What is scary here is the cooperation of Verisign. In this case, Verisign maintains the registry for.com. But Verisign also still operates the 0 Root servers under contract to the Dept. of Commerce. So, if they wanted to (or were ordered to by the U.S. Govt) they could "technically" take out an entire TLD, including a ccTLD like.ru or.cn.
"Technically" is in quotes because the realities of the root servers would make it easy for the rest of the world to tell the U.S. to go screw at that point, and stop syncing the dozens of root servers that are distributed around the world off of the Verisign "corrupted" servers. However, it would be the end of the canonical DNS system as we know it.
AFAIK, the engineers at Verisign who handle root server issues try very very hard to stay out of any type of corporate shenanigans, but at the end of the day Verisign operates those servers, and Verisign is a U.S. Company, on U.S. soil, with executives who are very much subject to the immediate coercion of the U.S. Government.
It is not a "spy" plane, it is a "surveillance" plane. Ever since the 2001 Hainan Island incident this mistake has really irked me. The Chinese used it as a rhetorical club to beat us with when GWB chickened out and let them chop up our plane and imprison our crew.
A "spy" plane would be one that is designed/intended to escape detection and/or interception while conducting surveillance in places it has no right to be (such as the U2 and SR-71 or the Global Hawk). During the cold war, the Soviet Union consistently protested our overflights of their territory with the U2 and SR71, and sought (and once succeeded) to shoot them down, as was their right. Those were "spy" planes, and Francis Gary Powers was, technically, a "spy."
The JSTARS E-8 and the Hainan EP-3E are both military versions of the Boeing 707 -- they aren't designed to hide from or evade anyone trying to see and/or catch them. They are big obvious platforms that fly in neutral territory (or over an actively declared battle zone when we have air dominance) and provide surveillance and other capability. They aren't hiding or trying to deceive anyone.
First, the quote was from the Declaration of Independence, a document that preceded the U.S. Constitution by more than a decade, was purely symbolic in nature -- which is to say, it has almost zero application in the law of the United States of America.
What both of you are trying to recall from your ancient civics classes is the Fifth Amendment (part of the Bill of Rights, passed 2 years after the Constitution), which reads (in relevant part):
No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . ..
Whether or not coercing someone to unlock the chest where they put their confession is the same as forcing them to incriminate themselves is a tricky and unsettled question of law that we (the Yanks) are still working on. (Whether the coercion is beating them with a $5 wrench, or putting them in prison indefinitely for "contempt", the principle is the same.)
Your meta-point is quite true, however - the creation and protection of such individual rights in conflicts with the State was the fundamental schism that led North America to diverge from the previously (fairly homogenous) Anglo/European civilization about 200 years ago. Now build some Settler[early game]/Armor units[late game] and get out there and spread the word to the rest of the map.
As an attorney, reading this question invokes the same reactions that many of the/. crowd would have if I started trying to opine on the technical failings that would allow our mythical vandals to reprogram the hypothetical robot.
Not to get too technical, but just because you sue the company doesn't mean you win. The liability insurance that even the smallest companies carry would cover the legal costs of having such a suit dismissed. (For the technically inclined, look up comparative negligence and the proverbial "intervening bad actor").
The homeowner (the ones suing) would probably be found more responsible for not following basic security etc.
As others have pointed out, software companies have long been given practically a free ride in harm caused by poorly written software. First, they have been allowed to disclaim the standard warranties of fitness and function. This is akin to buying a car that the manufacturer won't promise to actually work or be safe. If Ford told you that they wouldn't guarantee that pressing the brake pedal actually engaged the brakes, would you drive that car? Yet every piece of commercial software we use specifically says that there is no promise that it will work at all, or do what the purchaser wants.
Here is a counter hypothetical (more realistic as it has actually happened). A relative dies in a plane crash. The FAA investigation conclusively shows that the accident was caused by a bug in one of the key computer systems. Should you sue: the airline? The manufacturer (boeing/airbus)? The subcontractor that wrote the software?
The answer is, you sue the airline, and the system is set up so that anything you win from them, they can then sue to recover from the party up the chain. Thus, everyone's liability is ultimately apportioned according to their degree of fault (note, yes it is a gross simplification). This is why people writing software for critical systems (ones where a failure can cause property damage or injury) need a good lawyer to write their contracts/licenses. They law has allowed programmers to avoid their responsibilties for a long time, so if a sw company doesn't take advantage of that, it is their own fault.
Consider, there is no educational or professional certification required to write and sell software that controls an infant incubator used in an NICU, but you need a government license to drive to the store. Programmers and engineers have been getting a sweet deal in liability for years, so it's awesome to hear them still complaining.
I completely agree that this is marketing fodder by Unisys. But it is also corporatism that will prevent this from ever happening. Logistically, it would not be that difficult to shut off the internet for 95% of Americans. First, there are a finite number of physical cable trunks entering and leaving the U.S., and the FCC knows all about where each and every one of them comes ashore. The number of companies with independent inter-city backbone capacity is probably fewer than 10. (Level 3, AT&T, Verizon, ???). But, the fact remains that each of those networks -- no matter how regulated -- is the property of a corporation that has every incentive to protect its property from undue government control. These are the interests (with deep pockets) that will finance the 5th amendment litigation that would ultimately apply the Constitution.
The two things I worry about more is (1) the individual rights with no corporate interest to back them, and (2) when corporations aid and abet the government's violation of those individual rights (e.g. turning over vast amounts of consumer data for government data mining, or allowing the government to tap your customers without a warrant, etc. etc.)
As soon as the government puts a "kill switch" on the current network, someone will have a strong incentive to build a new one the government can't kill without physical violence. Information wants to be free, and the internet is beyond the power of even the U.S. government to ever contain.
Yes, that is all well and good, but you need to read the actual 'promise' before you leap to conclusions. It is (in my opinion) somewhat vague. For example, they promise not to assert "necessary claims", which are defined as:
those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the required portions (which also include the required elements of optional portions) of the Covered Specification that are described in detail and not those merely referenced in the Covered Specification.
Of course, anyone who thinks they can "design-around" a patent will claim that the patent is not actually "necessary" to the desired function. In order to enjoy this "promise" you have to confess that the only way to achieve the standard is to infringe on a valid MS patent.
Another potentially worrying point is this exception:
If you file, maintain, or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of any Covered Specification, then this personal promise does not apply with respect to any Covered Implementation made or used by you.
So..., anyone who even "participates" in a patent suit against MS (including, presumably, a patent suit filed by MS), loses protection for not only their own products, but anything they "use." For example, if FSF got into a dust-up with MS, MS could still claim infringement by FSF (or anyone else) for using Mono, even though MS has chosen not to pursue the authors of Mono or other Mono users. Referring to it as a "personal promise" also calls into question its applicability to businesses/organizations.
I am being overly paranoid, but the fact is, like so many other legal "promises", the value of this one will only be seen in the implementation. As a cynical lawyer, I don't see anything here that absolutely precludes MS from asserting infringement by Mono or any other OSS project. If Microsoft truly wanted to be benevolent they could easily make a much broader promise with less grey area. For example, they could name the patents that they claim to cover the specs in question and offer royalty free licensing, or make a non-assert pledge with some actual teeth. All they are saying here is "we probably, maybe won't sue you unless we do."
Some (not all) of the blame must be allocated to local governments. There is absolutely no shortage of bandwidth on the internet backbone (intercity) networks -- all of the bottleneck is in the last mile. While two of the largest corporations in the US (Verizon and AT&T) are trying to run last-mile fiber, they are significantly impeded by the need to deal with local governments that have monopoly control over the public rights of way (PROW) -- i.e., the street in front of your house. In 1996 Congress made a half hearted attempt at dealing with this problem by mandating that local governments get out of the way of telecommunications companies (see, 47 U.S.C. s253), but two things have prevented that from leading to better broadband service. First, the cities derive a ton of "free" revenue from charging for access to the PROW (free in the sense that it is collected from someone who cannot vote the local politicians out of office), so they have essentially ignored the law until they actually lose a lawsuit, which is highly inefficient and time consuming (I know that because I am an attorney who has litigated those cases). Second, because Verizon and AT&T (and, presumably any others who would try to build FttH) plan on offering video services, their networks have been classified as cable TV, not "telecommunications" -- meaning that section 253 does not apply, and the cities can force them to apply for "franchises" and demand ridiculous fees before allowing them access to the PROW. Many city governments claim they are trying to encourage competition in cable TV, but they aren't, really, because they would rather just milk the one provider already established for huge fees, while setting the bar too high for anyone to do new build-outs.
Comcast complains about congestion, which occurs at the street corner where all the connections on the block coming in over copper are aggregated onto the fiber network, but that problem would be largely mitigated by giving every house its own fiber connection directly to the head-end. Comcast (and the other cable TV companies) had no incentive to do that because they faced zero competition when they were upgrading their networks thanks to local monopolistic franchising policies. If Verizon and AT&T (and 4 or 5 others) had been breathing down their necks 5-10 years ago, they might have spent the extra money to put fiber all the way to the living room. Now, of course, they would have to basically start their upgrade over again, which they can't afford to do.
If you want to make a difference (and yes, people can still make a difference in politics, particularly if they stop focusing on the national scale and look locally), call your local government and demand that they open up the PROW to others, and that they stop granting monopolistic cable TV franchises.
Using encryption is only going to convince the government that you do have something to hide, which will probably cause them to take a lot greater interest in everything you do, not just your relationship with the one or two clients they cared about to begin with. Given that the DOJ has decided it is fair game to prosecute lawyers for representing "terrorists", it isn't a happy time to be a criminal defense attorney in this area. And, if worse comes to worse and you find your client (or even yourself) charged with a crime, there is no current rule that would prohibit a court from allowing a jury to draw a negative inference from the fact that you took steps to conceal your communications from the government. In other words, the fact that you encrypted your email might be used as evidence that the email was incriminating unless you agree to produce it and prove otherwise. (You can't even claim it is privileged without at least disclosing it to the Court).
Oh, you mean forensics experts in criminal cases. That's a different story -- the stakes are different, the cases never "end" in the sense that people remain in prison, and there is an incentive for defense attorneys to work together to ferret out bad science by the main forensic experts. Moreover, we tend to believe that criminal trials are aimed at getting to a certain "truth" (he did it, or he didn't do it), and thus the science is presented as direct evidence of the ultimate question. In civil litigation the science is presented merely as "opinion" to assist the judge (and sometimes the jury) in reaching a decision on what is, fundamentally, a subjective decision. It would be hard to accuse a professional expert of "lying" when all they are saying is "my opinion is that X infringes the patent." That's a different story than an expert saying something like "the DNA found at the scene came from the Defendant."
Your description of a "good" patent merely begs the question(s): What is "trivial"? What is "the principle"? what is "obviously"? What is "in use"? When does "after" begin? What is "the market"? Each of those questions has a long and conflicting doctrine of law behind it where courts have attempted to articulate standards by which they can be judged. One of the biggest problems in patent law is the inconsistency of the Court of Appeals for the Federal Circuit on questions of law -- out of all the appeals courts, the Fed. Circuit is the least coherent in terms of applying consistent jurisprudential rules and reasoning. It is one of the reasons that the Supreme Court has lately been taking up patent cases again, hopefully to sort out some of the most important issues (e.g., what is "obvious"). Unless and until Congress steps in and clears up some of those questions, we will continue to see inconsistent results applied by courts.
You are asking for too much precision from a correspondent who is not used to arguing in a courtroom. The discussion here regarding patents is usually specific to software, and this discussion is specific to software.
I don't think it has anything to do with arguing in a courtroom -- precision matters in any context; viz., the complaints about how patents are currently written. While I certainly appreciate that software is the main topic, I do think the original poster meant to comment on the entire patent system -- I just don't see how else to read his post (particularly his reference to "inventor" instead of "developer").
I have a telephone lecture entitled you don't want me to write my report, and you don't want to ask why that I use for customers whose case my finding does not support. They appreciate hearing it that way, thank me, and pay my bill.
Sure, I have heard similar lectures (although I usually try to get a sense of whether that will be the case before I pay any bills). But I don't think it is necessarily wrong for someone with no prior interests to approach a problem with a specific goal in mind. That's the nature of the advocacy system: I have my experts and you have yours. It doesn't make someone dishonest simply because they honestly convince themselves of a particular position on a question to which there is no "right" answer. However, I agree that some paid experts take that too far, and compromise their academic credentials for money, which is wrong. That's why I try to stay away from "professional experts" on engineering and science questions (economics is a different story, but don't get me started about them) and only hire people who are truly involved in the specific field, and who don't have a tremendous amount of previous experience as an expert.
Yes, but where is the peril for the bad actor? They know they can lie on their application and never be charged.
The prosecuting attorney can face ethical charges, and also disbarment from the USPTO and/or generally (essentially a professional death knell), but I agree that there is probably not that much enforcement. This is just another result of the overburdened patent application system -- too many applications, not enough examiners to really discern who is lying and who is just confused (and hard to prove anyway).
This is a full-employment act for patent attorneys, and unfortunately results in an abridgement of justice for the defendant...
You won't hear much argument from me. As I said, the system is broken. But no one has yet come up with a workable alternative that can garner enough political support to become reality. I think everyone (big corporations, small time inventors, start-ups, lawyers, PTO examiners, etc.) believe the system is broken, it is just a question of what the solution is. The number of companies actively benefitting all the time from the bad system (e.g., trolls) is not very large, and I doubt that those companies have a lot of political clout.
There is no shortage of perjury cases against experts.
Really? I don't doubt what you say, I am just interested in the source of your information. That is something I would like to hear more about.
Yes, the prescription drug system is broken . . . [c]ontrast it to software, in which the front-loading on the cost of development is the cost of a laptop and a developer's time . ..
Well, for large OSS projects, like Linux, the collective value of the developer time is not trivial -- I would make a WAG that the value of developer time put into linux or mozilla well exceeds some of the drugs that come to market. At the same time, new understanding of proteins and genetics, plus cheap access to raw computing power is making it more and more feasible for small companies (and even individuals) to patent new drugs (as well as methods of explo
He's commenting about a software patent. That's what the article is about. There are compelling arguments that software patents are a mistake.
The first paragraph of the parent was not specific to software patents. The fact that it begins "Patents" while the second paragraph specifies "Software patents" makes it clear that the author believes that all patents only "work" for the small inventor and so-called "start-ups." My response was on-point and not limited by a "software" only view of the universe. I agree that there are "compelling arguments" why software patents (at least in their present form) are a bad thing. However, I am not prepared to categorically declare all software unpatentable.
The pure-as-snow ones don't become expert witnesses and are not generally asked to testify for the prosecution in an infringement case.
I have employed numerous experts who were eminent engineers in their field, hold significant positions at top academic institutions, and have excellent reputations amongst their colleagues for honesty, integrity and good science. Those same experts, having never seen the patent before, can talk themselves into the position put forward by the attorneys presenting the case. It is the nature of the beast -- someone truly unbiased (i.e., with no preconceived ideas) is merely a clean slate for the advocate to convince. So your generalization about the sorts of engineers and scientists who become expert witnesses is no more valid (or academically rigorous) than the general Slashdot derision for all things legal.
However, given the last time the USPTO prosecuted a case of perjury on the application (1974, and the enforcement department no longer exists), it doesn't seem that there is any incentive for purity.
We are not talking about representations made to the patent office (although those can always be dealt with by invalidating the patent for fraud, which happens not-too-infrequently). Once again, the system isn't really designed to catch so-called "bad" applications at the PTO -- it is designed to have bad patents thrown out in court. Perjury before the court is not the domain of the patent office -- it is the domain of the court (and, if rising to a criminal level, the U.S. Attorney). However, there is "perjury" and there is "perjury." How can someone perjure themselves when giving an opinion? After all, that's what experts do: they merely offer their opinions -- it is up to the court to weigh and accept one over the other. The problem, again, is not that there are bad experts or bad lawyers -- its that the entire system is designed to only police bad patents after the fact, and to do it using the least technical people involved (i.e., the courts, lawyers, and even lay jurors). It would be much better to have patents truly and rigorously examined and vetted prior to granting, but no one has yet proposed a workable (and affordable) way to do that, so the political will simply hasn't materialized.
In the case of software patents, rather than a balance all of the incentives seem to be for the bad actor.
Sorry, that's nice "rhetoric" but I don't see any basis for the statement. Yes, software patents may be a species particularly prone to erroneous granting due to the highly technical (and somewhat new and constantly evolving) state of the art (meaning a lack of truly qualified examiners), but how does that change the fundamental incentives? You have to disclose your method to the world, which can read and benefit from it (if the patent is well written), and you get a period of exclusivity. And who are the "bad actors" you mean? Just because software IP is your particular windmill doesn't necessarily make it public enemy number one. A strong argument could be made that the flaws in the patent system do more harm in the market for prescription drugs, where people literally die every day due to the artificial monopolies gran
Yes, anti-competitive behavior can be punished when it uses means beyond what the policy makers have decided is "kosher." But that doesn't diminish the fact that businesses still have lots of perfectly legal anticompetitive tools at their disposal. Patents are a case in point -- the entire purpose of a patent is to exclude all competition from a certain field for a limited period. That is not illegal -- just the opposite, it is the law at work.
Your conspiracy theories about bribing the PTO and/or the federal courts indicates a poor understanding of how the "system" works. Most of the poor decisions in patent law are driven by engineers willing to whore their Ph.D's to the highest bidder. Don't act like it is only the lawyers -- at least we acknowledge that we are partisan advocates; we don't cloak ourselves in some mystical nobility of "scientific objectiveness."
But, yes, bad cases do happen -- SCO being case in point. SCO wasn't wrong for asserting a bad patent -- they were wrong for claiming ownership to something they didn't own to begin with, which is a very different story. And all you lawyer haters out there ought to realize that Novell won that case because they had very careful lawyers who wrote pretty good (not great) contracts.
The way the current patent system is set up the PTO is expected to grant bad patents, and the only way they get weeded out is through litigation. This was what the Supreme Court described in the important 1969 case of Lear v. Adkins in which it held that a patent licensee cannot waive its right to challenge the validity of a patent because it is those licensees who are expected to be "private attorneys general" who will challenge and overturn bad patents in the courts. Unfortunately, since that time, not only has technology become much more complex (and the number of different fields much more varied), but the costs of litigation have gone through the roof, the courts have become clogged with cases, and the number of patents granted has soared. All of these factors have created a "perfect storm" in the patent system whereby the mechanism that was intended to act as the corrective force (private litigation) has become so expensive that there is much less incentive to fight a patent assertion rather than just pay greenmail in the form of license fees. It is bad all around (yes, lawyers and others are getting rich, but those of us who practice law for more than just the money, which is more lawyers than you might believe, lament the sorry state of the law. I do not know a single patent attorney who believes the system is "working").
Yes, I am "aware" of these "issues." We both agree that it is a flaw in practice and not a flaw in design. The parent post to which I was responding suggested that all patents are ipso facto bad -- I was merely trying to point out that there is a sensible purpose behind the system and that purpose is not antithetical to corporate involvement.
I agree that many modern patents are poorly written, and that the current state of the patent law provides every incentive to write them badly. I am a litigator (not a patent prosecutor or general patent lawyer), and no matter which side of a case I'm on I always find myself arguing that the patent doesn't mean what it actually says (the same thing happens with contracts written by non-litigators). However, I get a little weary of the "engineers are pure as driven snow" attitude. I have never seen an inventor get on the stand and admit that the patent doesn't say what the company now claims it says. They either lie through their teeth (even when they no longer work for the corporate patentee), or they simply get amnesia and refuse to testify. Lawyers only facilitate a bad patent system; it is the engineers who can't be bothered to get involved -- or, worse yet, cynically use the flaws to their own advantage -- and then blame the lawyers that are the root of the problem. I also tend to note that the engineers that do get involved in patent cases typically get paid as well as, if not better than, the lawyers (they call themselves "experts" but they always seem to be able to say whatever the lawyers already thought).
I would also point out that I was not responding to the parent post as specific to software patents, which are a special breed of bad. However, addressing some of your specific points:
(1) Your point about Open Source is specific to the software realm. My point was about the incentive granted by the patent system: limited period of exclusivity in exchange for public disclosure. Trade secrets give you no protection against someone else discovering the same thing, but you don't have to disclose your discovery/invention. Most open source licenses (particularly the GPL) are not the antithesis of either patents or trade secrets because they require disclosure (like patents) and grant no exclusivity to the original author (like trade secrets). I don't say that as a criticism, OSS is simply a third way of treating intellectual property. It has features of both trade secrets and patents, but is skewed to the public good (i.e., share and share alike), with only a tangential benefit to the initial creator. Patent and Trade secrets both seek to balance public good against personal gain, and each favors the individual gain in a different way.
(2) Any company that thinks it can avoid a willful patent infringement claim by telling their engineers not to look at patents needs to question whether their corporate counsel is serving them or the other way around. (Copyright is a different story, pardon the pun, hence the emphasis on "patent").
(3) I don't agree that patents are always longer than the current "generation of technology." Look at GIF, MP3, recalc etc. Those technologies continue to flourish and will continue long after their patents have expired. If anything, we should prefer patents over copyright, which lasts a heckuva lot longer than patents.
The parent post is remarkably uninformed and reflects a poor understanding of the patent system and how it is used.
First of all, patents have always been the domain of big business. One of the reasons many of the "founding fathers" were so suspicious of the patent system was that patents granted by the King were government granted monopolies given to particular large corporations, usually as a political favor. Whoever had the "patent" on the tea kettle became the only tea kettle maker in England until someone convinced the King otherwise. Thus, the U.S. Constitution was written to specifically limited to allow patents only "for a limited time" (Art. I, section 8, cl. 8). This was the answer to the uneasy tension between giving an incentive to create while not granting perpetual monopolies. Thomas Jefferson, himself an inventor, recognized that patents are a necessary incentive to invent, which enriches society.
The antithesis of patents is trade secrets. If I have a trade secret (e.g., the mythical recipe of Coca-Cola), I don't have to tell any one else how to make it, and as long as I am really good at keeping the secret the world will never find out -- hence, there will always be only one "Coke" even though there might be other "colas".
By having a patent system, the entire world gets to learn about your new invention, possibly improve on or build on your idea, and after a period of time they get to copy it themselves (or, they can license it and avoid the wait).
Moreover, today's technology is such that, in many fields, it is simply unrealistic to think that real progress could be made by individuals working alone. For example, no person puttering in their basement is going to come up with a new process for fabbing microchips, or a new drug that is proven safe in humans -- those things require lots and lots of resources that only corporations or other institutions (e.g., Universities) can afford. Even Thomas Edison, the prototypical "inventor" had an army of technicians and assistants working for him by the end of his life.
Patents are not "evil," nor are corporations that participate in the patent system. There are, however, a lot of bad patents out there right now (for a variety of reasons beyond the scope of this post). However, a company that has a "bad" patent cannot be faulted for trying to enforce it -- they are simply trying to protect their business interests (yes, business is cut-throat; get over it). Theoretically, the courts are supposed to take care of the bad patents. The fact that the courts may be failing is not the fault of the businesses that are seeking to protect their own interests.
Companies only go to court when they think the license is weak or questionable enough that they've a reasonable chance of winning. So far, every violator seems to have been told by their lawyers "If they take you into court, you will lose. Settle now."
As a corporate lawyer who occasionally handles copyright matters, I can tell you this statement is dead wrong. The only concern a company has is "how much will it cost?" When the cost to settle is less than the cost of defending the case, any good lawyer will advise his/her client appropriately. Now, the cost of settlement may not be strictly cash -- it may include the costs of rewriting code, releasing proprietary code, etc. However, since there hasn't yet been a GPL plaintiff looking for big ca$h, it is usually cheaper to settle. The fact that GPL owners are usually represented by pro bono organizations like EFF is a big reason they don't typically seek a lot of money -- they feel like they are doing it for "the principle of the thing."
Defending a complex copyright case is easily going to run into the millions of dollars, and cast a shadow over your business for two to three years (e.g., SCO v. IBM). If you are Verizon or McAfee, why bother?
From my perspective, McAfee is not only making a valuable point about their own business -- they are making an important statement about the entire OSS movement in general. Many companies are going to avoid developing for Linux, or using open source software simply because they don't understand what the license says (and, in reality, I don't think anyone knows what GPL3.0 says, including the drafters), and they can't conceive of a good enough reason to take the risk.
A good court battle over the GPL in which a court construed (i.e., interprets) the language would be good for everyone except those who use the vagueness of the GPL as a cudgel. An appellate decision (costing another $500,000 or more at least) would be even better. However, so far the stakes involved in catering to the OSS/Linux community just haven't been worth it. In a few years, if more consumers are carrying Symbian phones, and using Walmart special Linux boxes to get their email, it may be a market worth fighting to get into -- right now, I think most companies (not including their IT departments) see it only as a pain in the ass.
Even more ridiculous is the City attorney's refusal to release her communications with Google, citing "attorney-client privilege." Any communication shared with a third party (i.e., someone other than the lawyer or client) is automatically not privileged. She starts to set up a claim for attorney work product by explaining how Google might become adverse, but again, a communication with a third party -- particularly the adverse party -- cannot be covered by the AWP doctrine.
I thought it was hard to pass the California bar, how did these idiots ever do it?
Whether or not drunk driving is a good idea, bad idea, or moral scourge, this issue implicates something else entirely: due process. It is about the government's ability to accuse someone of a crime and obtain a conviction on untestable "scientific" evidence. As far as you and I know, there are are two secret buttons on the back of the breathalyzer that read "drunk/not drunk", and the cop just pushes whichever button he feels like. I realize that is not the case, but the point of our justice system is that I have a right to make the government prove that isn't the case before they convict me of a crime.
If anyone has trouble with this issue due to the unsympathetic nature of drunk drivers, just flip it around. Imagine someone driving around drunk as a skunk, plows into a minivan, killing mom, dad, and little sister, but then blows a 0.01 on a flawed breathalyzer, and is allowed to walk away scott free. We deserve better in our criminal justice system.
The target of a SLAPP suit can file a motion that basically freezes the entire case until the plaintiff proves they aren't engaging in SLAPP. If the company loses, they end up having to pay the defendant's attorneys fees, and, IIRC, damages as well.
In a word: yes. See, kids typically don't have any money of their own, and whatever they do have, the parents can generally take (with exceptions for bubblegum rock stars aside). Parents can also do things to their own kids that no one could do to an adult. You can ground your kid, or take away his or her car/stero/ipod/computer/ant farm. If you come into my house and take my computer it's called theft. Thus, as a parent you (rightfully) exert a higher level of control over your kids. With that control you also have a duty to exercise it, and that duty is enforced by making you responsible for your kid's mistake. The corrollary, of course, is you also have a duty to keep your kid safe. If I am asserting enough of an influence over my child to prevent him from hurting himself (physically or otherwise), that ought to be enough to keep him from hurting others.
Now, things get fuzzy when talking about teenagers near the age of majority, and it is not unusual for damage awards against parents to be reduced in consideration of their legitimate inability to have prevented the malfeasence. But when you are talking in the strict sense, the child is considered as an extension of the parent for purposes of legal liabliity. (The classic case is of a 4 year old pulling the chair out from under an old lady while his mother watches. The 4 year old can't pay medical bills.)
In this specific case, it sounds like the assistant principal should get a life. A previous poster suggested "guilty but no money" -- that is actually a very common occurence in libel/slander cases. The law treats damages separate from whether or not you were defamed. Thus, she could sue only to establish that she is NOT a lesbian, but receive only nominal damages (e.g., $1) because nobody believed or cared whether she was.
Someone else suggested that refusing to hire someone on the basis of sexual orientation would be discrimination. Only in certain places. Some states, and many cities have taken it upon themselves to make sexual orientation a protected status (e.g., Washington D.C., San Francisco), and in a few cases gay people have succeeded in asserting a gender or marital status discrimination claim in lieu of sexual orientation - but nothing under federal law prohibits discrimination on the basis of sexuality. In the vast majority of America it is perfectly legal to tell someone "we don't hire faggots." Sad, but true.
whether EULAs are valid contracts or not. If not, then obviously everyone has the fair use right to copy the CD for their personal use because the data *has* to be copied into hardware registers, modified (especially during error correction), and then converted to analog audio at some point. If EULAs are valid, then I guess you can't buy used CDs because the imaginary EULA that comes with every new CD probably doesn't "allow" that. We definitely need a strong anti-EULA case to go through the courts, preferably one like this where it's blatantly obvious that the necessity of a EULA to play a CD or DVD is an undue burdon and against fair use rights.
EULA's are very much "valid contracts" and have been upheld by the courts in many instances. There has been some debate over how much involvement is required before one can be said to have accepted the contract. So-called "shrinkwrap" licenses, in which opening (and keeping) the product constitutes acceptance are pretty much universally upheld. The less certain ones are so-called "clickwraps" where acceptance is premised on something less definitve, such as surfing to a particualar site, or clicking a button next to a tiny little window displaying the first few lines of 10 pages of legal "fineprint."
Don't be so eager for "a strong anti-EULA case." The (in)famous Betamax case established fairly user-favorable rules for end-users. The recent Kazaa case case rolled some of those rights back. "Strong cases" cut both ways, and we lawyers usually say: big cases make for bad law. What you really need are lots and lots of "small" cases that mostly reach the same conclusions.
Thank you & bladesjester for taking on my naive question. My understanding, however (and probably wrong) is that the metric isn't the quantity of earnings, but the percentage relative to costs. So companies that predict a $.10 return this quarter are smacked if they don't predict $.12 next quarter. I agree that some companies should grow through opening new markets or entering existing markets. But my preception is that a healthy company that serves a particular market and is content to earn the same decent return on its costs year-after-year gets punished. But, if I owned a small or medium size business and earned 5% return every year I might be content with that, considering my personal out-of-pocket is zero. But I would get punished by Wall Street if I attempted to go public.
The entire Wall Street mentality seems to encourage the slash-and-burn method of corporate growth. Companies that once spent millions investing in potentially speculative R&D (e.g., HP, AT&T/Bell) slashed all of that (e.g. Agilent, Lucent), in favor of the quick buck.
Entering new markets is also a finite plan. What will Walmart do when there are no other grocery/general stores in the country? Just like McDonalds got hammered recently because they had saturated the domestic market and weren't doing well overseas. But the fact is, McDonalds will probably continue to sell just as many hamburgers for just as much money here in the U.S., so why are they fundamentally a bad company for not opening new stores? This method of appeasing Wall Street is the source of the growing monopolies by certain businesses like Walmart.
Re:Indians will complain about foreigners soon
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I agree that the bottom line is very important (shareholders or no shareholders), but I want to add a couple of additional thoughts about "shareholders" today.
First, when people think of "shareholders" they think of individuals -- even if it is wealthy individuals like Warren Buffet. But that isn't the reality. The "shareholders" with weight are the large institutions -- i.e. mutual funds and pension programs. The NY and California public employee pension funds are 2 of the most powerful investors on Wall Street now, and have begun using that power to drag some social responsibilty out of corporations.
Second, shareholders -- of whatever type -- seem to me, a non-financial person, to be a very fickle lot. About every 20 years the criteria for what makes something a "good" company changes. Once, it was sales numbers. Then, in probably the '60s or '70s, it shifted to dividends. Dividends isn't a bad metric, because it combines two factors: (1) how much profit the company is making, and (2) how much it is willing to give back to the shareholders. Plus, the dividend is a direct and renewable return on your investment. I may take 4% return on my stock this year, and, without doing anything, take another 4% next year. If I look only to share price, then I have to sell my shares to realize the gain, leaving me with no future return. In the past 10 years or so the focus has shifted to earnings growth -- i.e., how much MORE profit the company made this year over last. I just cannot figure out the logic of using that as a metric. If a company that earned 5% last year announces it is going to make 10% this year, that tells me one of two things: either you are admitting you are incompetent, and could have earned 10% this year; or you are planning to slash and burn for the sake of immediate return without view towards the future. I would point to H-P as probably the epitome of that kind of thinking.
So, maybe one of you financial types can explain to me why I should want stock in a company that exhibits good earnings growth, particularly when almost no company actually pays a dividend worth discussing anymore.
There are a number of exemptions to FOIA, of which national security is only one. I have not seen the responses given in this case, but I would speculate that they included the (b)(4) exemption (Trade secrets, commerical or financial info) and (b)(5) (privileged inter- & intra-agency memoranda and letters), which are probably the two most frequently used exemptions. A full list of the exemptions can be easily found through a Google search. E.g., http://www.corporateservices.noaa.gov/~foia/foiaex .html.
I politely disagree with RayBender's simplification of the issue. I would frame the question thus: do we want time to represent a digital or analog concept?
In the Wikipedia article linked there is an interesting description of the problems with keeping UNIX time consistent with UTC. UTC incorporates leap-seconds to keep "time" consistent with what is, really, an arbitrary analog basis: i.e. our perception of the physical world. UTC is therefore trying to roughly approximate an analog condition through periodic arbitrary adjustments (note, UTC is never "perfectly attuned" to the astronomical position of the earth). TAI (atomic time) is a "digital" represenation of time: e.g. a second is a known quantity, and we count one after the other forever and ever. Because UNIX time_t is based on UTC, coversions have to be done to consult tables of leap seconds, and, what's worse, time_t can produce ambiguous results when referring to events occuring during a leap second.
At this kind of precision, the time-user is almost certainly going to be using a digital-based system (i.e. a computer), so why not use a digital time scale?
The proposed 500-year leap-hour may seem to be "pushing the problem down the road", but that isn't necessarily a bad thing. Instead of everyone having to constantly make adjustments for leapseconds all the time, there is one big event that reconciles digital time with our "perception" -- and it only occurs when the error in perception approaches the level of significance (i.e. when people might actually start to notice a problem by looking at the sun). As it is now the fixed-timezones mean that solar-noon can occur 30 minutes or more before or after "clock noon" (e.g., in Michigan, which is more than 1/2 an hour ahead of the meridian basis for the EST, noon can occur as late as 12:40pm). It doesn't cause any great inconvenience. In fact, twice a year we happily change the "clock time" of solar noon by a whole hour in either direction (eg daylight savings).
If we are going to be talking about time kept by computers, lets do it in a way that's convenient to the computers (e.g. TAI). Most scientists should benefit. The astronomers only suffer because they have already invested huge amounts in adjusting thier digital systems to the analog representation of UTC. But astronomers also already have to adjust for Sidereal time, terrestrial time etc. when pointing their telescopes, so TAI doesn't really make their jobs any harder.
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What is scary here is the cooperation of Verisign. In this case, Verisign maintains the registry for .com. But Verisign also still operates the 0 Root servers under contract to the Dept. of Commerce. So, if they wanted to (or were ordered to by the U.S. Govt) they could "technically" take out an entire TLD, including a ccTLD like .ru or .cn.
"Technically" is in quotes because the realities of the root servers would make it easy for the rest of the world to tell the U.S. to go screw at that point, and stop syncing the dozens of root servers that are distributed around the world off of the Verisign "corrupted" servers. However, it would be the end of the canonical DNS system as we know it.
AFAIK, the engineers at Verisign who handle root server issues try very very hard to stay out of any type of corporate shenanigans, but at the end of the day Verisign operates those servers, and Verisign is a U.S. Company, on U.S. soil, with executives who are very much subject to the immediate coercion of the U.S. Government.
Oops, my bad. Thanks for the correction, it was a dumb error.
Forgive the rant, but:
It is not a "spy" plane, it is a "surveillance" plane. Ever since the 2001 Hainan Island incident this mistake has really irked me. The Chinese used it as a rhetorical club to beat us with when GWB chickened out and let them chop up our plane and imprison our crew.
A "spy" plane would be one that is designed/intended to escape detection and/or interception while conducting surveillance in places it has no right to be (such as the U2 and SR-71 or the Global Hawk). During the cold war, the Soviet Union consistently protested our overflights of their territory with the U2 and SR71, and sought (and once succeeded) to shoot them down, as was their right. Those were "spy" planes, and Francis Gary Powers was, technically, a "spy."
The JSTARS E-8 and the Hainan EP-3E are both military versions of the Boeing 707 -- they aren't designed to hide from or evade anyone trying to see and/or catch them. They are big obvious platforms that fly in neutral territory (or over an actively declared battle zone when we have air dominance) and provide surveillance and other capability. They aren't hiding or trying to deceive anyone.
First, the quote was from the Declaration of Independence, a document that preceded the U.S. Constitution by more than a decade, was purely symbolic in nature -- which is to say, it has almost zero application in the law of the United States of America.
What both of you are trying to recall from your ancient civics classes is the Fifth Amendment (part of the Bill of Rights, passed 2 years after the Constitution), which reads (in relevant part):
No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .
Whether or not coercing someone to unlock the chest where they put their confession is the same as forcing them to incriminate themselves is a tricky and unsettled question of law that we (the Yanks) are still working on. (Whether the coercion is beating them with a $5 wrench, or putting them in prison indefinitely for "contempt", the principle is the same.)
Your meta-point is quite true, however - the creation and protection of such individual rights in conflicts with the State was the fundamental schism that led North America to diverge from the previously (fairly homogenous) Anglo/European civilization about 200 years ago. Now build some Settler[early game]/Armor units[late game] and get out there and spread the word to the rest of the map.
As an attorney, reading this question invokes the same reactions that many of the /. crowd would have if I started trying to opine on the technical failings that would allow our mythical vandals to reprogram the hypothetical robot.
Not to get too technical, but just because you sue the company doesn't mean you win. The liability insurance that even the smallest companies carry would cover the legal costs of having such a suit dismissed. (For the technically inclined, look up comparative negligence and the proverbial "intervening bad actor").
The homeowner (the ones suing) would probably be found more responsible for not following basic security etc.
As others have pointed out, software companies have long been given practically a free ride in harm caused by poorly written software. First, they have been allowed to disclaim the standard warranties of fitness and function. This is akin to buying a car that the manufacturer won't promise to actually work or be safe. If Ford told you that they wouldn't guarantee that pressing the brake pedal actually engaged the brakes, would you drive that car? Yet every piece of commercial software we use specifically says that there is no promise that it will work at all, or do what the purchaser wants.
Here is a counter hypothetical (more realistic as it has actually happened). A relative dies in a plane crash. The FAA investigation conclusively shows that the accident was caused by a bug in one of the key computer systems. Should you sue: the airline? The manufacturer (boeing/airbus)? The subcontractor that wrote the software?
The answer is, you sue the airline, and the system is set up so that anything you win from them, they can then sue to recover from the party up the chain. Thus, everyone's liability is ultimately apportioned according to their degree of fault (note, yes it is a gross simplification). This is why people writing software for critical systems (ones where a failure can cause property damage or injury) need a good lawyer to write their contracts/licenses. They law has allowed programmers to avoid their responsibilties for a long time, so if a sw company doesn't take advantage of that, it is their own fault.
Consider, there is no educational or professional certification required to write and sell software that controls an infant incubator used in an NICU, but you need a government license to drive to the store. Programmers and engineers have been getting a sweet deal in liability for years, so it's awesome to hear them still complaining.
I completely agree that this is marketing fodder by Unisys. But it is also corporatism that will prevent this from ever happening. Logistically, it would not be that difficult to shut off the internet for 95% of Americans. First, there are a finite number of physical cable trunks entering and leaving the U.S., and the FCC knows all about where each and every one of them comes ashore. The number of companies with independent inter-city backbone capacity is probably fewer than 10. (Level 3, AT&T, Verizon, ???). But, the fact remains that each of those networks -- no matter how regulated -- is the property of a corporation that has every incentive to protect its property from undue government control. These are the interests (with deep pockets) that will finance the 5th amendment litigation that would ultimately apply the Constitution.
The two things I worry about more is (1) the individual rights with no corporate interest to back them, and (2) when corporations aid and abet the government's violation of those individual rights (e.g. turning over vast amounts of consumer data for government data mining, or allowing the government to tap your customers without a warrant, etc. etc.)
As soon as the government puts a "kill switch" on the current network, someone will have a strong incentive to build a new one the government can't kill without physical violence. Information wants to be free, and the internet is beyond the power of even the U.S. government to ever contain.
those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the required portions (which also include the required elements of optional portions) of the Covered Specification that are described in detail and not those merely referenced in the Covered Specification.
Of course, anyone who thinks they can "design-around" a patent will claim that the patent is not actually "necessary" to the desired function. In order to enjoy this "promise" you have to confess that the only way to achieve the standard is to infringe on a valid MS patent.
Another potentially worrying point is this exception:
If you file, maintain, or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of any Covered Specification, then this personal promise does not apply with respect to any Covered Implementation made or used by you.
So..., anyone who even "participates" in a patent suit against MS (including, presumably, a patent suit filed by MS), loses protection for not only their own products, but anything they "use." For example, if FSF got into a dust-up with MS, MS could still claim infringement by FSF (or anyone else) for using Mono, even though MS has chosen not to pursue the authors of Mono or other Mono users. Referring to it as a "personal promise" also calls into question its applicability to businesses/organizations.
I am being overly paranoid, but the fact is, like so many other legal "promises", the value of this one will only be seen in the implementation. As a cynical lawyer, I don't see anything here that absolutely precludes MS from asserting infringement by Mono or any other OSS project. If Microsoft truly wanted to be benevolent they could easily make a much broader promise with less grey area. For example, they could name the patents that they claim to cover the specs in question and offer royalty free licensing, or make a non-assert pledge with some actual teeth. All they are saying here is "we probably, maybe won't sue you unless we do."
Comcast complains about congestion, which occurs at the street corner where all the connections on the block coming in over copper are aggregated onto the fiber network, but that problem would be largely mitigated by giving every house its own fiber connection directly to the head-end. Comcast (and the other cable TV companies) had no incentive to do that because they faced zero competition when they were upgrading their networks thanks to local monopolistic franchising policies. If Verizon and AT&T (and 4 or 5 others) had been breathing down their necks 5-10 years ago, they might have spent the extra money to put fiber all the way to the living room. Now, of course, they would have to basically start their upgrade over again, which they can't afford to do.
If you want to make a difference (and yes, people can still make a difference in politics, particularly if they stop focusing on the national scale and look locally), call your local government and demand that they open up the PROW to others, and that they stop granting monopolistic cable TV franchises.
Using encryption is only going to convince the government that you do have something to hide, which will probably cause them to take a lot greater interest in everything you do, not just your relationship with the one or two clients they cared about to begin with. Given that the DOJ has decided it is fair game to prosecute lawyers for representing "terrorists", it isn't a happy time to be a criminal defense attorney in this area. And, if worse comes to worse and you find your client (or even yourself) charged with a crime, there is no current rule that would prohibit a court from allowing a jury to draw a negative inference from the fact that you took steps to conceal your communications from the government. In other words, the fact that you encrypted your email might be used as evidence that the email was incriminating unless you agree to produce it and prove otherwise. (You can't even claim it is privileged without at least disclosing it to the Court).
Oh, you mean forensics experts in criminal cases. That's a different story -- the stakes are different, the cases never "end" in the sense that people remain in prison, and there is an incentive for defense attorneys to work together to ferret out bad science by the main forensic experts. Moreover, we tend to believe that criminal trials are aimed at getting to a certain "truth" (he did it, or he didn't do it), and thus the science is presented as direct evidence of the ultimate question. In civil litigation the science is presented merely as "opinion" to assist the judge (and sometimes the jury) in reaching a decision on what is, fundamentally, a subjective decision. It would be hard to accuse a professional expert of "lying" when all they are saying is "my opinion is that X infringes the patent." That's a different story than an expert saying something like "the DNA found at the scene came from the Defendant."
Your description of a "good" patent merely begs the question(s): What is "trivial"? What is "the principle"? what is "obviously"? What is "in use"? When does "after" begin? What is "the market"? Each of those questions has a long and conflicting doctrine of law behind it where courts have attempted to articulate standards by which they can be judged. One of the biggest problems in patent law is the inconsistency of the Court of Appeals for the Federal Circuit on questions of law -- out of all the appeals courts, the Fed. Circuit is the least coherent in terms of applying consistent jurisprudential rules and reasoning. It is one of the reasons that the Supreme Court has lately been taking up patent cases again, hopefully to sort out some of the most important issues (e.g., what is "obvious"). Unless and until Congress steps in and clears up some of those questions, we will continue to see inconsistent results applied by courts.
You are asking for too much precision from a correspondent who is not used to arguing in a courtroom. The discussion here regarding patents is usually specific to software, and this discussion is specific to software.
I don't think it has anything to do with arguing in a courtroom -- precision matters in any context; viz., the complaints about how patents are currently written. While I certainly appreciate that software is the main topic, I do think the original poster meant to comment on the entire patent system -- I just don't see how else to read his post (particularly his reference to "inventor" instead of "developer").
I have a telephone lecture entitled you don't want me to write my report, and you don't want to ask why that I use for customers whose case my finding does not support. They appreciate hearing it that way, thank me, and pay my bill.
Sure, I have heard similar lectures (although I usually try to get a sense of whether that will be the case before I pay any bills). But I don't think it is necessarily wrong for someone with no prior interests to approach a problem with a specific goal in mind. That's the nature of the advocacy system: I have my experts and you have yours. It doesn't make someone dishonest simply because they honestly convince themselves of a particular position on a question to which there is no "right" answer. However, I agree that some paid experts take that too far, and compromise their academic credentials for money, which is wrong. That's why I try to stay away from "professional experts" on engineering and science questions (economics is a different story, but don't get me started about them) and only hire people who are truly involved in the specific field, and who don't have a tremendous amount of previous experience as an expert.
Yes, but where is the peril for the bad actor? They know they can lie on their application and never be charged.
The prosecuting attorney can face ethical charges, and also disbarment from the USPTO and/or generally (essentially a professional death knell), but I agree that there is probably not that much enforcement. This is just another result of the overburdened patent application system -- too many applications, not enough examiners to really discern who is lying and who is just confused (and hard to prove anyway).
This is a full-employment act for patent attorneys, and unfortunately results in an abridgement of justice for the defendant...
You won't hear much argument from me. As I said, the system is broken. But no one has yet come up with a workable alternative that can garner enough political support to become reality. I think everyone (big corporations, small time inventors, start-ups, lawyers, PTO examiners, etc.) believe the system is broken, it is just a question of what the solution is. The number of companies actively benefitting all the time from the bad system (e.g., trolls) is not very large, and I doubt that those companies have a lot of political clout.
There is no shortage of perjury cases against experts.
Really? I don't doubt what you say, I am just interested in the source of your information. That is something I would like to hear more about.
Yes, the prescription drug system is broken . . . [c]ontrast it to software, in which the front-loading on the cost of development is the cost of a laptop and a developer's time . . .
Well, for large OSS projects, like Linux, the collective value of the developer time is not trivial -- I would make a WAG that the value of developer time put into linux or mozilla well exceeds some of the drugs that come to market. At the same time, new understanding of proteins and genetics, plus cheap access to raw computing power is making it more and more feasible for small companies (and even individuals) to patent new drugs (as well as methods of explo
He's commenting about a software patent. That's what the article is about. There are compelling arguments that software patents are a mistake.
The first paragraph of the parent was not specific to software patents. The fact that it begins "Patents" while the second paragraph specifies "Software patents" makes it clear that the author believes that all patents only "work" for the small inventor and so-called "start-ups." My response was on-point and not limited by a "software" only view of the universe. I agree that there are "compelling arguments" why software patents (at least in their present form) are a bad thing. However, I am not prepared to categorically declare all software unpatentable.
The pure-as-snow ones don't become expert witnesses and are not generally asked to testify for the prosecution in an infringement case.
I have employed numerous experts who were eminent engineers in their field, hold significant positions at top academic institutions, and have excellent reputations amongst their colleagues for honesty, integrity and good science. Those same experts, having never seen the patent before, can talk themselves into the position put forward by the attorneys presenting the case. It is the nature of the beast -- someone truly unbiased (i.e., with no preconceived ideas) is merely a clean slate for the advocate to convince. So your generalization about the sorts of engineers and scientists who become expert witnesses is no more valid (or academically rigorous) than the general Slashdot derision for all things legal.
However, given the last time the USPTO prosecuted a case of perjury on the application (1974, and the enforcement department no longer exists), it doesn't seem that there is any incentive for purity.
We are not talking about representations made to the patent office (although those can always be dealt with by invalidating the patent for fraud, which happens not-too-infrequently). Once again, the system isn't really designed to catch so-called "bad" applications at the PTO -- it is designed to have bad patents thrown out in court. Perjury before the court is not the domain of the patent office -- it is the domain of the court (and, if rising to a criminal level, the U.S. Attorney). However, there is "perjury" and there is "perjury." How can someone perjure themselves when giving an opinion? After all, that's what experts do: they merely offer their opinions -- it is up to the court to weigh and accept one over the other. The problem, again, is not that there are bad experts or bad lawyers -- its that the entire system is designed to only police bad patents after the fact, and to do it using the least technical people involved (i.e., the courts, lawyers, and even lay jurors). It would be much better to have patents truly and rigorously examined and vetted prior to granting, but no one has yet proposed a workable (and affordable) way to do that, so the political will simply hasn't materialized.
In the case of software patents, rather than a balance all of the incentives seem to be for the bad actor.
Sorry, that's nice "rhetoric" but I don't see any basis for the statement. Yes, software patents may be a species particularly prone to erroneous granting due to the highly technical (and somewhat new and constantly evolving) state of the art (meaning a lack of truly qualified examiners), but how does that change the fundamental incentives? You have to disclose your method to the world, which can read and benefit from it (if the patent is well written), and you get a period of exclusivity. And who are the "bad actors" you mean? Just because software IP is your particular windmill doesn't necessarily make it public enemy number one. A strong argument could be made that the flaws in the patent system do more harm in the market for prescription drugs, where people literally die every day due to the artificial monopolies gran
Your conspiracy theories about bribing the PTO and/or the federal courts indicates a poor understanding of how the "system" works. Most of the poor decisions in patent law are driven by engineers willing to whore their Ph.D's to the highest bidder. Don't act like it is only the lawyers -- at least we acknowledge that we are partisan advocates; we don't cloak ourselves in some mystical nobility of "scientific objectiveness."
But, yes, bad cases do happen -- SCO being case in point. SCO wasn't wrong for asserting a bad patent -- they were wrong for claiming ownership to something they didn't own to begin with, which is a very different story. And all you lawyer haters out there ought to realize that Novell won that case because they had very careful lawyers who wrote pretty good (not great) contracts.
The way the current patent system is set up the PTO is expected to grant bad patents, and the only way they get weeded out is through litigation. This was what the Supreme Court described in the important 1969 case of Lear v. Adkins in which it held that a patent licensee cannot waive its right to challenge the validity of a patent because it is those licensees who are expected to be "private attorneys general" who will challenge and overturn bad patents in the courts. Unfortunately, since that time, not only has technology become much more complex (and the number of different fields much more varied), but the costs of litigation have gone through the roof, the courts have become clogged with cases, and the number of patents granted has soared. All of these factors have created a "perfect storm" in the patent system whereby the mechanism that was intended to act as the corrective force (private litigation) has become so expensive that there is much less incentive to fight a patent assertion rather than just pay greenmail in the form of license fees. It is bad all around (yes, lawyers and others are getting rich, but those of us who practice law for more than just the money, which is more lawyers than you might believe, lament the sorry state of the law. I do not know a single patent attorney who believes the system is "working").
I agree that many modern patents are poorly written, and that the current state of the patent law provides every incentive to write them badly. I am a litigator (not a patent prosecutor or general patent lawyer), and no matter which side of a case I'm on I always find myself arguing that the patent doesn't mean what it actually says (the same thing happens with contracts written by non-litigators). However, I get a little weary of the "engineers are pure as driven snow" attitude. I have never seen an inventor get on the stand and admit that the patent doesn't say what the company now claims it says. They either lie through their teeth (even when they no longer work for the corporate patentee), or they simply get amnesia and refuse to testify. Lawyers only facilitate a bad patent system; it is the engineers who can't be bothered to get involved -- or, worse yet, cynically use the flaws to their own advantage -- and then blame the lawyers that are the root of the problem. I also tend to note that the engineers that do get involved in patent cases typically get paid as well as, if not better than, the lawyers (they call themselves "experts" but they always seem to be able to say whatever the lawyers already thought).
I would also point out that I was not responding to the parent post as specific to software patents, which are a special breed of bad. However, addressing some of your specific points:
(1) Your point about Open Source is specific to the software realm. My point was about the incentive granted by the patent system: limited period of exclusivity in exchange for public disclosure. Trade secrets give you no protection against someone else discovering the same thing, but you don't have to disclose your discovery/invention. Most open source licenses (particularly the GPL) are not the antithesis of either patents or trade secrets because they require disclosure (like patents) and grant no exclusivity to the original author (like trade secrets). I don't say that as a criticism, OSS is simply a third way of treating intellectual property. It has features of both trade secrets and patents, but is skewed to the public good (i.e., share and share alike), with only a tangential benefit to the initial creator. Patent and Trade secrets both seek to balance public good against personal gain, and each favors the individual gain in a different way.
(2) Any company that thinks it can avoid a willful patent infringement claim by telling their engineers not to look at patents needs to question whether their corporate counsel is serving them or the other way around. (Copyright is a different story, pardon the pun, hence the emphasis on "patent").
(3) I don't agree that patents are always longer than the current "generation of technology." Look at GIF, MP3, recalc etc. Those technologies continue to flourish and will continue long after their patents have expired. If anything, we should prefer patents over copyright, which lasts a heckuva lot longer than patents.
Go ahead, flame away, I've got tough skin. :)
First of all, patents have always been the domain of big business. One of the reasons many of the "founding fathers" were so suspicious of the patent system was that patents granted by the King were government granted monopolies given to particular large corporations, usually as a political favor. Whoever had the "patent" on the tea kettle became the only tea kettle maker in England until someone convinced the King otherwise. Thus, the U.S. Constitution was written to specifically limited to allow patents only "for a limited time" (Art. I, section 8, cl. 8). This was the answer to the uneasy tension between giving an incentive to create while not granting perpetual monopolies. Thomas Jefferson, himself an inventor, recognized that patents are a necessary incentive to invent, which enriches society.
The antithesis of patents is trade secrets. If I have a trade secret (e.g., the mythical recipe of Coca-Cola), I don't have to tell any one else how to make it, and as long as I am really good at keeping the secret the world will never find out -- hence, there will always be only one "Coke" even though there might be other "colas".
By having a patent system, the entire world gets to learn about your new invention, possibly improve on or build on your idea, and after a period of time they get to copy it themselves (or, they can license it and avoid the wait).
Moreover, today's technology is such that, in many fields, it is simply unrealistic to think that real progress could be made by individuals working alone. For example, no person puttering in their basement is going to come up with a new process for fabbing microchips, or a new drug that is proven safe in humans -- those things require lots and lots of resources that only corporations or other institutions (e.g., Universities) can afford. Even Thomas Edison, the prototypical "inventor" had an army of technicians and assistants working for him by the end of his life.
Patents are not "evil," nor are corporations that participate in the patent system. There are, however, a lot of bad patents out there right now (for a variety of reasons beyond the scope of this post). However, a company that has a "bad" patent cannot be faulted for trying to enforce it -- they are simply trying to protect their business interests (yes, business is cut-throat; get over it). Theoretically, the courts are supposed to take care of the bad patents. The fact that the courts may be failing is not the fault of the businesses that are seeking to protect their own interests.
As a corporate lawyer who occasionally handles copyright matters, I can tell you this statement is dead wrong. The only concern a company has is "how much will it cost?" When the cost to settle is less than the cost of defending the case, any good lawyer will advise his/her client appropriately. Now, the cost of settlement may not be strictly cash -- it may include the costs of rewriting code, releasing proprietary code, etc. However, since there hasn't yet been a GPL plaintiff looking for big ca$h, it is usually cheaper to settle. The fact that GPL owners are usually represented by pro bono organizations like EFF is a big reason they don't typically seek a lot of money -- they feel like they are doing it for "the principle of the thing."
Defending a complex copyright case is easily going to run into the millions of dollars, and cast a shadow over your business for two to three years (e.g., SCO v. IBM). If you are Verizon or McAfee, why bother?
From my perspective, McAfee is not only making a valuable point about their own business -- they are making an important statement about the entire OSS movement in general. Many companies are going to avoid developing for Linux, or using open source software simply because they don't understand what the license says (and, in reality, I don't think anyone knows what GPL3.0 says, including the drafters), and they can't conceive of a good enough reason to take the risk.
A good court battle over the GPL in which a court construed (i.e., interprets) the language would be good for everyone except those who use the vagueness of the GPL as a cudgel. An appellate decision (costing another $500,000 or more at least) would be even better. However, so far the stakes involved in catering to the OSS/Linux community just haven't been worth it. In a few years, if more consumers are carrying Symbian phones, and using Walmart special Linux boxes to get their email, it may be a market worth fighting to get into -- right now, I think most companies (not including their IT departments) see it only as a pain in the ass.
I thought it was hard to pass the California bar, how did these idiots ever do it?
Whether or not drunk driving is a good idea, bad idea, or moral scourge, this issue implicates something else entirely: due process. It is about the government's ability to accuse someone of a crime and obtain a conviction on untestable "scientific" evidence. As far as you and I know, there are are two secret buttons on the back of the breathalyzer that read "drunk/not drunk", and the cop just pushes whichever button he feels like. I realize that is not the case, but the point of our justice system is that I have a right to make the government prove that isn't the case before they convict me of a crime. If anyone has trouble with this issue due to the unsympathetic nature of drunk drivers, just flip it around. Imagine someone driving around drunk as a skunk, plows into a minivan, killing mom, dad, and little sister, but then blows a 0.01 on a flawed breathalyzer, and is allowed to walk away scott free. We deserve better in our criminal justice system.
The target of a SLAPP suit can file a motion that basically freezes the entire case until the plaintiff proves they aren't engaging in SLAPP. If the company loses, they end up having to pay the defendant's attorneys fees, and, IIRC, damages as well.
In a word: yes. See, kids typically don't have any money of their own, and whatever they do have, the parents can generally take (with exceptions for bubblegum rock stars aside). Parents can also do things to their own kids that no one could do to an adult. You can ground your kid, or take away his or her car/stero/ipod/computer/ant farm. If you come into my house and take my computer it's called theft. Thus, as a parent you (rightfully) exert a higher level of control over your kids. With that control you also have a duty to exercise it, and that duty is enforced by making you responsible for your kid's mistake. The corrollary, of course, is you also have a duty to keep your kid safe. If I am asserting enough of an influence over my child to prevent him from hurting himself (physically or otherwise), that ought to be enough to keep him from hurting others.
Now, things get fuzzy when talking about teenagers near the age of majority, and it is not unusual for damage awards against parents to be reduced in consideration of their legitimate inability to have prevented the malfeasence. But when you are talking in the strict sense, the child is considered as an extension of the parent for purposes of legal liabliity. (The classic case is of a 4 year old pulling the chair out from under an old lady while his mother watches. The 4 year old can't pay medical bills.)
In this specific case, it sounds like the assistant principal should get a life. A previous poster suggested "guilty but no money" -- that is actually a very common occurence in libel/slander cases. The law treats damages separate from whether or not you were defamed. Thus, she could sue only to establish that she is NOT a lesbian, but receive only nominal damages (e.g., $1) because nobody believed or cared whether she was.
Someone else suggested that refusing to hire someone on the basis of sexual orientation would be discrimination. Only in certain places. Some states, and many cities have taken it upon themselves to make sexual orientation a protected status (e.g., Washington D.C., San Francisco), and in a few cases gay people have succeeded in asserting a gender or marital status discrimination claim in lieu of sexual orientation - but nothing under federal law prohibits discrimination on the basis of sexuality. In the vast majority of America it is perfectly legal to tell someone "we don't hire faggots." Sad, but true.
Don't be so eager for "a strong anti-EULA case." The (in)famous Betamax case established fairly user-favorable rules for end-users. The recent Kazaa case case rolled some of those rights back. "Strong cases" cut both ways, and we lawyers usually say: big cases make for bad law. What you really need are lots and lots of "small" cases that mostly reach the same conclusions.
Thank you & bladesjester for taking on my naive question. My understanding, however (and probably wrong) is that the metric isn't the quantity of earnings, but the percentage relative to costs. So companies that predict a $.10 return this quarter are smacked if they don't predict $.12 next quarter. I agree that some companies should grow through opening new markets or entering existing markets. But my preception is that a healthy company that serves a particular market and is content to earn the same decent return on its costs year-after-year gets punished. But, if I owned a small or medium size business and earned 5% return every year I might be content with that, considering my personal out-of-pocket is zero. But I would get punished by Wall Street if I attempted to go public. The entire Wall Street mentality seems to encourage the slash-and-burn method of corporate growth. Companies that once spent millions investing in potentially speculative R&D (e.g., HP, AT&T/Bell) slashed all of that (e.g. Agilent, Lucent), in favor of the quick buck. Entering new markets is also a finite plan. What will Walmart do when there are no other grocery/general stores in the country? Just like McDonalds got hammered recently because they had saturated the domestic market and weren't doing well overseas. But the fact is, McDonalds will probably continue to sell just as many hamburgers for just as much money here in the U.S., so why are they fundamentally a bad company for not opening new stores? This method of appeasing Wall Street is the source of the growing monopolies by certain businesses like Walmart.
I agree that the bottom line is very important (shareholders or no shareholders), but I want to add a couple of additional thoughts about "shareholders" today.
First, when people think of "shareholders" they think of individuals -- even if it is wealthy individuals like Warren Buffet. But that isn't the reality. The "shareholders" with weight are the large institutions -- i.e. mutual funds and pension programs. The NY and California public employee pension funds are 2 of the most powerful investors on Wall Street now, and have begun using that power to drag some social responsibilty out of corporations.
Second, shareholders -- of whatever type -- seem to me, a non-financial person, to be a very fickle lot. About every 20 years the criteria for what makes something a "good" company changes. Once, it was sales numbers. Then, in probably the '60s or '70s, it shifted to dividends. Dividends isn't a bad metric, because it combines two factors: (1) how much profit the company is making, and (2) how much it is willing to give back to the shareholders. Plus, the dividend is a direct and renewable return on your investment. I may take 4% return on my stock this year, and, without doing anything, take another 4% next year. If I look only to share price, then I have to sell my shares to realize the gain, leaving me with no future return. In the past 10 years or so the focus has shifted to earnings growth -- i.e., how much MORE profit the company made this year over last. I just cannot figure out the logic of using that as a metric. If a company that earned 5% last year announces it is going to make 10% this year, that tells me one of two things: either you are admitting you are incompetent, and could have earned 10% this year; or you are planning to slash and burn for the sake of immediate return without view towards the future. I would point to H-P as probably the epitome of that kind of thinking.
So, maybe one of you financial types can explain to me why I should want stock in a company that exhibits good earnings growth, particularly when almost no company actually pays a dividend worth discussing anymore.
There are a number of exemptions to FOIA, of which national security is only one. I have not seen the responses given in this case, but I would speculate that they included the (b)(4) exemption (Trade secrets, commerical or financial info) and (b)(5) (privileged inter- & intra-agency memoranda and letters), which are probably the two most frequently used exemptions. A full list of the exemptions can be easily found through a Google search. E.g., http://www.corporateservices.noaa.gov/~foia/foiaex .html.
In the Wikipedia article linked there is an interesting description of the problems with keeping UNIX time consistent with UTC. UTC incorporates leap-seconds to keep "time" consistent with what is, really, an arbitrary analog basis: i.e. our perception of the physical world. UTC is therefore trying to roughly approximate an analog condition through periodic arbitrary adjustments (note, UTC is never "perfectly attuned" to the astronomical position of the earth). TAI (atomic time) is a "digital" represenation of time: e.g. a second is a known quantity, and we count one after the other forever and ever. Because UNIX time_t is based on UTC, coversions have to be done to consult tables of leap seconds, and, what's worse, time_t can produce ambiguous results when referring to events occuring during a leap second.
At this kind of precision, the time-user is almost certainly going to be using a digital-based system (i.e. a computer), so why not use a digital time scale?
The proposed 500-year leap-hour may seem to be "pushing the problem down the road", but that isn't necessarily a bad thing. Instead of everyone having to constantly make adjustments for leapseconds all the time, there is one big event that reconciles digital time with our "perception" -- and it only occurs when the error in perception approaches the level of significance (i.e. when people might actually start to notice a problem by looking at the sun). As it is now the fixed-timezones mean that solar-noon can occur 30 minutes or more before or after "clock noon" (e.g., in Michigan, which is more than 1/2 an hour ahead of the meridian basis for the EST, noon can occur as late as 12:40pm). It doesn't cause any great inconvenience. In fact, twice a year we happily change the "clock time" of solar noon by a whole hour in either direction (eg daylight savings).
If we are going to be talking about time kept by computers, lets do it in a way that's convenient to the computers (e.g. TAI). Most scientists should benefit. The astronomers only suffer because they have already invested huge amounts in adjusting thier digital systems to the analog representation of UTC. But astronomers also already have to adjust for Sidereal time, terrestrial time etc. when pointing their telescopes, so TAI doesn't really make their jobs any harder.