All this talk about fair use and quality of originals is interesting, but slashdotters have to remember that fair use -- in the legal sense -- is a *defense*, not a "right." Not only that, it's a pretty sketchy one that gives a court a lot of discretion. You don't have fair use "right" to copy/make derivative works/etc. for, say, research, even though sec. 107 of the copyright act explicitly mentions the purpose. You only have a defense (call it a justification, call it an excuse, it's still a defense). Thus, Michael can't say that "not being able to make perfect copies defeats my fair use." He has to say, "I needed a perfect copy for my particular fair use." HUGE difference!
Let me just say that if you took this attitude as a lawyer, you would have no clients. Remember that your first duty is to your client, and your client -- in getting a patent -- wants this: the broadest possible patent on the invention that will be valid and defensible. Period. This is pretty obvious: the broader the patent, the better the patent "monopoly" awarded, and the more the patentee can enforce it. Anything less might get you fired.
Sure, a showing of prior art will invalidate the patent in an interference, but that's a risk that goes into the balance of giving the client what he wants.
Now, if you want to be some sort of patent vigilante, then that's a different story. But a patent lawyer can't live on litigation alone.
And yes, I'm a former IT professional turned lawyer.
Wow, this is surprisingly ignorant, no offense. I would say, in rebuttal, that for every lawyer representing a person who would win based on "specificity," the other side's lawyer -- assuming they have no "specificity"-based arguments -- will argue for "intent." This is what you see ALL THE TIME. In any event, intent is ALWAYS relevant in a "specificity"-heavy case. Why do you think the current Supreme Court -- remember that judges/justices are all lawyers -- split all the time? At least with respect to challenging the constitutionality of statutes, it's quite often a conflict between specific words and congressional intent.
This is nice, but MC is suing for trademark infringement, not copyright infringement. Completely different things.
It would be a fair suit for trademark dilution -- it's certainly a "tarnishment." The doctrine of trademark dilution is broader than traditional trademark law, so satire/parody wouldn't even be a question. But, as someone here pointed out, MC seems to have waited a long time to bring suit, so that goes against them. A trademark owner needs to protect his/her mark as vigorously as possible to keep from losing it.
Um, whatever dictionary.com says, the use of impunity in the sentence means that the alleged infringers acted AS IF they were exempted from punishment or loss. I don't think any English speaker with proper diction would understand this sentence in any other way.
Huh? The only CCNV v. Reid case I could find affirms the legislated definition of "work made for hire". The only way an author "loses rights" based on that case is when so much editorial control is influenced as to make a case for joint authorship between the parties. It has nothing to do with the "work made for hire" definition.
I'm not sure how you get this reading. It doesn't "affirm" the definition of "work made for hire." It explains how to figure out what "work made for hire" means; specifically, how to interpret section 101's definition for "work made for hire" -- i.e., the court should look to the common law of agency to determine if there's an employer-employee relationship. Thus, it has *everything* to do with the work made for hire definition, because sometimes it's hard to say exactly when you have an employer-employee relationship. (If that's what you mean by "affirm", well, that's not how lawyers use the term.)
Also, your reading that "the only way an author 'loses rights' based on that case is when so much editorial control is influenced as to make a case for joint authorship between the parties" isn't entirely right. While that was a possibility in CCNV, the more important part of the case -- and the part that I was talking about -- is the explanation of "work made for hire," because if one uses agency common law to determine what work made for hire is, then you don't need contracts, etc. to fall under the definition. In CCNV, the court thought that CCNV might still be a co-author because they'd had a lot of say in the design; just not enough to be dispositive. This might be different in other cases where CCNV is just as applicable.
Like the CNN article says, this case comes out of Tasini v. NYT. Pretty much the same facts, and the court said that the NYT can't publish the articles in the database.
Why this case important: The court gets to decide the nature of the relationship between dead tree newspapers and digital versions of the same. We are all used to the non-linear nature of the web -- we search pages, "deep link" to sites' pages, etc. Same content, but vastly different way of getting to the content. For a simple example, is The New York Times the same as www.nyt.com? This is essentially the issue the court needs to determine.
The arguments, of course, stem from this issue. The most important thing to note is that neither party disputes that the freelance writers own the copyright to their works, and that the NYT owns the copyright to its collective work that is The New York Times (The NYT employees, of course, wrote their articles "work for hire" and thus don't own their copyright.) This is hugely important to understand.
Some of the legal background first: a collective work is a separately copyrightable creative work that collects copyrighted (or non-copyrighted) material. The copyright status of each work in a collective work remains the same. An owner of a copyright in a collective work has the right to make revisions and distribute new editions of the collective work without infringing on the copyrights of the individual works.
Now these are the arguments:
Tasini (freelance authors) argument -- We still own the copyrights to our works. You, NYT, can do anything you want with your newspaper, because you own the copyright to it, and have licensed our works for inclusion. But when you put them into a database, you create a NEW derivative work that requires you to come back to us and get a new license for the new collective work.
NYT argument -- We own the copyright to the collective work of the newspaper we put together. The database and website is simply a digital version of that collective work (along with some helpful search functions; aren't computers cool?). There's NO NEW work; the database/website is simply a revision of the collective work in which we own a copyright, and of course we have the right to make the revision without consulting or paying you, Tasini.
This is wrong. A contract is certainly not required to call a work by an author "working for hire." The case on point is CCNV v. Reid, a Supreme Court case that explained how to tell if a work is a work for hire. It depends entirely on the nature of the relationship between the author and the person who commissioned the author's work. The author doesn't have to be an employee, and doesn't have to have a contract specifying (or rather denying) rights in order to "lose" them.
Incidentally, with respect to the portrait photographer: it depends on the nature of the relationship, but the photographer usually keeps his rights 1) because it's in the agreement you signed with him pre-photo-taking, and 2) (even if no agreement was signed) because YOU don't control anything (except for your pose and smile) in the picture-taking process.
The line in the Copyright Act you refer to doesn't apply to software; software has been copyrightable for a long time.
That line is meant to apply to situations like this: you drew up instructions to build something, but you didn't get a patent. Someone takes a peek at your instructions (maybe you let the person see it), and subsequently builds the thing (and sells/distributes/uses it). You want to sue for infringement, but since you didn't get a patent, you try to sue under copyright (assuming you have one). That line says that you can't sue as to the infringement of building the thing; copyright only extends as far as the expression you put down. The idea itself, since it's patentable, can't be protected by copyright.
Software instructions don't fall under procedure, process, system, or method of operation because those instructions aren't generally considered patentable (patent law is loosening up on this point, especially as to algorithms and not-too-crazy-extensions of business method patents, but it's still a general rule).
Domain names and trademarks have a weird interaction, so even having, say, listar.org would probably not help. Aside from the Anticybersqatting Act, Trademark Dilution laws tend to cover domain names/trademarks, and the dilution laws are -- to say the least -- big-corporation-oriented.
is to register as a trademark. Without registration, you have some rights, but it's nowhere near as good as a registered trademark.
I wouldn't worry too much about the "use in commerce" bit. If you want to, follow what some people have said and sell a copy of your work. But I don't think it's absolutely necessary. "Non-commercial" uses of trademarks are usually defined as uses in "expressive" forms that aren't a part of a commercial transaction. Non-commercial uses are usually not actionable as infringement, but they're also not trademarkable.
In your case -- but of course it's certainly arguable -- I would think that open source projects are less forms of expression and more like regular product development with no fee. (This is why, incidentally, ListSTAR asked you to stop using Listar -- if you weren't "commercially using" Listar, you wouldn't be infringing.) No one ever said that commercial use means that you have to get money for your product.
[disclaimer: this isn't legal advice. I'm only pointing out some information that you might find useful. For legal advice, hire counsel and tell them everything they need to know.]
Re:European Beef - or GM Rice? Gee, Tough Call.
on
Spidergoats
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· Score: 1
Uhhh... I think, in Europe, I'd be more afraid of the beef than the genetically modified rice.
I think this should serve as some sort of proof that the European agencies controlling food are not to be emulated in any way in the rest of the world.
Um, well, that's nice, but the fact is that they're still afraid of genetically-modified food, just as much as (if not more than) the (English) beef. And in any case, the problem is not the agencies that are "controlling" the food, it's the people that want legislation passed against it. This isn't something you can "emulate" -- it's the people's will...
This has certainly been done already. And there's huge resistance -- but not because no one can buy it. Consider all the pending and existent legislation in Europe against "frankenfood." The entire continent is afraid of the food itself, because it isn't strictly natural. Whether this is a justified concern is a different issue, but what can you do when consumers and governments are afraid?
This is Andersen Consulting finally getting what they deserve.
Andersen Consulting *had* to change their name. It was part of the deal with Andersen (the accounting company) when they decided to part ways for good (Andersen Consulting and Andersen had been at each other's throats for years). Now the choice of "Accenture" may not have been the best, but they couldn't use "Andersen Consulting" anymore...
Well-written, perhaps, but not well-argued. She puts forth only the arguments against copyright, not any of the well-established arguments for it. Intellectual property law, for many, many years, has tried to balance the problems she brings up -- essentially, the economic inefficiency of IP rights -- and the rights that inhere in an author's unique creation. IP law has *always* struggled with this. Don't think that lawyers or judges or even legislators have never thought about the "anti-free market" aspect of giving IP rights to creators. We all know that monopolies -- state-sanctioned or natural -- are economically inefficient. It's just that hundreds of years of authorship and trying to protect people's rights in creation have demonstrated a clear countervalue that needs to be addressed in the balance of trying to promote the social benefit of having IP in the public domain. In the same way, pointing out the "economic scarcity" and inapposition of IP and real property issue is pretty shallow, because IP law has recognized this for a long, long time. The upshot is that the focus of IP isn't promoting a free market: it's striking a balance between letting authors decide what can be done with their creations and letting the public enjoy these creations.
That said, there are still many problems in IP law and legislation. But the reason there are problems comes from the trying to strike an equitable balance between two important values.
Finally, it's funny that she puts so much importance on real property rights. No one has perfect control over the use of their real property, because perfect control would infringe on so many of other people's rights. Locke -- whom she so casually name-dropped -- gave a "fruit of the labor" justification for real property ownership: that someone who takes a piece of wood (say, from a publicly accessible forest) and spends a week of hard labor in fashioning it into a nice desk arguably owns the desk. (Or, for example, the fisherman who spends an arduous month on the open seas catching fish to sell. Or the farmer who spends a season cultivating crops from seeds...) Locke came up with this justification because of the strong counterargument that there's no reason why anyone should own anything, since everything comes from elements that "everyone" ostensibly owns (the world environment, mainly; the trees, the mountains, the oceans, etc). So Locke has a good justification for "owning" tangible property. But it can easily be used for IP -- the author who spends years writing a novel, the drug company that spends years and billions of dollars coming up with a drug.
My point is that we've been struggling with the concept of ownership in IP (and in real property) for many years, so shallow arguments like Mercer's aren't very helpful.
Generally, in corporation law, shareholders can't touch your business decisions unless you really did something bad. Even if you lost all their money, they can't sue you if you did your best and did it always with increasing corporate value in mind.
Of course, they are the ones who pick the board of directors, so they have a little say. But not to the extent you imply. (Unless, of course, you have an investor who has a controlling share!)
1) VA Linux isn't being sued for the allegedly fraudulent practices of CSFB. It's being sued for a violation of section 11, which imposes liability for misstatements or omissions on the registration statement of the IPO. One of the required bits of info for the reg statement is a description of the underwriter agreement(s). VA Linux obviously didn't disclose exactly what CSFB was doing (either because it didn't know, or because it didn't want to), so it can be liable because of the omission/misstatement. It doesn't have to be shown that VA participated in the fraud in any way; VA is strictly liable.
2) CSFB is being sued not only for VA Linux's charge, but also for fraudulently selling some of its allotment of shares (a 10(b) violation and a section 12(a)(2) violation). While 10(b) is pretty broad -- and thus VA Linux could feasibly have been within its net -- Milberg probably thought it couldn't allege all the elements of a 10b-5 violation (most likely because it didn't think it could allege that VA knew about what CSFB was doing) to include VA in the count.
3) VA's and CSFB's counsel has defended more securities class action suits than any other firm in the nation. Suffice it to say they're well-represented.
So? The point is not that one can copy digital media if one wants to, despite all the encryption available. The point is to make it as difficult as possible. This is no different than getting a good security system for your house. Without one, any burgler with a crowbar can get in and steal your stuff. Even with a security system, there's really still nothing to prevent someone from breaking in; it's just harder to be successful. Yet people still buy security systems, because they count on burglars choosing to do something less difficult with their time.
lots of them promptly go bust because they haven't the business sense they need - they understand the web, not business methods.
I think you've gotten this nearly backwards. A lot of dotcommers graduated with business degrees (MBAs and undergrad degrees), many from places like Harvard and Stanford. It's safe to assume they know more about business methods than 99.99% of people out there. As for the dotcoms run by kids, which I suspect you talk about, those that get funding are pretty much run by the VCs, who again are people that have business degrees and are ostensibly experts in running businesses.
What I think they didn't get was not how to run a business, but how to run a web business. This is an important distinction, because I would argue that very few people know how to run a web business -- and those people can't (or won't) articulate that knowledge. Bricks-and-mortar companies aren't leveraging their knowledge -- they're leveraging their bricks-and-mortar infrastructure. This, I would think, isn't the optimal way to run a web business; rather, it's a good way to take advantage of Internet efficiency.
Once we figure out how to run a web business, it'll be a new economic age. But right now, we're just trying to fit the Internet into a slightly-post-industrial-age economy.
Slashdot Mirror
All this talk about fair use and quality of originals is interesting, but slashdotters have to remember that fair use -- in the legal sense -- is a *defense*, not a "right." Not only that, it's a pretty sketchy one that gives a court a lot of discretion. You don't have fair use "right" to copy/make derivative works/etc. for, say, research, even though sec. 107 of the copyright act explicitly mentions the purpose. You only have a defense (call it a justification, call it an excuse, it's still a defense). Thus, Michael can't say that "not being able to make perfect copies defeats my fair use." He has to say, "I needed a perfect copy for my particular fair use." HUGE difference!
Let me just say that if you took this attitude as a lawyer, you would have no clients. Remember that your first duty is to your client, and your client -- in getting a patent -- wants this: the broadest possible patent on the invention that will be valid and defensible. Period. This is pretty obvious: the broader the patent, the better the patent "monopoly" awarded, and the more the patentee can enforce it. Anything less might get you fired. Sure, a showing of prior art will invalidate the patent in an interference, but that's a risk that goes into the balance of giving the client what he wants.
Now, if you want to be some sort of patent vigilante, then that's a different story. But a patent lawyer can't live on litigation alone.
And yes, I'm a former IT professional turned lawyer.
Wow, this is surprisingly ignorant, no offense. I would say, in rebuttal, that for every lawyer representing a person who would win based on "specificity," the other side's lawyer -- assuming they have no "specificity"-based arguments -- will argue for "intent." This is what you see ALL THE TIME. In any event, intent is ALWAYS relevant in a "specificity"-heavy case. Why do you think the current Supreme Court -- remember that judges/justices are all lawyers -- split all the time? At least with respect to challenging the constitutionality of statutes, it's quite often a conflict between specific words and congressional intent.
This is nice, but MC is suing for trademark infringement, not copyright infringement. Completely different things.
It would be a fair suit for trademark dilution -- it's certainly a "tarnishment." The doctrine of trademark dilution is broader than traditional trademark law, so satire/parody wouldn't even be a question. But, as someone here pointed out, MC seems to have waited a long time to bring suit, so that goes against them. A trademark owner needs to protect his/her mark as vigorously as possible to keep from losing it.
Um, whatever dictionary.com says, the use of impunity in the sentence means that the alleged infringers acted AS IF they were exempted from punishment or loss. I don't think any English speaker with proper diction would understand this sentence in any other way.
Huh? The only CCNV v. Reid case I could find affirms the legislated definition of "work made for hire". The only way an author "loses rights" based on that case is when so much editorial control is influenced as to make a case for joint authorship between the parties. It has nothing to do with the "work made for hire" definition.
I'm not sure how you get this reading. It doesn't "affirm" the definition of "work made for hire." It explains how to figure out what "work made for hire" means; specifically, how to interpret section 101's definition for "work made for hire" -- i.e., the court should look to the common law of agency to determine if there's an employer-employee relationship. Thus, it has *everything* to do with the work made for hire definition, because sometimes it's hard to say exactly when you have an employer-employee relationship. (If that's what you mean by "affirm", well, that's not how lawyers use the term.)
Also, your reading that "the only way an author 'loses rights' based on that case is when so much editorial control is influenced as to make a case for joint authorship between the parties" isn't entirely right. While that was a possibility in CCNV, the more important part of the case -- and the part that I was talking about -- is the explanation of "work made for hire," because if one uses agency common law to determine what work made for hire is, then you don't need contracts, etc. to fall under the definition. In CCNV, the court thought that CCNV might still be a co-author because they'd had a lot of say in the design; just not enough to be dispositive. This might be different in other cases where CCNV is just as applicable.
Like the CNN article says, this case comes out of Tasini v. NYT. Pretty much the same facts, and the court said that the NYT can't publish the articles in the database.
Why this case important: The court gets to decide the nature of the relationship between dead tree newspapers and digital versions of the same. We are all used to the non-linear nature of the web -- we search pages, "deep link" to sites' pages, etc. Same content, but vastly different way of getting to the content. For a simple example, is The New York Times the same as www.nyt.com? This is essentially the issue the court needs to determine.
The arguments, of course, stem from this issue. The most important thing to note is that neither party disputes that the freelance writers own the copyright to their works, and that the NYT owns the copyright to its collective work that is The New York Times (The NYT employees, of course, wrote their articles "work for hire" and thus don't own their copyright.) This is hugely important to understand.
Some of the legal background first: a collective work is a separately copyrightable creative work that collects copyrighted (or non-copyrighted) material. The copyright status of each work in a collective work remains the same. An owner of a copyright in a collective work has the right to make revisions and distribute new editions of the collective work without infringing on the copyrights of the individual works.
Now these are the arguments:
Tasini (freelance authors) argument -- We still own the copyrights to our works. You, NYT, can do anything you want with your newspaper, because you own the copyright to it, and have licensed our works for inclusion. But when you put them into a database, you create a NEW derivative work that requires you to come back to us and get a new license for the new collective work.
NYT argument -- We own the copyright to the collective work of the newspaper we put together. The database and website is simply a digital version of that collective work (along with some helpful search functions; aren't computers cool?). There's NO NEW work; the database/website is simply a revision of the collective work in which we own a copyright, and of course we have the right to make the revision without consulting or paying you, Tasini.
Hope this helps.
This is wrong. A contract is certainly not required to call a work by an author "working for hire." The case on point is CCNV v. Reid, a Supreme Court case that explained how to tell if a work is a work for hire. It depends entirely on the nature of the relationship between the author and the person who commissioned the author's work. The author doesn't have to be an employee, and doesn't have to have a contract specifying (or rather denying) rights in order to "lose" them.
Incidentally, with respect to the portrait photographer: it depends on the nature of the relationship, but the photographer usually keeps his rights 1) because it's in the agreement you signed with him pre-photo-taking, and 2) (even if no agreement was signed) because YOU don't control anything (except for your pose and smile) in the picture-taking process.
The line in the Copyright Act you refer to doesn't apply to software; software has been copyrightable for a long time.
That line is meant to apply to situations like this: you drew up instructions to build something, but you didn't get a patent. Someone takes a peek at your instructions (maybe you let the person see it), and subsequently builds the thing (and sells/distributes/uses it). You want to sue for infringement, but since you didn't get a patent, you try to sue under copyright (assuming you have one). That line says that you can't sue as to the infringement of building the thing; copyright only extends as far as the expression you put down. The idea itself, since it's patentable, can't be protected by copyright.
Software instructions don't fall under procedure, process, system, or method of operation because those instructions aren't generally considered patentable (patent law is loosening up on this point, especially as to algorithms and not-too-crazy-extensions of business method patents, but it's still a general rule).
Domain names and trademarks have a weird interaction, so even having, say, listar.org would probably not help. Aside from the Anticybersqatting Act, Trademark Dilution laws tend to cover domain names/trademarks, and the dilution laws are -- to say the least -- big-corporation-oriented.
is to register as a trademark. Without registration, you have some rights, but it's nowhere near as good as a registered trademark.
I wouldn't worry too much about the "use in commerce" bit. If you want to, follow what some people have said and sell a copy of your work. But I don't think it's absolutely necessary. "Non-commercial" uses of trademarks are usually defined as uses in "expressive" forms that aren't a part of a commercial transaction. Non-commercial uses are usually not actionable as infringement, but they're also not trademarkable. In your case -- but of course it's certainly arguable -- I would think that open source projects are less forms of expression and more like regular product development with no fee. (This is why, incidentally, ListSTAR asked you to stop using Listar -- if you weren't "commercially using" Listar, you wouldn't be infringing.) No one ever said that commercial use means that you have to get money for your product.
[disclaimer: this isn't legal advice. I'm only pointing out some information that you might find useful. For legal advice, hire counsel and tell them everything they need to know.]
Uhhh... I think, in Europe, I'd be more afraid of the beef than the genetically modified rice.
I think this should serve as some sort of proof that the European agencies controlling food are not to be emulated in any way in the rest of the world.
Um, well, that's nice, but the fact is that they're still afraid of genetically-modified food, just as much as (if not more than) the (English) beef. And in any case, the problem is not the agencies that are "controlling" the food, it's the people that want legislation passed against it. This isn't something you can "emulate" -- it's the people's will...
This has certainly been done already. And there's huge resistance -- but not because no one can buy it. Consider all the pending and existent legislation in Europe against "frankenfood." The entire continent is afraid of the food itself, because it isn't strictly natural. Whether this is a justified concern is a different issue, but what can you do when consumers and governments are afraid?
This is Andersen Consulting finally getting what they deserve.
Andersen Consulting *had* to change their name. It was part of the deal with Andersen (the accounting company) when they decided to part ways for good (Andersen Consulting and Andersen had been at each other's throats for years). Now the choice of "Accenture" may not have been the best, but they couldn't use "Andersen Consulting" anymore...
Well-written, perhaps, but not well-argued. She puts forth only the arguments against copyright, not any of the well-established arguments for it. Intellectual property law, for many, many years, has tried to balance the problems she brings up -- essentially, the economic inefficiency of IP rights -- and the rights that inhere in an author's unique creation. IP law has *always* struggled with this. Don't think that lawyers or judges or even legislators have never thought about the "anti-free market" aspect of giving IP rights to creators. We all know that monopolies -- state-sanctioned or natural -- are economically inefficient. It's just that hundreds of years of authorship and trying to protect people's rights in creation have demonstrated a clear countervalue that needs to be addressed in the balance of trying to promote the social benefit of having IP in the public domain. In the same way, pointing out the "economic scarcity" and inapposition of IP and real property issue is pretty shallow, because IP law has recognized this for a long, long time. The upshot is that the focus of IP isn't promoting a free market: it's striking a balance between letting authors decide what can be done with their creations and letting the public enjoy these creations.
That said, there are still many problems in IP law and legislation. But the reason there are problems comes from the trying to strike an equitable balance between two important values.
Finally, it's funny that she puts so much importance on real property rights. No one has perfect control over the use of their real property, because perfect control would infringe on so many of other people's rights. Locke -- whom she so casually name-dropped -- gave a "fruit of the labor" justification for real property ownership: that someone who takes a piece of wood (say, from a publicly accessible forest) and spends a week of hard labor in fashioning it into a nice desk arguably owns the desk. (Or, for example, the fisherman who spends an arduous month on the open seas catching fish to sell. Or the farmer who spends a season cultivating crops from seeds...) Locke came up with this justification because of the strong counterargument that there's no reason why anyone should own anything, since everything comes from elements that "everyone" ostensibly owns (the world environment, mainly; the trees, the mountains, the oceans, etc). So Locke has a good justification for "owning" tangible property. But it can easily be used for IP -- the author who spends years writing a novel, the drug company that spends years and billions of dollars coming up with a drug.
My point is that we've been struggling with the concept of ownership in IP (and in real property) for many years, so shallow arguments like Mercer's aren't very helpful.
Generally, in corporation law, shareholders can't touch your business decisions unless you really did something bad. Even if you lost all their money, they can't sue you if you did your best and did it always with increasing corporate value in mind.
Of course, they are the ones who pick the board of directors, so they have a little say. But not to the extent you imply. (Unless, of course, you have an investor who has a controlling share!)
[note, this isn't legal advice.]
:) I am almost a lawyer... :) One more year left!
1) VA Linux isn't being sued for the allegedly fraudulent practices of CSFB. It's being sued for a violation of section 11, which imposes liability for misstatements or omissions on the registration statement of the IPO. One of the required bits of info for the reg statement is a description of the underwriter agreement(s). VA Linux obviously didn't disclose exactly what CSFB was doing (either because it didn't know, or because it didn't want to), so it can be liable because of the omission/misstatement. It doesn't have to be shown that VA participated in the fraud in any way; VA is strictly liable.
2) CSFB is being sued not only for VA Linux's charge, but also for fraudulently selling some of its allotment of shares (a 10(b) violation and a section 12(a)(2) violation). While 10(b) is pretty broad -- and thus VA Linux could feasibly have been within its net -- Milberg probably thought it couldn't allege all the elements of a 10b-5 violation (most likely because it didn't think it could allege that VA knew about what CSFB was doing) to include VA in the count.
3) VA's and CSFB's counsel has defended more securities class action suits than any other firm in the nation. Suffice it to say they're well-represented.
So? The point is not that one can copy digital media if one wants to, despite all the encryption available. The point is to make it as difficult as possible.
This is no different than getting a good security system for your house. Without one, any burgler with a crowbar can get in and steal your stuff. Even with a security system, there's really still nothing to prevent someone from breaking in; it's just harder to be successful. Yet people still buy security systems, because they count on burglars choosing to do something less difficult with their time.
lots of them promptly go bust because they haven't the business sense they need - they understand the web, not business methods.
I think you've gotten this nearly backwards. A lot of dotcommers graduated with business degrees (MBAs and undergrad degrees), many from places like Harvard and Stanford. It's safe to assume they know more about business methods than 99.99% of people out there. As for the dotcoms run by kids, which I suspect you talk about, those that get funding are pretty much run by the VCs, who again are people that have business degrees and are ostensibly experts in running businesses.
What I think they didn't get was not how to run a business, but how to run a web business. This is an important distinction, because I would argue that very few people know how to run a web business -- and those people can't (or won't) articulate that knowledge. Bricks-and-mortar companies aren't leveraging their knowledge -- they're leveraging their bricks-and-mortar infrastructure. This, I would think, isn't the optimal way to run a web business; rather, it's a good way to take advantage of Internet efficiency.
Once we figure out how to run a web business, it'll be a new economic age. But right now, we're just trying to fit the Internet into a slightly-post-industrial-age economy.