"so if I patent my nifty new super bode imaginging system, I can only enforce my patentent after I manage to get financing? hello, anybody home?"
Hello, don't go with a mini-patent then?
"That would raise the cost, and put an extremely heavy burden on the USPTO. Thus increading the cost of patents. You can already get the office to reexamine with a small fee."
RTFA. "Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent."
The examination by the USPTO only comes about if the *patentee* sues. You don't have to sue to get a patent invalidated.
I see a lot of comments from people that obviously didn't read the article. Some have made some good points, for those that did.
After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.
1. Eliminates the upfront burden on the patent office. 2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent. 3. The first step in any litigation is an examination by the USPTO. 4. These mini-patents can be challenged via prior art with a small fee. 5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.
Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.
Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.
A license does not bind me unless it is legal. There are rights that I cannot sign away even if I wanted to.
I am bound by Copyright law, not licenses made by third parties who think that my purchase of their works implies some type of implicit agreement.
I most certainly bought a copy of the content. What media it is on is immaterial. I could just as soon pay the author to sing to me and I tape the performance and pay him for that performance and the copy of it. I paid for the content, not a license to listen. That is what copyright holders may wish the law was written this way, but that is not how it is(for now). Also review the numerous judicial decisions that make up what is commonly referred to as the First Sale Doctrine. And before you say that I'm just selling the media, consider this: What are people willing to pay me for my copy of the "media"? I bet it has something to do with the content of that media. Two books are similar "media" but one is worth more than the other, and it is due to the content.
Copyright holders have tried in the past to create "licenses" that forbid you to sell your copy of their works. That is how the First Sale Doctrine came to be, a reaffirmation of my rights, not a creation of a right. It is quite simple: I own the copy of the content that I purchased, and I may resell that copy. If things were as you say they were, then copyright holders could forbid you to sell your copy of the media because the person you sell it to did not get a "license" from the author to view the content. As many know, this has been struck down again and again in court under the First Sale Doctrine.
I can certainly play a song with my band from a CD I purchased if we do it for *our private amusement*. Just not for public performance or commercial benefit without consent of copyright holder.
At this point I'll just conclude you are either a troll or playing Devil's Advocate.
First, that list of "criticism, comment, news reporting, education, scholarship or research" is not all inclusive. They are examples of fair use, not a checklist.
Well lets look at what they advise are criteria for determining whether something is fair use or not:
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; I'm pretty sure my use of my copy of l3wd d00dz CD is not commercial
(2) the nature of the copyrighted work; you tell me
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and Obviously my copy is a full copy, but I am not making this copy available to the public. That is the crux of most people's problems with copyright. It's clearly understandable for the average person that the copyright owner should have control of his works for publication and distribution to the public, but *my personal* copy is not for public use!
(4) the effect of the use upon the potential market for or value of the copyrighted work. Since my copying is for my private use and I am not publishing, distributing, or reselling those copies, the effect is none. And no, selling multiple copies of media to me doesn't count. Why? Think about it. What is my effect of the use of my personal copies upon the market? I've already bought the work, so I have met the goals of Copyright.
Also remember, you aren't given rights, you have them from the start. We allow certain liberties and actions to be curtailed or made illegal for the benefits of society and government.
In other words, I would normally have the full right to copy anything I want, anyway I want. Copyright law is meant to curtail this liberty so society would benefit from the economical encouragement that a limited(supposedly) monopoly grants authors, in the hopes such incentive would lead to creation and continuation of works.
Why do you think laws like the DMCA are lobbied for? It's to curtail rights you currently have. Copyright laws do not give you rights, they limit or take them away. Again, this is supposed to be for the greater good of society but of the last 20 years I believe it has been for the benefit of the few instead of the many.
Unfortunately most people believe in terms of what you are told you can do instead of what you can do and are told you can't. Fortunately the framers of our Constitution were not of the former mindset but the latter.
>They certainly have the right if you sign a contract giving them that right.
No, actually just because something is in the terms doesn't mean that it can be legally enforced. SOL because you put your name on the line isn't really a legal defense ACME can use. For example, just because the contract reads that you have to give them your first born child doesn't mean that it's an enforceable contract clause even if you sign the contract. People that read contracts and then write opinions that people are "just out of luck" deserve the karma that comes with such a shallow statement.
Secondly, they cannot determine violation of law. That is a function of the courts. They may impose limits on your use of the vehicle(not above 55mph) but they can't say "You violated speed limits in these three states, so we're going to fine you, no conviction necessary". The contract clause states that you may not exceed *posted* limits, and is in fact the singular criteria for violation. Therefore locality and speeding laws of the locality are necessary in order to determine whether you were in violation of the contract clause. But the only one who legally can make a determination of whether you were in violation of those laws is the courts. The rental agency could present the evidence, if allowed, in your appearance but the courts must rule as to whether or not a violation has occured. No matter how accurate or foolproof the technology, until I'm convicted in a court of law I've violated no law. If I have not violated any law, therefore I must have been obeying the speed limits. Hence I could not have been speeding. Therefore no matter what your data says, you've no grounds to enforce this clause.
This is different than a previous posting where the person said "We already prohibit some types of behavior, like drinking".This restriction of behavior is not tied to any law. Had they said "if found driving intoxicated above legal limits" then they'd be in the same boat.
If you were ticketed while speeding in the vehicle and ultimately convicted in court of speeding, then I could see the clause being contractually and legally enforceable.
Courts will decide whether you are speeding, and courts will decide whether this clause is legal.
A simple change in wording of this contract would resolve the issue. As offensive as it is, I see no issues with "fining" an individual if the offense is legally proven.
Wrong. It has everything to do with speeding laws. Notice the clause was worded so that if you broke *posted* limits you were in violation. I believe speed limit signs are posted due to speeding laws.:)
This is vigilantism. You can't take the law into your own hands. Basically they have tied their clause to a violation of a law, therefore they made the determination of whether you broke the law. Then "fined" you for it. Sorry, determining guilt and fines are the purview of the courts.
>They certainly have the right if you sign a contract giving them that right.
No, actually just because something is in the terms doesn't mean that it can be legally enforced. SOL because you put your name on the line isn't really a legal defense ACME can use. For example, just because the contract reads that you have to give them your first born child doesn't mean that it's an enforceable contract clause even if you sign the contract. People that read contracts and then write opinions that people are "just out of luck" deserve the karma that comes with such a shallow statement.
Secondly, they cannot enforce laws. That is a function of the courts. They may impose limits on your use of the vehicle(not above 55mph) but they can't say "You violated speed limits in these three states, so we're going to fine you". That is not their jobs, they don't have any legal authority to enforce state law. Only the courts may fine you for violation of state laws. There is a difference.
Slashdot was not condoning anything. What it was doing was highlighting how a company used technology to "enforce" speed laws. Well guess what, it isn't up to corporations to define legal limits. Or to enforce. Or to prosecute without due process. Or to collect fines involuntarily(and it was, just because you signed the contract doesn't mean that contract is legal).
I believe the correct word for this is vigilantism. Taking the enforcement of the law into your own hands. Guess what, that's illegal too.
Only the courts can enforce fines for the breaking of laws. Had ACME provided this evidence to the local authorities in those regions where the speeding laws were supposedly broken, that would have been one thing. This is another.
Remember next time that I complain about an officer of the law catching me and ticketing me for flouting of the law, he is legally authorized to do so. Remember that next time you read about a child killed by a speeder who just couldn't wait that much longer to get somewhere, they were prosecuted by the courts.
I swear, this is just another example of people who are willing to give up rights(to the wrong people even!) in the name of "safety" and "protecting the children".
Commonly when such words are used they are meant to strike sympathy and compassion in the reader to such a level that the reader will not think rationally, just reactively. This is a tried and true tactic of anyone trying to push their agenda when such agenda, when rationally thought out, would be offensive or resisted by the reader.
If corporation X sold you enemas that tracked you, and then had a "wrap-through" agreement on the wrapping of the agreement that said you couldn't commit illegal acts while using their enema's or they could automatically fine you, what would you think of that?
Instead of posting emotion-charged diatribe, how about a rational argument for why it should be legal for such company to do so?
I think your quite smug in your own assessment of the Professor. Your words paint him as a smartass, but what by your words have you painted yourself as? Something about a teapot and kettle come to mind. So I'll be straightforward, call myself a smartass, acknowledge that I'm possibly being somewhat hypocritical since I'll attack your opinions as you have attacked him, and address your opinions with my own.
In respect to smartass, go to that very page on RIAA's site you refer to and check out their words on their efforts to protect free speech. RIAA's behavior comes across as "We're all for free speech, as long as it's good for us. If it's bad, we'll sue." Hiding behind a law you helped draft, lobby, and get passed does not veil them from their true intentions. It makes them hypocrites.
As far as doing this for his own good as you assert, hmm, I guess the RIAA/SMDI lawsuit threat had no benefit for them, either? Trying to attack one person for the behavior exhibited in kind by the other seems to me, and I apologize for the insult even though it's intentional, hypocritical itself. And pointing out such things will have little if any legal impact anyways. I doubt that the defendants in this case will use "He's just doing this for his own good" as a defense. That he or RIAA/SMDI get publicity (good or bad) is ancillary, a byproduct which has very little legal worth.
The RIAA has been very clear in communicating to everyone that they have no intention to sue Professor Felten.
Well we all know what path good intentions leads to. Guess the Professor is too smartass to take it. Also, when you threaten to sue over an issue and then say "Umm, not him, specifically" even though he is a part of the work at contention, your message gets watered down. I don't think that's "very clear" at all. In fact, that just clouds the issues and makes it even less clear what their real intent is(was). I think it would be extremely naive for the Professor to take RIAA/SMDI on their word and supposed intentions.
So why is this case happening?
Hmm, maybe it's because RIAA/SMDI already threatened (if indirectly) before? And since they want to publish their works in the future, the only alternative left is to seek protection from future threats again? Your right, his behaviour is obviously illogical and self-promoting, so let's just call him names.
Don't let Felten distract you from the real DMCA issue
I won't, and I won't let personal attacks against him sway me the other way either. It is a "real" issue, the fact that you don't like the manner in which it is being addressed or by who doesn't make it any less so.
Err, actually you've got it backwards. E predated Gnome, and in most instances where they overlap, it is Gnome that duplicated a feature that was in E ( or any other WM).
With the advent of destop managers, of which there are two main competitors(KDE, Gnome), it's up to the WM developers to decide to go back and remove the "overlapping" functionality. Or detect if a desktop manager is running and disable that functionality.
For a lot of people that's a hard pill to swallow, especially given that you don't know for certain your users are going to be running ANY desktop software. The path of least resistance is just leave the code be.
Slashdot Mirror
"so if I patent my nifty new super bode imaginging system, I can only enforce my patentent after I manage to get financing? hello, anybody home?"
Hello, don't go with a mini-patent then?
"That would raise the cost, and put an extremely heavy burden on the USPTO. Thus increading the cost of patents. You can already get the office to reexamine with a small fee."
RTFA. "Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent."
The examination by the USPTO only comes about if the *patentee* sues. You don't have to sue to get a patent invalidated.
I see a lot of comments from people that obviously didn't read the article. Some have made some good points, for those that did.
After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.
1. Eliminates the upfront burden on the patent office.
2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent.
3. The first step in any litigation is an examination by the USPTO.
4. These mini-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.
Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.
Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.
This is quite wrong and utter nonsense.
A license does not bind me unless it is legal. There are rights that I cannot sign away even if I wanted to.
I am bound by Copyright law, not licenses made by third parties who think that my purchase of their works implies some type of implicit agreement.
I most certainly bought a copy of the content. What media it is on is immaterial. I could just as soon pay the author to sing to me and I tape the performance and pay him for that performance and the copy of it. I paid for the content, not a license to listen. That is what copyright holders may wish the law was written this way, but that is not how it is(for now). Also review the numerous judicial decisions that make up what is commonly referred to as the First Sale
Doctrine. And before you say that I'm just selling the media, consider this: What are people willing to pay me for my copy of the "media"? I bet it has something to do with the content of that media. Two books are similar "media" but one is worth more than the other, and it is due to the content.
Copyright holders have tried in the past to create "licenses" that forbid you to sell your copy of their works. That is how the First Sale Doctrine came to be, a reaffirmation of my rights, not a creation of a right. It is quite simple: I own the copy of the content that I purchased, and I may resell that copy. If things were as you say they were, then copyright holders could forbid you to sell your copy of the media because the person you sell it to did not get a "license" from the author to view the content. As many know, this has been struck down again and again in court under the First Sale Doctrine.
I can certainly play a song with my band from a CD I purchased if we do it for *our private amusement*. Just not for public performance or commercial benefit without consent of copyright holder.
At this point I'll just conclude you are either a troll or playing Devil's Advocate.
First, that list of "criticism, comment, news reporting, education, scholarship or research" is not all inclusive. They are examples of fair use, not a checklist.
Well lets look at what they advise are criteria for determining whether something is fair use or not:
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
I'm pretty sure my use of my copy of l3wd d00dz CD is not commercial
(2) the nature of the copyrighted work;
you tell me
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Obviously my copy is a full copy, but I am not making this copy available to the public. That is the crux of most people's problems with copyright. It's clearly understandable for the average person that the copyright owner should have control of his works for publication and distribution to the public, but *my personal* copy is not for public use!
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Since my copying is for my private use and I am not publishing, distributing, or reselling those copies, the effect is none. And no, selling multiple copies of media to me doesn't count. Why? Think about it. What is my effect of the use of my personal copies upon the market? I've already bought the work, so I have met the goals of Copyright.
Also remember, you aren't given rights, you have them from the start. We allow certain liberties and actions to be curtailed or made illegal for the benefits of society and government.
In other words, I would normally have the full right to copy anything I want, anyway I want. Copyright law is meant to curtail this liberty so society would benefit from the economical encouragement that a limited(supposedly) monopoly grants authors, in the hopes such incentive would lead to creation and continuation of works.
Why do you think laws like the DMCA are lobbied for? It's to curtail rights you currently have. Copyright laws do not give you rights, they limit or take them away. Again, this is supposed to be for the greater good of society but of the last 20 years I believe it has been for the benefit of the few instead of the many.
Unfortunately most people believe in terms of what you are told you can do instead of what you can do and are told you can't. Fortunately the framers of our Constitution were not of the former mindset but the latter.
No, actually just because something is in the terms doesn't mean that it can be legally enforced. SOL because you put your name on the line isn't really a legal defense ACME can use. For example, just because the contract reads that you have to give them your first born child doesn't mean that it's an enforceable contract clause even if you sign the contract. People that read contracts and then write opinions that people are "just out of luck" deserve the karma that comes with such a shallow statement. Secondly, they cannot determine violation of law. That is a function of the courts. They may impose limits on your use of the vehicle(not above 55mph) but they can't say "You violated speed limits in these three states, so we're going to fine you, no conviction necessary". The contract clause states that you may not exceed *posted* limits, and is in fact the singular criteria for violation. Therefore locality and speeding laws of the locality are necessary in order to determine whether you were in violation of the contract clause. But the only one who legally can make a determination of whether you were in violation of those laws is the courts. The rental agency could present the evidence, if allowed, in your appearance but the courts must rule as to whether or not a violation has occured. No matter how accurate or foolproof the technology, until I'm convicted in a court of law I've violated no law. If I have not violated any law, therefore I must have been obeying the speed limits. Hence I could not have been speeding. Therefore no matter what your data says, you've no grounds to enforce this clause. This is different than a previous posting where the person said "We already prohibit some types of behavior, like drinking".This restriction of behavior is not tied to any law. Had they said "if found driving intoxicated above legal limits" then they'd be in the same boat. If you were ticketed while speeding in the vehicle and ultimately convicted in court of speeding, then I could see the clause being contractually and legally enforceable. Courts will decide whether you are speeding, and courts will decide whether this clause is legal. A simple change in wording of this contract would resolve the issue. As offensive as it is, I see no issues with "fining" an individual if the offense is legally proven.
Wrong. It has everything to do with speeding laws. Notice the clause was worded so that if you broke *posted* limits you were in violation. I believe speed limit signs are posted due to speeding laws. :)
This is vigilantism. You can't take the law into your own hands. Basically they have tied their clause to a violation of a law, therefore they made the determination of whether you broke the law. Then "fined" you for it. Sorry, determining guilt and fines are the purview of the courts.
No, actually just because something is in the terms doesn't mean that it can be legally enforced. SOL because you put your name on the line isn't really a legal defense ACME can use. For example, just because the contract reads that you have to give them your first born child doesn't mean that it's an enforceable contract clause even if you sign the contract. People that read contracts and then write opinions that people are "just out of luck" deserve the karma that comes with such a shallow statement.
Secondly, they cannot enforce laws. That is a function of the courts. They may impose limits on your use of the vehicle(not above 55mph) but they can't say "You violated speed limits in these three states, so we're going to fine you". That is not their jobs, they don't have any legal authority to enforce state law. Only the courts may fine you for violation of state laws. There is a difference.
Slashdot was not condoning anything. What it was doing was highlighting how a company used technology to "enforce" speed laws. Well guess what, it isn't up to corporations to define legal limits. Or to enforce. Or to prosecute without due process. Or to collect fines involuntarily(and it was, just because you signed the contract doesn't mean that contract is legal).
I believe the correct word for this is vigilantism. Taking the enforcement of the law into your own hands. Guess what, that's illegal too.
Only the courts can enforce fines for the breaking of laws. Had ACME provided this evidence to the local authorities in those regions where the speeding laws were supposedly broken, that would have been one thing. This is another.
Remember next time that I complain about an officer of the law catching me and ticketing me for flouting of the law, he is legally authorized to do so. Remember that next time you read about a child killed by a speeder who just couldn't wait that much longer to get somewhere, they were prosecuted by the courts.
I swear, this is just another example of people who are willing to give up rights(to the wrong people even!) in the name of "safety" and "protecting the children".
Commonly when such words are used they are meant to strike sympathy and compassion in the reader to such a level that the reader will not think rationally, just reactively. This is a tried and true tactic of anyone trying to push their agenda when such agenda, when rationally thought out, would be offensive or resisted by the reader.
If corporation X sold you enemas that tracked you, and then had a "wrap-through" agreement on the wrapping of the agreement that said you couldn't commit illegal acts while using their enema's or they could automatically fine you, what would you think of that?
Instead of posting emotion-charged diatribe, how about a rational argument for why it should be legal for such company to do so?
In respect to smartass, go to that very page on RIAA's site you refer to and check out their words on their efforts to protect free speech. RIAA's behavior comes across as "We're all for free speech, as long as it's good for us. If it's bad, we'll sue." Hiding behind a law you helped draft, lobby, and get passed does not veil them from their true intentions. It makes them hypocrites.
As far as doing this for his own good as you assert, hmm, I guess the RIAA/SMDI lawsuit threat had no benefit for them, either? Trying to attack one person for the behavior exhibited in kind by the other seems to me, and I apologize for the insult even though it's intentional, hypocritical itself. And pointing out such things will have little if any legal impact anyways. I doubt that the defendants in this case will use "He's just doing this for his own good" as a defense. That he or RIAA/SMDI get publicity (good or bad) is ancillary, a byproduct which has very little legal worth.
The RIAA has been very clear in communicating to everyone that they have no intention to sue Professor Felten.
Well we all know what path good intentions leads to. Guess the Professor is too smartass to take it. Also, when you threaten to sue over an issue and then say "Umm, not him, specifically" even though he is a part of the work at contention, your message gets watered down. I don't think that's "very clear" at all. In fact, that just clouds the issues and makes it even less clear what their real intent is(was). I think it would be extremely naive for the Professor to take RIAA/SMDI on their word and supposed intentions.
So why is this case happening?
Hmm, maybe it's because RIAA/SMDI already threatened (if indirectly) before? And since they want to publish their works in the future, the only alternative left is to seek protection from future threats again? Your right, his behaviour is obviously illogical and self-promoting, so let's just call him names.
Don't let Felten distract you from the real DMCA issue
I won't, and I won't let personal attacks against him sway me the other way either. It is a "real" issue, the fact that you don't like the manner in which it is being addressed or by who doesn't make it any less so.
Now I can pay for the extra latency! WooHoo!
Err, actually you've got it backwards. E predated Gnome, and in most instances where they overlap, it is Gnome that duplicated a feature that was in E ( or any other WM).
With the advent of destop managers, of which there are two main competitors(KDE, Gnome), it's up to the WM developers to decide to go back and remove the "overlapping" functionality. Or detect if a desktop manager is running and disable that functionality.
For a lot of people that's a hard pill to swallow, especially given that you don't know for certain your users are going to be running ANY desktop software. The path of least resistance is just leave the code be.d00d, I 0wnZ j00 glV3 M3 da m00l@ I can just see it now. Death by d00d and now I got to pay for the right to get gibbed. Go figure. What's next? :)