not really true -- except maybe for the IANAL part, I don't have any info either way on that...
There is a concept in the law (U.S. law, at least) called laches -- basically, the law acknowledges that it is simply "unfair" for a patent holder (or any other rights holder, for that matter) to recognize that someone else is doing something wrong, and simply wait until the other guy has racked up damages, or whatever, before suing them. If a rights holder (such as a patent owner) waits too long to sue, he could lose the right to assert that patent against that particular infringer. The infringer could raise a laches defense, and if the court agreed that the patent owner "sat on his rights" for too long, the court could throw the case out.
Now, how long it too long? There isn't a set amount of time, it will depend on the overall "fairness" of the situation. It's not like a statute of limitations, where there is a hard line after which you can't take action -- rather, this is an "equitable" defense, where the court basically says, "yeah, Mr. Patent Holder, you do have a case here, but you waited way to long to bring it, and now it just wouldn't be fair to sue the defendant after all of this time."
An example would be holding a patent, seeing your competitor build an infringing product, and then waiting for 6 or 7 years for the product to take off in the marketplace, then suing once the company has made some money and racked up damages. That would be an example of where laches would come in -- if you wanted to protect your invention, you should have sued when you realized the infringing activity was taking place -- waiting for 6 or 7 years to rack up damages just wouldn't be "fair" to the other guy.
But again, that doesn't mean there is a statute of limitations are anything -- as long as the patent is still valid, you can sue someone who has been infringing for 10 years, as long as you only recently found out about the infringement. And even if you are barred by laches from asserting your patent against one guy, that doesn't mean your patent is invalid -- you can still go after other infringers.
This goes for patents, copyrights, trademarks, etc. It can also apply to torts, breaches of contract, really ANY type of court case -- but in most cases, the statute of limitations will kick in before enough time passes for a laches defense to be successfully raised. However, in certain types of cases, even a very short delay -- a couple of months even -- can be enough to raise a laches defense.
Just a question -- when you buy a box of Corn Flakes, are you concerned with how much the corn farmer gets? Or when you buy a car, how much the designer got paid? I know this is kinda flamebaitish, but it seems like everyone justifies that "CD's are too much" because the artists gets so little of each CD sold -- when in reality, the artists signed a contract agreeing to so much per CD sold -- if they didn't like it, as many others have pointed out, nobody held a gun to their heads to make then sign the contract...
"It costs $15 for a 12-15 Track CD? How is $0.99/song too low? $0.99/song seems about right."
No, you are missing the point. When you buy a CD, you are getting the 12-15 songs at a bulk discount. It's like how a single can of soda costs more than buying the 24-pack!
"On the otherhand if there is a monopoly on the item it can be illigal to bump the price too high."
It depends on why there is a monopoly, and why ther price is being bumped "too high."
The music industry IS a monopoly -- you can only buy the latest U2 CD from a single record label, and that label is free to charge whatever they want for their product. And there is nothing illegal about this. It's like Coke -- Coke is a unique product, there is only one manufacturer, and Coke can charge whatever they want for Coke.
Monopolies get into trouble when they use their market power in certain ways. If they conspire to raise prices to consumers for no reason, they can get into trouble for that. If they lower prices in order to drive out competition from the marketplace ("dumping") they can get into trouble for that. And they can get into trouble for using their market power to keep others from entering the marketplace (that's M$ for you).
"One could argue weither the MPAA is a monopoly, but as its not a essential service it really isn't the governments buisness."
Whether or not something is an essential service is not the test -- it's whether or not a company is using monopoly power (or, more accurately, market power) -- in an anticompetitive fashion to either limit competition or to drive up consumer prices. It has nothing to do with whether or not something is an essential service.
"All in all most people here see rising music prices as a bad idea, and firmly beleive that the industry will lose money on it. But apparently the industry is willing to lose money and point to the P2Ps for blame."
"They sued Napster for downloading stuff they already had vinyl copies of?"
Yeah, that's what they did. And it would have been okay except that Napster was violating pollution-control laws by downloading vinyl. Yeah, that's it.
But, just for the record, the Napster decision essentially foreclosed ALL uploading and downloading of unauthorized music. So no, it didn't specifically say that you couldn't download music for which you already own a vinyl copy -- it did specifically say you can't download copyrighted materials AT ALL.
"If only one recording company owns the rights to the Beatles, then they can charge whatever they want for a copy of a CD."
Yep, that's the way the music industry works. You could say that whichever record company owns the rights to sell Beatles songs holds a "monopoly" on Beatles music -- and therefore there cannot be any price-fixing or other collusion, because there is no competition in the market for Beatles music -- there is only one supplier.
It's like Coke. There is only one supplier for Coke, and they can charge whatever they want for it. The fact that Coke basically costs the same as Pepsi is because of marketing and economics -- not collusion or other anticompetetive behavior. Pepsi and Coke compete in the same market space, but each is a monopoly.
Music, however, is different. If Coke prices got too high, people would start drinking Pepsi for the most part. However, if Britney's CD prices get too high, that doesn't mean that people are going to start buying Cannibal Corpse CD's instead, just because they are cheaper. The products just are that fungible (although it certainly seems that way...).
So yeah, these are monopolys. But monopolies are not illegal, in and of themselves. Misuse of monopoly power is where most monopolies get in trouble, and it is usually when a monopolosit uses its power to drive competetition out of the market in order to raise prices, or uses its power to keep others out of the market, that sort of thing.
But simply having a monopoly -- especially when the monopoly is a "natural" monopoly, like with exclusive recording contracts -- is not in and of itself illegal, or anything to be feared.
Trade groups, though, can run afoul of antitrust laws if they engage in certain types of anticompetetive behavior. The NCAA has been hit with numerous antitrust lawsuits over the years for different things, oftentimes involving TV rights and the like. If trade groups exercise a certain amount of control over the members of the trade group, the group itself may be able to be sued under antitrust laws.
The other problem with the record company as a monopoly (or oligopy) is that each individual company is supplying a unique item. If Britney Spears is signed to Capitol (I don't know, I'm just making an example), only Capitol can sell Britney Spears album (ignoring back catalogs for the time being). So, there is no price fixing per se, because there is no competition. It's not like Capitol and A&M are conspiring to keep Britney Spear's prices high -- they can't be, because A&M cannot sell Britney's albums. Price-fixing and similar conspiracies generally require than manufacturers of the same (or fungible) items or services get together to restrain competition.
If someone sells a unique item, they can generally charge what they want for it -- it's tough to use antitrust laws against people producing unique items or services. Coke and Pepsi are the same price, but not through collusion -- either Coke or Pepsi could set whatever price they wanted for their soda, and there isn't really anything anyone could do about it. That's the tricky part of using antitrust laws against the record companys -- since each company is providing UNIQUE content, they have a lot of flexibility over the pricing. Further, purchasing of Britney's CD over, say, the new Korn CD or something, is not a price-based purchase, so you can't really use laws regulating the limitation of competition if prices on Britney's new CD are too high.
That doesn't mean that the record company cannot behave in an anticompetetive manner -- the music biz has lost some cases in the past -- but it does mean that saying that "the price of a CD is artifically high do to the misuse of monopoly power" may not be entirely, or even partially, correct in all cases.
No, they didn't -- there is nothing legal about sharing tapes made of TV shows. It's okay for YOU to tape something, but it is not okay for you to distribute that tape...
Not only is the spelling waaaay off: "Dallas courts have no presidence..." but the words are wrong as well. Should be "jurisdiction" not "precedence..."
"However, all states have one of some sort that general says no sales are final unless a sign is posted or it is placed on the receipt."
I don't know of any state that has such a law on the books -- if you can point me to one, I'd appreciate it.
California, for example, does have a law that says if you don't accept returns, you have to post a sign saying you don't have to. But they exclude items marked "final" or "as is," and also exempt custom products, used or opened products, and a few other things.
But they don't REQUIRE that refunds be given.
Again, I am unaware of any state codes that require a merchant to give refunds.
"In my state, retailers are required to accept returns if the item is defective."
I pointed that out in my original post. That's true in all states.
"IANAL, but I'm pretty sure that you don't even need a reason to return larger ticket items (such as appliances and cars)."
Although these retail laws vary state to state, there are no states that require a retailer to accept a return for a non-defective item. Some states require a retailer to accept returns IF they have posted signs saying they accept returns, but there are no laws that say a retailer must accept a return absent a store policy to the contrary.
The one exception (in most states) is if a salesman comes to your home and sells you something, most states allow for a 72 hour right of recission in those cases.
If you know of a state law to the contrary, I'd be glad to admit that I am wrong.
"At least, in the UK. Discussions on law on Slashdot always devolve to the point where nobody states their premises and everyone argues conflicting but factually correct viewpoints. I speak, as I always do unless stated otherwise, from the point of view of a resident of the UK. I should maybe set myself a signature that states that (succinctly)."
Point taken. In the U.S., there is no legal obligation to accept a return.
"Running a business requires you to adhere to certain legally mandated levels of customer service."
But there is no LEGAL requirement for a retailer to accept returns, except where the item is defective as sold. Any time a retailer DOES allow you to return something, it is out of the goodness of their heart, and the desire to maintain a good relationship with their customers.
But if they don't want to accept returns, they don't have to.
I never said I was a fan of unrestricted growth -- I like having open spaces and areas where no building is allowed. I live near (a couple of blocks) from open space that developers are trying to open up, and I hope that they fail. (Now, before you call me a hypocrite, the houses in this area are all 40+ years old, so it's not like a new development or antyhing).
I was just commenting on the preception that a lot of people move to California and THEN complain that it is too crowded -- like it wasn't already too crowded BEFORE they arrived. There are a couple of new developments near where I live where the new owners are fighting any MORE development -- it simply appears that for many, once they have "theirs," then that is a good time to limit growth. Not before...
So, apology accepted, but I had no bubble to burst anyway...
Haha. Probably not. One of the problems with the "enviromentalists" here in CA is that you get people who build their dream homes in some pristine area, then as soon as they are done, they immediately want to limit growth "for the environment." Same with people coming into the state -- the state gets "too full" and "too crowded" right after they cross the border into the state.
I think the state is too crowded too, but at least I can bitch with the satisfaction of knowing that I am 3rd generation, born and raised in CA...
Well, since the existing gas taxes are unlikely to disappear if the "per mile" tax is enacted, people with hybrids and other fuel-efficient cars will STILL pay less in taxes than the Hummer drivers out there, but the percentage difference will be less than it is now.
I don't remember the case name right now, but if memory serves, the Supremes have already ruled that you do NOT have a right to privacy when it comes to the location of your car while in public view. I'll have to look that one up later...
There are constitutional issues here -- CA only has the authority to tax things that actually go on within the state borders, with very limited exceptions.
Slashdot Mirror
"Patents can be used to sue people no matter how long they may have violated it with or without the knowledge of patent holder. and IANAL"
Not really true -- except maybe for the IANAL part, I don't have any info either way on that...
There is a concept in the law (U.S. law, at least) called laches -- basically, the law acknowledges that it is simply "unfair" for a patent holder (or any other rights holder, for that matter) to recognize that someone else is doing something wrong, and simply wait until the other guy has racked up damages, or whatever, before suing them. If a rights holder (such as a patent owner) waits too long to sue, he could lose the right to assert that patent against that particular infringer. The infringer could raise a laches defense, and if the court agreed that the patent owner "sat on his rights" for too long, the court could throw the case out.
Now, how long it too long? There isn't a set amount of time, it will depend on the overall "fairness" of the situation. It's not like a statute of limitations, where there is a hard line after which you can't take action -- rather, this is an "equitable" defense, where the court basically says, "yeah, Mr. Patent Holder, you do have a case here, but you waited way to long to bring it, and now it just wouldn't be fair to sue the defendant after all of this time."
An example would be holding a patent, seeing your competitor build an infringing product, and then waiting for 6 or 7 years for the product to take off in the marketplace, then suing once the company has made some money and racked up damages. That would be an example of where laches would come in -- if you wanted to protect your invention, you should have sued when you realized the infringing activity was taking place -- waiting for 6 or 7 years to rack up damages just wouldn't be "fair" to the other guy.
But again, that doesn't mean there is a statute of limitations are anything -- as long as the patent is still valid, you can sue someone who has been infringing for 10 years, as long as you only recently found out about the infringement. And even if you are barred by laches from asserting your patent against one guy, that doesn't mean your patent is invalid -- you can still go after other infringers.
This goes for patents, copyrights, trademarks, etc. It can also apply to torts, breaches of contract, really ANY type of court case -- but in most cases, the statute of limitations will kick in before enough time passes for a laches defense to be successfully raised. However, in certain types of cases, even a very short delay -- a couple of months even -- can be enough to raise a laches defense.
Just a question -- when you buy a box of Corn Flakes, are you concerned with how much the corn farmer gets? Or when you buy a car, how much the designer got paid? I know this is kinda flamebaitish, but it seems like everyone justifies that "CD's are too much" because the artists gets so little of each CD sold -- when in reality, the artists signed a contract agreeing to so much per CD sold -- if they didn't like it, as many others have pointed out, nobody held a gun to their heads to make then sign the contract...
"It costs $15 for a 12-15 Track CD? How is $0.99/song too low? $0.99/song seems about right."
No, you are missing the point. When you buy a CD, you are getting the 12-15 songs at a bulk discount. It's like how a single can of soda costs more than buying the 24-pack!
"On the otherhand if there is a monopoly on the item it can be illigal to bump the price too high."
It depends on why there is a monopoly, and why ther price is being bumped "too high."
The music industry IS a monopoly -- you can only buy the latest U2 CD from a single record label, and that label is free to charge whatever they want for their product. And there is nothing illegal about this. It's like Coke -- Coke is a unique product, there is only one manufacturer, and Coke can charge whatever they want for Coke.
Monopolies get into trouble when they use their market power in certain ways. If they conspire to raise prices to consumers for no reason, they can get into trouble for that. If they lower prices in order to drive out competition from the marketplace ("dumping") they can get into trouble for that. And they can get into trouble for using their market power to keep others from entering the marketplace (that's M$ for you).
"One could argue weither the MPAA is a monopoly, but as its not a essential service it really isn't the governments buisness."
Whether or not something is an essential service is not the test -- it's whether or not a company is using monopoly power (or, more accurately, market power) -- in an anticompetitive fashion to either limit competition or to drive up consumer prices. It has nothing to do with whether or not something is an essential service.
"All in all most people here see rising music prices as a bad idea, and firmly beleive that the industry will lose money on it. But apparently the industry is willing to lose money and point to the P2Ps for blame."
Probably correct.
"They sued Napster for downloading stuff they already had vinyl copies of?"
Yeah, that's what they did. And it would have been okay except that Napster was violating pollution-control laws by downloading vinyl. Yeah, that's it.
But, just for the record, the Napster decision essentially foreclosed ALL uploading and downloading of unauthorized music. So no, it didn't specifically say that you couldn't download music for which you already own a vinyl copy -- it did specifically say you can't download copyrighted materials AT ALL.
"If only one recording company owns the rights to the Beatles, then they can charge whatever they want for a copy of a CD."
Yep, that's the way the music industry works. You could say that whichever record company owns the rights to sell Beatles songs holds a "monopoly" on Beatles music -- and therefore there cannot be any price-fixing or other collusion, because there is no competition in the market for Beatles music -- there is only one supplier.
It's like Coke. There is only one supplier for Coke, and they can charge whatever they want for it. The fact that Coke basically costs the same as Pepsi is because of marketing and economics -- not collusion or other anticompetetive behavior. Pepsi and Coke compete in the same market space, but each is a monopoly.
Music, however, is different. If Coke prices got too high, people would start drinking Pepsi for the most part. However, if Britney's CD prices get too high, that doesn't mean that people are going to start buying Cannibal Corpse CD's instead, just because they are cheaper. The products just are that fungible (although it certainly seems that way...).
So yeah, these are monopolys. But monopolies are not illegal, in and of themselves. Misuse of monopoly power is where most monopolies get in trouble, and it is usually when a monopolosit uses its power to drive competetition out of the market in order to raise prices, or uses its power to keep others out of the market, that sort of thing.
But simply having a monopoly -- especially when the monopoly is a "natural" monopoly, like with exclusive recording contracts -- is not in and of itself illegal, or anything to be feared.
Trade groups, though, can run afoul of antitrust laws if they engage in certain types of anticompetetive behavior. The NCAA has been hit with numerous antitrust lawsuits over the years for different things, oftentimes involving TV rights and the like. If trade groups exercise a certain amount of control over the members of the trade group, the group itself may be able to be sued under antitrust laws.
The other problem with the record company as a monopoly (or oligopy) is that each individual company is supplying a unique item. If Britney Spears is signed to Capitol (I don't know, I'm just making an example), only Capitol can sell Britney Spears album (ignoring back catalogs for the time being). So, there is no price fixing per se, because there is no competition. It's not like Capitol and A&M are conspiring to keep Britney Spear's prices high -- they can't be, because A&M cannot sell Britney's albums. Price-fixing and similar conspiracies generally require than manufacturers of the same (or fungible) items or services get together to restrain competition.
If someone sells a unique item, they can generally charge what they want for it -- it's tough to use antitrust laws against people producing unique items or services. Coke and Pepsi are the same price, but not through collusion -- either Coke or Pepsi could set whatever price they wanted for their soda, and there isn't really anything anyone could do about it. That's the tricky part of using antitrust laws against the record companys -- since each company is providing UNIQUE content, they have a lot of flexibility over the pricing. Further, purchasing of Britney's CD over, say, the new Korn CD or something, is not a price-based purchase, so you can't really use laws regulating the limitation of competition if prices on Britney's new CD are too high.
That doesn't mean that the record company cannot behave in an anticompetetive manner -- the music biz has lost some cases in the past -- but it does mean that saying that "the price of a CD is artifically high do to the misuse of monopoly power" may not be entirely, or even partially, correct in all cases.
But they could go after the downloaders if they wanted to, so maybe he's not being so stupid after all.
"And FYI, if you have the vinyl record, you're allowed to make copies for personal use. "
That is correct.
"You could download that album via P2P and RIAA wouldn't have a leg to stand on against you, if you already owned the release."
That is not correct. RIAA v. Napster.
"legally shared the tape with their friends"
No, they didn't -- there is nothing legal about sharing tapes made of TV shows. It's okay for YOU to tape something, but it is not okay for you to distribute that tape...
Not only is the spelling waaaay off: "Dallas courts have no presidence..." but the words are wrong as well. Should be "jurisdiction" not "precedence..."
"Jesus fucking Christ! You really are under the thumb of your corporate masters, aren't you?"
I guess if you say so. However, my corporate masters are paying me quite well, so it's pretty tolerable under this thumb here...
"However, all states have one of some sort that general says no sales are final unless a sign is posted or it is placed on the receipt."
I don't know of any state that has such a law on the books -- if you can point me to one, I'd appreciate it.
California, for example, does have a law that says if you don't accept returns, you have to post a sign saying you don't have to. But they exclude items marked "final" or "as is," and also exempt custom products, used or opened products, and a few other things.
But they don't REQUIRE that refunds be given.
Again, I am unaware of any state codes that require a merchant to give refunds.
"In my state, retailers are required to accept returns if the item is defective."
I pointed that out in my original post. That's true in all states.
"IANAL, but I'm pretty sure that you don't even need a reason to return larger ticket items (such as appliances and cars)."
Although these retail laws vary state to state, there are no states that require a retailer to accept a return for a non-defective item. Some states require a retailer to accept returns IF they have posted signs saying they accept returns, but there are no laws that say a retailer must accept a return absent a store policy to the contrary.
The one exception (in most states) is if a salesman comes to your home and sells you something, most states allow for a 72 hour right of recission in those cases.
If you know of a state law to the contrary, I'd be glad to admit that I am wrong.
"At least, in the UK. Discussions on law on Slashdot always devolve to the point where nobody states their premises and everyone argues conflicting but factually correct viewpoints. I speak, as I always do unless stated otherwise, from the point of view of a resident of the UK. I should maybe set myself a signature that states that (succinctly)."
Point taken. In the U.S., there is no legal obligation to accept a return.
"Running a business requires you to adhere to certain legally mandated levels of customer service."
But there is no LEGAL requirement for a retailer to accept returns, except where the item is defective as sold. Any time a retailer DOES allow you to return something, it is out of the goodness of their heart, and the desire to maintain a good relationship with their customers.
But if they don't want to accept returns, they don't have to.
I never said I was a fan of unrestricted growth -- I like having open spaces and areas where no building is allowed. I live near (a couple of blocks) from open space that developers are trying to open up, and I hope that they fail. (Now, before you call me a hypocrite, the houses in this area are all 40+ years old, so it's not like a new development or antyhing).
I was just commenting on the preception that a lot of people move to California and THEN complain that it is too crowded -- like it wasn't already too crowded BEFORE they arrived. There are a couple of new developments near where I live where the new owners are fighting any MORE development -- it simply appears that for many, once they have "theirs," then that is a good time to limit growth. Not before...
So, apology accepted, but I had no bubble to burst anyway...
Haha. Probably not. One of the problems with the "enviromentalists" here in CA is that you get people who build their dream homes in some pristine area, then as soon as they are done, they immediately want to limit growth "for the environment." Same with people coming into the state -- the state gets "too full" and "too crowded" right after they cross the border into the state.
I think the state is too crowded too, but at least I can bitch with the satisfaction of knowing that I am 3rd generation, born and raised in CA...
Forgot "good weather" -- that's probably the best part of all!
Yeah, I know their is fog here, but overall -- come on -- where is the weather (on average) better?
Well, since the existing gas taxes are unlikely to disappear if the "per mile" tax is enacted, people with hybrids and other fuel-efficient cars will STILL pay less in taxes than the Hummer drivers out there, but the percentage difference will be less than it is now.
Plus, if you buy a new car, you are exempt from smog inspections for 4 or 6 years, I forget which.
"It would be unfair to pay state taxes for miles you drove somewhere else."
Not only unfair, but unconstitutional.
I don't remember the case name right now, but if memory serves, the Supremes have already ruled that you do NOT have a right to privacy when it comes to the location of your car while in public view. I'll have to look that one up later...
There are constitutional issues here -- CA only has the authority to tax things that actually go on within the state borders, with very limited exceptions.