"What makes this patent particularly vile is that it was filed in 1989 but granted in 1998; this almost certainly constitutes a deliberate abuse of the patent system by Matsushita.
Exactly. And, I'll wager that if you research the patent you'll find that it was held in an 'open' state for a decade and mofidied regularly as advances in technology occured. Typical "submarine patent"."
That's possible, but the time frame for getting a patent issued in Japan is MUCH longer than it is in the U.S. I don't think 7-9 years is out of line for a normal patent application in Japan. Just because something took nearly a decade doesn't mean that there is something nefarious going on -- the JPO is just slow as hell...
"Why isn't there a frivolous patent infringment classification?"
Motion to Dismiss or Motion for Summary Judgment are two ways to get the case taken care of early. Both still require a fair amount of work, because the courts tend not to take someone's word for it that the case is "frivolous." But still, that's how the truely frivolous cases get disposed of -- dismissal or summary judgment.
"Seems trivial to me and even more to people with general knowledge in the area. Thus it is not patentable since it is too trivial."
I'm not too sure that the courts will be impressed with that argument.
"Seems trivial" and the legal standard for "obvious" are two entirely different things.
"Just check the patent law if you want to see that such a thing can't be patentable."
Part of my job is writing and prosecuting patents, so I kinda already have some idea of what the law says. I read the app -- the whole thing (did you?) -- and I didn't see anything wrong with it. If there is prior art, of if the invention is obvious, it'll get rejected by the examiner.
Look, virtually ALL patents applications are published after 18 months -- it doesn't mean anything. Further, the app that is published is the one that is submitted -- if there have already been office actions, then there are likely amendments, changes to the claims, etc., that are not reflacted in the published application. At the 18 month mark, it may not even have HAD its first office action yet, so we have no idea what the actual status is.
Wait until the patent is allowed, or is abandoned -- then you can see what the claims actually ARE, and then you can opine as to the generally worth of the patent office.
At this stage in the game, you can't really say anything except that M$ submitted an application.
Now that's just not true. Patents are for any new and useful invention -- there is no requirement that the invention take significant research, just like there is no guarantee that significant research will lead to something patentable at the end.
And just because something is simple doesn't mean it is obvious.
There are a couple of tests that are used for obviousness -- I don't remember them all off of the top of my head but something is generally considered "nonobviousness" if it meets a "long-felt need," (if there was a need for something, if it was obvious, others would have come up with it already) if it is "successful in the marketplace," or if people are trying to license it, there are a couple of others. Now these are not the patent office's test for obviousness when granting a patent, these are tests that you use after the patent is granted, typically in an infringement case.
But the idea that just because something is simple it is not entitled to a patent is antithetical to the patent system.
Representing number in a different base is not patentable.
Representing numbers in a certain base for the specific purpose of creating a compact addition to a URL to send map coordinates over the internet, well, that justmight be patentable - it's just an app right now, we'll see what happens.
Well, I did preface my examples with the facts that a) I hadn't read them, and b) I just pulled the cases off of West's annotated U.S. code for that particular statute... I've had a 60+ billable week this week putting the finishing touches on a Markman brief, so I didn't spend the time to vet the cases before posting them -- thanks for being gentle!
Interesting stuff there about hackers and the like. This stuff we've been talking about is a bit out of my area, I spend most of my time litigating and prosecuting patents, with a little copyright, a little general commercial lit, and some labor and employment law to spice things up...
Well, I don't have a lot of time to do research today, but here's a couple of notes I found in West's annoted federal code:
""Stolen," as used in National Stolen Property Act, is not term of art and instead is broad in scope with wide ranging meaning. U.S. v. Pre-Columbian Artifacts, N.D.Ill.1993, 845 F.Supp. 544."
I didn't read this case, but my guess is this suggests that the dictionary defintion of "stolen" may not be controlling for the purpose of this statute.
"Proprietary information stolen from telephone company's "911" computer text file was capable of being "stolen, converted or taken by fraud" within meaning of federal statute prohibiting interstate transportation of stolen property. U.S. v. Riggs, N.D.Ill.1990, 739 F.Supp. 414."
Again, I didn't read this case to determine if the test file itself was stolen or not, but this seems to imply that if you simply steal the "information," that enough to be stealing under this section.
The Slashdot crew will like this one:
"Act of duplicating copyrighted aggregations of sounds without authorization constituted "stealing, converting, or taking by fraud," and thus such act could be prosecuted under this section. U.S. v. Sam Goody, Inc., E.D.N.Y.1981, 506 F.Supp. 380, 210 U.S.P.Q. 318."
So there's a case for ya that says copyright infringement can be considered "stealing, converting, or taking by fraud," at least as far as this statute is concerned.
And finally, here's another quote from the same case which also suggests that the act of infringing a copyright is stealing:
"Unauthorized duplicates of copyrighted sound recording were "goods, wares, [or] merchandise," as required for fraudulent taking of such recordings to be violation of this section, even though actual tapes on which such unauthorized duplications of sounds were placed were not stolen. U.S. v. Sam Goody, Inc., E.D.N.Y.1981, 506 F.Supp. 380, 210 U.S.P.Q. 318. "
Anyway, for the purposes of this code section at least, "stealing" appears to have a pretty broad definition, and this guy's theft of the user lists is certainly the type of "proprietary information" that will fall under this statute.
If I understand your question correctly -- and I may not -- you are wondering why you "steal" a trade secret, whereas you "infringe" a copyright, even though both merely take away an "exclusive right." I don't know if that is what you are asking, so I'll simply assume it.
There is a difference between trade secrets and copyrights (and patent and trademarks) that may not be obvious. With Copyrights, patents, and trademarks, you are being given an "extra" right (or extra set of rights) that you don't get with trade secrets. Basically, with trade secrets, you can only protect them as long as they remain secret -- once they are out in the open, that's it, there's nothing left to protect. So the law has made illegal the act of, for lack of a better name, "publicizing" trade secrets, and calls it "stealing" trade secrets, and that makes sense, because you are "stealing" the value of something, and the original owner cannot ever get it back. If the value is in keeping it secret, then once it is not secret, the value is lose, and that is something you have stolen from the owner. So we call taking a trade secret a "theft."
Now, copyrights and like are different -- here, they are already out in the public -- that's the bargain you make with the government to get the protections in the first place -- and so we have the governmentally-imposed rights that we give the holder of the copyright. Generally, whenever someone is interfering with someone elses "rights," we call that "infringment" -- you can infringe someone's right to control distribution of a copyright, but you can also infringe on someone right to life, liberty, and pursuit of happiness as well. It's not the same as a theft of a trade secret -- even after an infringement, you still have something of value, so we call it infringement of a copyright instead of theft of a copyright (which could still happen in certain circumstances, but would involve stealing the right to enforce the rights, not the rights themselves).
Now, before everyone jumpsd in and says "hey, he just said copyright infringement isn't stealing," you need to be careful here. I said that copyright infringement didn't mean that you stole the copyright holder's rights to control his work -- you just "infringed" on them. What you have stolen is the economic value of the sale to you, and to anyone else who gets a copy of your infringing copy. I know, you'll say, "but I wouldn't buy it anyway," but you DON'T know that for a fact probably even for yourself, and certainly not for everyone else sharing from your copy. Even though YOUR infringement may not have "stolen" the economic value of a complete copy of the work from the copyright holder,your infringement HAS stolen some economic value, even if it is small and hard to quantify, and THAT IS stealing, no matter how you slice it.
I know I'm not going to be able to convinve anyone otherwise, but at least I made may arguments.
"Now that I ponder the question, I believe a complaint stating infringement of a trade secret would be sufficient to meet notice pleading requirements under federal rules."
That's probably true, but, unlike patent, copyright and federally-registered trademark infringment actions, trade secret actions are generally taken up in state court, which is why I suggested that YMMV.
But you are right, I wasn't very clear -- I was discussing the realities of a legal action, and not what the "definitions" really mean, or whether or not "stealing" a nontangible object is "stealing."
It doesn't matter what the dictionary says. If you go down to the court and file an action for "whatever" of a trade secret, the court will accept "theft of a trade secret" or "misappropriation of a trade secret." "Infringement" of a trade secret is not a recognized cause of action in any jurisdiction I am aware of.
My assertion may be "unfounded" based on whatever dictionary you used, but it is not "unfounded" based on my experience with trade secret law.
"Also, in the US, it's been determined that a "database" is copyrightable, which makes it a form of property, even if it's developed 1:1 from public domain data."
Are you sure about that? I am not aware of any case that makes a general database of public domain data copyrightable. In fact, the leading case in this area is Feist v. Rural Telephone, where one company got the other guy's phone book, copied all of the info, and published their own phonebook, and the Supremes held it to be not copyright infringement, and that the first guy did not have a property right in the collection of public domain data.
Now, if there is some sort of selection of who gets in the database that is "creative" and more than just some sort of mathematical algorithm or random chance, then the list of "what" is in the database might be protectable under copyright, but the public domain information still would not be, as you alluded to in your post.
No. But what they do if they levy a fine against someone is that they don't let them get off of probation (or off parole if they are coming out of prison) until the debt is paid off.
"providing no protection against wrongful termination of employment"
Well, that's not completely true. We in the U.S. do have protections against wrongful termination -- its just that we have defined wrongful termination to be limited to a firing for membership in a protected class, or for exercising a protected right. We have not defined wrongful termination as "not good cause," and I think that's where the difference is.
"...you realize that anyone can sue anyone for anything at the drop of a hat (obviously you have to have some stated grounds for the suit but asserting, however speciously, that you were fired because of your gender, say, would be such grounds). Also, I'm sure you're aware that juries are often sympathetic to individuals over corporations. "
Of course I agree with this -- but the reality is, if you are not fired for one of the "protected" reasons given above, if you DID bring a suit for wrongful termination, it would be thrown out before it ever saw a jury, because the plaintiff would have no cause of action.
"So... while companies don't have to document things in order for it to *actually* be a legal firing, they almost always do in order to preserve the *appearance* of it being a legal filing."
They almost certainly do that in the case where the person being fired is a member of a protected class, in which case they do face the very real prospect of getting sued, or at least facing an investigation from whatever state's labor board.
But there really isn't any reason to do so if the person you are firing is a young white male christian...
"To the extent that any employment contract agrees than an employee surrenders any inalienable right (such as his right to walk off the job), the contract is illegal and can not be enforced."
An employee who signs such a contract is NOT giving up an inalienable right -- but he may have to pay a penalty for exercising that right under contract law.
I don't understand why you are having a tough time with this. Nobody forces an employee to sign an employment contract -- if they did, it would be void due to duress. But assuming no gun is involved, why can't an employee decide that the free exercise of a right (such as the right to walk away from a job at anytime without penalty) is not worth as much to him as is said employment contract? As long as such a contract involves a bargained-for exchange of promises, then there is no reason to believe the contract is illegal.
"But no punitive damages could ever be rewarded."
Punitive damages are basically forbidden in breach of contract cases anyway. U.S. law treats breach of contract as a business decision -- no "moral" characteristics that deserve "punishment" are involved, so no punitive damages.
"I've never heard of people working without a contract. That is more like panhandling or busking."
Very few employees in the U.S. work under an employment contract.
"every normal employment relationship has an "Agreement". An agreement may be merely verbal, but the agreement exists."
But an "agreement" is not a contract. And besides, how do you later prove in court the existance and substance of a verbal agreement?
"The question I have. In the 49 or so "fire-at-will" states. Is there a law on the books which actually grants employers the right to "fire-at-will" or is this simply something that employers CLAIM to have, and no one has fought?"
I can't speak for every state, but here is the California law, from the California Labor Code:
2922. An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.
2926. An employee who is not employed for a specified term and who is dismissed by his employer is entitled to compensation for services rendered up to the time of such dismissal.
2927. An employee who is not employed for a specified term and who quits the service of his employer is entitled to compensation for services rendered up to the time of such quitting.
And just for completeness, "notice" above means saying "you're fired" or:I quit" -- it does not imply a time frame.
Now, if the employment WAS for a term of service, THEN you are talking about a situation where there IS an employment contract, and at-will is no longer the rule.
But virtually all regular employees in the U.S. work without an employment contract.
"A state is free to grant "the right to fire", as this is merely a modification of property law. Rendering the contract invalid in so far as it implied a perpetual obligation on either side. However I would argue that unless a state explicitly grants the right of "at-will termination", then common property law says neither side can abscond, (without penalty) and constitutional law (which takes precedence) says, notwithstanding common law, the employee can always walk off the job and can not tranfer his right to walk off the job."
When I said "flip side" I wasn't invoking property law of slavery or anything, I was talking about contract law. If you have a contract, then BOTH sides have obligations, and if either side breaks those obligations, they are in breach of the contract.
Even if you had an employment contract, you could still leave at any time -- you are right, the employer cannot force you to work, that would be slavery -- but you WILL have consequences for the breach of contract.
So, when you don't have a contract, you are free to leave, the employer is free to fire you, without legal consequences.
Very, very few jobs in the U.S. outside of union jobs and certain skilled professional services (like actors,musicians and professional athletes) have real, enforceable employment contract -- it's just the way things are in the U.S. The down side is that the employer can fire you pretty much whenever (see other posts in this thread) -- the plus side is that you can freely move whenever you want.
No, in the U.S., they can fire you immediately. The laws vary from state to state, but in California, for example, if you are fired, you have to be given your final paycheck within a certain period of time (3 days, I think), along with payment for accrued but unused vacation time. This type of stuff varies depending on what state you are in, but the "at-will" nature of employment means you can be fired at any time -- even right now!
Well, IAAL, and the fact is, unless you are a member of a protected class, have exercised some protected right, or have an employement contract, you can fired for any reason at all, or even no reason whatsoever.
What encompasses "membership in a protected class" or "exercised a protected right" may be different from state-to-state -- for example, in California, "sexual preference" is a state protected class, but is not a protected class at the federal level, and not in most states.
Now, if an employer fires you for any reason other than what is considered a "good cause" under your state's unemployement laws, then you can collect unemployement, so a company may try and hold off firing you until they can meet the "good cause" requirements under their particular state's unemployment laws, in order to deny you unemployment -- but they can still fire you for any reason, good or bad, or no reason at all, expect for the certain protected classes listed above.
And company policies really have nothing to do with this. They can sometimes be used to show "implied contracts" of one sort of another, usually with respect to vacation pay and the like, but they are generally not legal documents in the sense that firing someone without taking all of the necessary steps written in the employment manual changes a lawful firing into an unlawful firing.
I think your professor was probably right -- change "bad reasons" to the list I gave above, and then you are right on.
"However, most people don't realize that your company policies may alter the at-will status. For example, does your company have an "introductory period," where, for the intro period, where after 3 months, your job is somehow safer. The courts have ruled that this creates an implied contract... so if you're suddenly terminated, check your companies policies!"
The rules for creating an implied contract vary from state to state, but in general, it's pretty tough to "accidently" form an employments contract -- even a simple "this does not create an employment contract" disclaimer is almost alsways sufficient to defeat any claim of impied contract.
"sooner or later, they'll find a way to get rid of you without you getting wrongful termination."
I agree with this post, but I just thought I would point something out here. Every state, except Montana, is an at-will employment state. What that means is that unless you have an employment CONTRACT, and not just an offer letter and the like (pro athletes have contracts, most others don't), your employer can fire you at ANY time for ANY reason at all (with the exception of certain prohibited reasons, like firing you because of your race, national origin, that sort of thing). So, you could go to work today, and your employer could fire you for wearing a red shirt. Or fire you just because he couldn't get it up with the wife last night.
Wrongful termination means being fired for whistleblowing, or for using your FMLA or other leave rights, being fired after exercising some other protected right (like making an OSHA complaint), or being fired because of your membership in a protected class (race, gender, national origin, religon, age if over 40, there's a couple of others I can't remember off of the top of my head). ANY other firing, by definition, is not "wrongful termination."
So, they don't NEED the evidence to fire you. They may WANT the evidence because of some internal reasons, but there is no LEGAL reason to obtain the evidence. You can ALWAYS be fired for just about anything.
Of course, you can quit whenever you want to -- that's the flip side of at-will -- they can't make you keep working if you don't want to.
Slashdot Mirror
"What makes this patent particularly vile is that it was filed in 1989 but granted in 1998; this almost certainly constitutes a deliberate abuse of the patent system by Matsushita.
Exactly. And, I'll wager that if you research the patent you'll find that it was held in an 'open' state for a decade and mofidied regularly as advances in technology occured. Typical "submarine patent"."
That's possible, but the time frame for getting a patent issued in Japan is MUCH longer than it is in the U.S. I don't think 7-9 years is out of line for a normal patent application in Japan. Just because something took nearly a decade doesn't mean that there is something nefarious going on -- the JPO is just slow as hell...
"Why isn't there a frivolous patent infringment classification?"
Motion to Dismiss or Motion for Summary Judgment are two ways to get the case taken care of early. Both still require a fair amount of work, because the courts tend not to take someone's word for it that the case is "frivolous." But still, that's how the truely frivolous cases get disposed of -- dismissal or summary judgment.
"Seems trivial to me and even more to people with general knowledge in the area. Thus it is not patentable since it is too trivial."
I'm not too sure that the courts will be impressed with that argument.
"Seems trivial" and the legal standard for "obvious" are two entirely different things.
"Just check the patent law if you want to see that such a thing can't be patentable."
Part of my job is writing and prosecuting patents, so I kinda already have some idea of what the law says. I read the app -- the whole thing (did you?) -- and I didn't see anything wrong with it. If there is prior art, of if the invention is obvious, it'll get rejected by the examiner.
Look, virtually ALL patents applications are published after 18 months -- it doesn't mean anything. Further, the app that is published is the one that is submitted -- if there have already been office actions, then there are likely amendments, changes to the claims, etc., that are not reflacted in the published application. At the 18 month mark, it may not even have HAD its first office action yet, so we have no idea what the actual status is.
Wait until the patent is allowed, or is abandoned -- then you can see what the claims actually ARE, and then you can opine as to the generally worth of the patent office.
At this stage in the game, you can't really say anything except that M$ submitted an application.
"For the complicated stuff that takes research."
Now that's just not true. Patents are for any new and useful invention -- there is no requirement that the invention take significant research, just like there is no guarantee that significant research will lead to something patentable at the end.
And just because something is simple doesn't mean it is obvious.
There are a couple of tests that are used for obviousness -- I don't remember them all off of the top of my head but something is generally considered "nonobviousness" if it meets a "long-felt need," (if there was a need for something, if it was obvious, others would have come up with it already) if it is "successful in the marketplace," or if people are trying to license it, there are a couple of others. Now these are not the patent office's test for obviousness when granting a patent, these are tests that you use after the patent is granted, typically in an infringement case.
But the idea that just because something is simple it is not entitled to a patent is antithetical to the patent system.
Representing number in a different base is not patentable.
Representing numbers in a certain base for the specific purpose of creating a compact addition to a URL to send map coordinates over the internet, well, that justmight be patentable - it's just an app right now, we'll see what happens.
Well, I did preface my examples with the facts that a) I hadn't read them, and b) I just pulled the cases off of West's annotated U.S. code for that particular statute... I've had a 60+ billable week this week putting the finishing touches on a Markman brief, so I didn't spend the time to vet the cases before posting them -- thanks for being gentle!
Interesting stuff there about hackers and the like. This stuff we've been talking about is a bit out of my area, I spend most of my time litigating and prosecuting patents, with a little copyright, a little general commercial lit, and some labor and employment law to spice things up...
Enjoy your rocking chair...
Well, I don't have a lot of time to do research today, but here's a couple of notes I found in West's annoted federal code:
""Stolen," as used in National Stolen Property Act, is not term of art and instead is broad in scope with wide ranging meaning. U.S. v. Pre-Columbian Artifacts, N.D.Ill.1993, 845 F.Supp. 544."
I didn't read this case, but my guess is this suggests that the dictionary defintion of "stolen" may not be controlling for the purpose of this statute.
"Proprietary information stolen from telephone company's "911" computer text file was capable of being "stolen, converted or taken by fraud" within meaning of federal statute prohibiting interstate transportation of stolen property. U.S. v. Riggs, N.D.Ill.1990, 739 F.Supp. 414."
Again, I didn't read this case to determine if the test file itself was stolen or not, but this seems to imply that if you simply steal the "information," that enough to be stealing under this section.
The Slashdot crew will like this one:
"Act of duplicating copyrighted aggregations of sounds without authorization constituted "stealing, converting, or taking by fraud," and thus such act could be prosecuted under this section. U.S. v. Sam Goody, Inc., E.D.N.Y.1981, 506 F.Supp. 380, 210 U.S.P.Q. 318."
So there's a case for ya that says copyright infringement can be considered "stealing, converting, or taking by fraud," at least as far as this statute is concerned.
And finally, here's another quote from the same case which also suggests that the act of infringing a copyright is stealing:
"Unauthorized duplicates of copyrighted sound recording were "goods, wares, [or] merchandise," as required for fraudulent taking of such recordings to be violation of this section, even though actual tapes on which such unauthorized duplications of sounds were placed were not stolen. U.S. v. Sam Goody, Inc., E.D.N.Y.1981, 506 F.Supp. 380, 210 U.S.P.Q. 318. "
Anyway, for the purposes of this code section at least, "stealing" appears to have a pretty broad definition, and this guy's theft of the user lists is certainly the type of "proprietary information" that will fall under this statute.
If I understand your question correctly -- and I may not -- you are wondering why you "steal" a trade secret, whereas you "infringe" a copyright, even though both merely take away an "exclusive right." I don't know if that is what you are asking, so I'll simply assume it.
There is a difference between trade secrets and copyrights (and patent and trademarks) that may not be obvious. With Copyrights, patents, and trademarks, you are being given an "extra" right (or extra set of rights) that you don't get with trade secrets. Basically, with trade secrets, you can only protect them as long as they remain secret -- once they are out in the open, that's it, there's nothing left to protect. So the law has made illegal the act of, for lack of a better name, "publicizing" trade secrets, and calls it "stealing" trade secrets, and that makes sense, because you are "stealing" the value of something, and the original owner cannot ever get it back. If the value is in keeping it secret, then once it is not secret, the value is lose, and that is something you have stolen from the owner. So we call taking a trade secret a "theft."
Now, copyrights and like are different -- here, they are already out in the public -- that's the bargain you make with the government to get the protections in the first place -- and so we have the governmentally-imposed rights that we give the holder of the copyright. Generally, whenever someone is interfering with someone elses "rights," we call that "infringment" -- you can infringe someone's right to control distribution of a copyright, but you can also infringe on someone right to life, liberty, and pursuit of happiness as well. It's not the same as a theft of a trade secret -- even after an infringement, you still have something of value, so we call it infringement of a copyright instead of theft of a copyright (which could still happen in certain circumstances, but would involve stealing the right to enforce the rights, not the rights themselves).
Now, before everyone jumpsd in and says "hey, he just said copyright infringement isn't stealing," you need to be careful here. I said that copyright infringement didn't mean that you stole the copyright holder's rights to control his work -- you just "infringed" on them. What you have stolen is the economic value of the sale to you, and to anyone else who gets a copy of your infringing copy. I know, you'll say, "but I wouldn't buy it anyway," but you DON'T know that for a fact probably even for yourself, and certainly not for everyone else sharing from your copy. Even though YOUR infringement may not have "stolen" the economic value of a complete copy of the work from the copyright holder,your infringement HAS stolen some economic value, even if it is small and hard to quantify, and THAT IS stealing, no matter how you slice it.
I know I'm not going to be able to convinve anyone otherwise, but at least I made may arguments.
Looks like we are on the same page now.
"Now that I ponder the question, I believe a complaint stating infringement of a trade secret would be sufficient to meet notice pleading requirements under federal rules."
That's probably true, but, unlike patent, copyright and federally-registered trademark infringment actions, trade secret actions are generally taken up in state court, which is why I suggested that YMMV.
But you are right, I wasn't very clear -- I was discussing the realities of a legal action, and not what the "definitions" really mean, or whether or not "stealing" a nontangible object is "stealing."
It doesn't matter what the dictionary says. If you go down to the court and file an action for "whatever" of a trade secret, the court will accept "theft of a trade secret" or "misappropriation of a trade secret." "Infringement" of a trade secret is not a recognized cause of action in any jurisdiction I am aware of.
My assertion may be "unfounded" based on whatever dictionary you used, but it is not "unfounded" based on my experience with trade secret law.
"This is untrue. "
I guess I should have been more clear. What I said is true, just not in every state.
Clearly, WA is not one of the states where it is true.
"He infringed a trade secret"
You can't infringe a trade secret. You can steal a trade secret, you can misappropriate a trade secret, but you can't infringe a trade secret.
Slashdot: If it's not a tangible object that someone else can be deprived the use of, it's not property!
U.S. Courts, U.S. Law: If the law says its property, its property.
That's why the courts come up with all of these crazy rulings that slashdotter's just can't seem to get their heads around...
"Also, in the US, it's been determined that a "database" is copyrightable, which makes it a form of property, even if it's developed 1:1 from public domain data."
Are you sure about that? I am not aware of any case that makes a general database of public domain data copyrightable. In fact, the leading case in this area is Feist v. Rural Telephone, where one company got the other guy's phone book, copied all of the info, and published their own phonebook, and the Supremes held it to be not copyright infringement, and that the first guy did not have a property right in the collection of public domain data.
Now, if there is some sort of selection of who gets in the database that is "creative" and more than just some sort of mathematical algorithm or random chance, then the list of "what" is in the database might be protectable under copyright, but the public domain information still would not be, as you alluded to in your post.
No. But what they do if they levy a fine against someone is that they don't let them get off of probation (or off parole if they are coming out of prison) until the debt is paid off.
"providing no protection against wrongful termination of employment"
Well, that's not completely true. We in the U.S. do have protections against wrongful termination -- its just that we have defined wrongful termination to be limited to a firing for membership in a protected class, or for exercising a protected right. We have not defined wrongful termination as "not good cause," and I think that's where the difference is.
"...you realize that anyone can sue anyone for anything at the drop of a hat (obviously you have to have some stated grounds for the suit but asserting, however speciously, that you were fired because of your gender, say, would be such grounds).
Also, I'm sure you're aware that juries are often sympathetic to individuals over corporations. "
Of course I agree with this -- but the reality is, if you are not fired for one of the "protected" reasons given above, if you DID bring a suit for wrongful termination, it would be thrown out before it ever saw a jury, because the plaintiff would have no cause of action.
"So... while companies don't have to document things in order for it to *actually* be a legal firing, they almost always do in order to preserve the *appearance* of it being a legal filing."
They almost certainly do that in the case where the person being fired is a member of a protected class, in which case they do face the very real prospect of getting sued, or at least facing an investigation from whatever state's labor board.
But there really isn't any reason to do so if the person you are firing is a young white male christian...
"To the extent that any employment contract agrees than an employee surrenders any inalienable right (such as his right to walk off the job), the contract is illegal and can not be enforced."
:I quit" -- it does not imply a time frame.
An employee who signs such a contract is NOT giving up an inalienable right -- but he may have to pay a penalty for exercising that right under contract law.
I don't understand why you are having a tough time with this. Nobody forces an employee to sign an employment contract -- if they did, it would be void due to duress. But assuming no gun is involved, why can't an employee decide that the free exercise of a right (such as the right to walk away from a job at anytime without penalty) is not worth as much to him as is said employment contract? As long as such a contract involves a bargained-for exchange of promises, then there is no reason to believe the contract is illegal.
"But no punitive damages could ever be rewarded."
Punitive damages are basically forbidden in breach of contract cases anyway. U.S. law treats breach of contract as a business decision -- no "moral" characteristics that deserve "punishment" are involved, so no punitive damages.
"I've never heard of people working without a contract. That is more like panhandling or busking."
Very few employees in the U.S. work under an employment contract.
"every normal employment relationship has an "Agreement". An agreement may be merely verbal, but the agreement exists."
But an "agreement" is not a contract. And besides, how do you later prove in court the existance and substance of a verbal agreement?
"The question I have. In the 49 or so "fire-at-will" states. Is there a law on the books which actually grants employers the right to "fire-at-will" or is this simply something that employers CLAIM to have, and no one has fought?"
I can't speak for every state, but here is the California law, from the California Labor Code:
2922. An employment, having no specified term, may be terminated at
the will of either party on notice to the other. Employment for a
specified term means an employment for a period greater than one
month.
2926. An employee who is not employed for a specified term and who
is dismissed by his employer is entitled to compensation for services
rendered up to the time of such dismissal.
2927. An employee who is not employed for a specified term and who
quits the service of his employer is entitled to compensation for
services rendered up to the time of such quitting.
And just for completeness, "notice" above means saying "you're fired" or
Now, if the employment WAS for a term of service, THEN you are talking about a situation where there IS an employment contract, and at-will is no longer the rule.
But virtually all regular employees in the U.S. work without an employment contract.
"A state is free to grant "the right to fire", as
this is merely a modification of property law. Rendering the contract invalid in so far as it implied a perpetual obligation on either side. However I would argue that unless a state explicitly grants the right of "at-will termination",
then common property law says neither side can abscond, (without penalty) and constitutional law (which takes precedence) says, notwithstanding common law, the employee can always walk off the job and can not tranfer his right to walk off the job."
When I said "flip side" I wasn't invoking property law of slavery or anything, I was talking about contract law. If you have a contract, then BOTH sides have obligations, and if either side breaks those obligations, they are in breach of the contract.
Even if you had an employment contract, you could still leave at any time -- you are right, the employer cannot force you to work, that would be slavery -- but you WILL have consequences for the breach of contract.
So, when you don't have a contract, you are free to leave, the employer is free to fire you, without legal consequences.
Very, very few jobs in the U.S. outside of union jobs and certain skilled professional services (like actors,musicians and professional athletes) have real, enforceable employment contract -- it's just the way things are in the U.S. The down side is that the employer can fire you pretty much whenever (see other posts in this thread) -- the plus side is that you can freely move whenever you want.
No, in the U.S., they can fire you immediately. The laws vary from state to state, but in California, for example, if you are fired, you have to be given your final paycheck within a certain period of time (3 days, I think), along with payment for accrued but unused vacation time. This type of stuff varies depending on what state you are in, but the "at-will" nature of employment means you can be fired at any time -- even right now!
Well, IAAL, and the fact is, unless you are a member of a protected class, have exercised some protected right, or have an employement contract, you can fired for any reason at all, or even no reason whatsoever.
What encompasses "membership in a protected class" or "exercised a protected right" may be different from state-to-state -- for example, in California, "sexual preference" is a state protected class, but is not a protected class at the federal level, and not in most states.
Now, if an employer fires you for any reason other than what is considered a "good cause" under your state's unemployement laws, then you can collect unemployement, so a company may try and hold off firing you until they can meet the "good cause" requirements under their particular state's unemployment laws, in order to deny you unemployment -- but they can still fire you for any reason, good or bad, or no reason at all, expect for the certain protected classes listed above.
And company policies really have nothing to do with this. They can sometimes be used to show "implied contracts" of one sort of another, usually with respect to vacation pay and the like, but they are generally not legal documents in the sense that firing someone without taking all of the necessary steps written in the employment manual changes a lawful firing into an unlawful firing.
I think your professor was probably right -- change "bad reasons" to the list I gave above, and then you are right on.
"However, most people don't realize that your company policies may alter the at-will status. For example, does your company have an "introductory period," where, for the intro period, where after 3 months, your job is somehow safer. The courts have ruled that this creates an implied contract... so if you're suddenly terminated, check your companies policies!"
The rules for creating an implied contract vary from state to state, but in general, it's pretty tough to "accidently" form an employments contract -- even a simple "this does not create an employment contract" disclaimer is almost alsways sufficient to defeat any claim of impied contract.
So it's not something you want to rely on...
You don't have free speech rights at work, though -- unless you work for the government.
"sooner or later, they'll find a way to get rid of you without you getting wrongful termination."
I agree with this post, but I just thought I would point something out here. Every state, except Montana, is an at-will employment state. What that means is that unless you have an employment CONTRACT, and not just an offer letter and the like (pro athletes have contracts, most others don't), your employer can fire you at ANY time for ANY reason at all (with the exception of certain prohibited reasons, like firing you because of your race, national origin, that sort of thing). So, you could go to work today, and your employer could fire you for wearing a red shirt. Or fire you just because he couldn't get it up with the wife last night.
Wrongful termination means being fired for whistleblowing, or for using your FMLA or other leave rights, being fired after exercising some other protected right (like making an OSHA complaint), or being fired because of your membership in a protected class (race, gender, national origin, religon, age if over 40, there's a couple of others I can't remember off of the top of my head). ANY other firing, by definition, is not "wrongful termination."
So, they don't NEED the evidence to fire you. They may WANT the evidence because of some internal reasons, but there is no LEGAL reason to obtain the evidence. You can ALWAYS be fired for just about anything.
Of course, you can quit whenever you want to -- that's the flip side of at-will -- they can't make you keep working if you don't want to.
Just wanted to point that out...