This may seem a bit overdue, but it seems like there could be a viable defense of "laches." "Laches" is a legal defense whereby the defendant (e.g., the makers of KQ9) states that because the plaintiff (e.g. VU) knew of the ongoing activity and did not take action to stop it, that the plaintiff cannot now claim that there has been violation. Unfortunately, this would probably require that the defendant show that the plaintiff "knew" that the defendant was engaged in some sort of unpermitted activity. "Knew" in this context may be constructive (e.g., through notice) or actual (e.g., actually visiting the webpage for KQ9).
Given that the game has been in development for 5+ years, one could reasonably make the argument that VU was not actively monitoring their copyright in "King's Quest" (assuming that copyright violation is the claim).
I do not know whether the "non-profitness" of the activity matters for copright infringement/violation purposes, but I think the "laches" defense would be a stronger claim. My two cents.
"so there simply may be some confusion and assumptions made based on their local patent rules"
I would agree. From my limited understanding of patent filing systems abroad (i.e., not in the U.S.), the rest of the world is a "first to file" system - meaning of course, that the first person to file a patent for the invention is first in priority (cf. U.S., "first to invent").
Assuming that the U.K. is a "first to file" system, they simply either a) forgot or b) are confused by the fact that the U.S. is a "first to invent" system not a "first to file."
If you're curious and want to know about other "stealth" trademarks, head over to the USPTO database at: http://tess2.uspto.gov/bin/gate.exe?f=search&state =embs7e.1.1 and use "stealth[bi] & `RN > 0 & live[ld]" as your search term. You'll pull up lots of live (i.e. enforceable) trademarks still in use using the word "stealth."
If nothing else, this guy is trying to make a fast buck by playing fast and loose with the trademark laws.
This is a complete misstatment of the law. For a definition of "prior art," please see 35 U.S.C. 102(b).
If person A recieves a patent, person A cannot be sued by person B because person B holds "prior art." Rather, person B can attempt to have the patent held by person A held invalid through a declaratory judgment.
As a law student, I feel obligated to respond, if only to make a losing point:
If you have access to a law library or other material, grab a hold of A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Specifically, turn to page 1015. If you do not have a case report on hand, here is an excerpt from that page regarding transformative uses:
Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1994) (concluding that retransmission of radio broadcast over telephone lines is not transformative); UMG Recordings, Inc. v. MP3. com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y.) (finding that reproduction of audio CD into MP3 format does not "transform" the work), certification denied...
I believe that the 9th Circuit found that there was not a transformative use in converting an audio CD to its MP3 representation. However, I would agree that converting an audio CD to a pictorial representation (e.g., a.JPG or.GIF file) is a transformative use because it converts from one sensory perception (i.e. auditory) to another sensory perception (i.e. visual). In both Napster and UMG Recordings the courts seem to focus on the fact that transforming an audio CD to a MP3 does not change how that information is perceived. I would argue that by changing how the audio is perceived, that is, by converting it to a visual representation, then the resulting, visual work is a transformative one. There are three other factors to consider under the fair use exception, and we could discuss whether converting an audio CD to MP3 to JPG weighs in favor of the copier or of the copyright holder.
I don't know how many of you speak legalese, but what about a transformative use of an MP3? When determining whether a person has engaged in copyright infringement through the use of a copyrighted material, courts often look at whether the use was a transformative one. In this context, "transformative" can mean "different from."
For those of you with access to law libraries, look at Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002). The opinion in Kelly has been reissued, but it has not changed with respect to the discussion on transformative uses.
Unfortunately, I do not have the skills to implement the following idea: What if someone could take an MP3, parse the audio signal into a series of colors and/or symbols, and reproduce that music as a digital image. For example, maybe using this software would reproduce a Korn song or a New Found Glory song into a landscape, artscape, or colorscape. This would probably constitute a transformative use because the music has been converted into a digital image. The next step would be for someone to write software that would take these digital images and re-interpreting them as music. However, the decoding process should work with any images, less a court find that the decoding software is contributing to copyright infringement. I think one tenant of copyright law is that so long as there are legal, noninfringing uses of the device, then the device is generally legal (e.g., a VCR).
Anyone given any thought to making transformative uses of MP3s? This way, one could distribute an "image" of New Found Glory's "Better Off Dead" without technically committing copyright infringement.
Slashdot Mirror
This may seem a bit overdue, but it seems like there could be a viable defense of "laches." "Laches" is a legal defense whereby the defendant (e.g., the makers of KQ9) states that because the plaintiff (e.g. VU) knew of the ongoing activity and did not take action to stop it, that the plaintiff cannot now claim that there has been violation. Unfortunately, this would probably require that the defendant show that the plaintiff "knew" that the defendant was engaged in some sort of unpermitted activity. "Knew" in this context may be constructive (e.g., through notice) or actual (e.g., actually visiting the webpage for KQ9).
Given that the game has been in development for 5+ years, one could reasonably make the argument that VU was not actively monitoring their copyright in "King's Quest" (assuming that copyright violation is the claim).
I do not know whether the "non-profitness" of the activity matters for copright infringement/violation purposes, but I think the "laches" defense would be a stronger claim. My two cents.
"so there simply may be some confusion and assumptions made based on their local patent rules"
I would agree. From my limited understanding of patent filing systems abroad (i.e., not in the U.S.), the rest of the world is a "first to file" system - meaning of course, that the first person to file a patent for the invention is first in priority (cf. U.S., "first to invent").
Assuming that the U.K. is a "first to file" system, they simply either a) forgot or b) are confused by the fact that the U.S. is a "first to invent" system not a "first to file."
Good point.
If you're curious and want to know about other "stealth" trademarks, head over to the USPTO database at: http://tess2.uspto.gov/bin/gate.exe?f=search&state =embs7e.1.1 and use "stealth[bi] & `RN > 0 & live[ld]" as your search term. You'll pull up lots of live (i.e. enforceable) trademarks still in use using the word "stealth."
If nothing else, this guy is trying to make a fast buck by playing fast and loose with the trademark laws.
This probably won't be seen by anyone but...
This is a complete misstatment of the law. For a definition of "prior art," please see 35 U.S.C. 102(b).
If person A recieves a patent, person A cannot be sued by person B because person B holds "prior art." Rather, person B can attempt to have the patent held by person A held invalid through a declaratory judgment.
-BB
Shark72,
.JPG or .GIF file) is a transformative use because it converts from one sensory perception (i.e. auditory) to another sensory perception (i.e. visual). In both Napster and UMG Recordings the courts seem to focus on the fact that transforming an audio CD to a MP3 does not change how that information is perceived. I would argue that by changing how the audio is perceived, that is, by converting it to a visual representation, then the resulting, visual work is a transformative one. There are three other factors to consider under the fair use exception, and we could discuss whether converting an audio CD to MP3 to JPG weighs in favor of the copier or of the copyright holder.
As a law student, I feel obligated to respond, if only to make a losing point:
If you have access to a law library or other material, grab a hold of A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Specifically, turn to page 1015. If you do not have a case report on hand, here is an excerpt from that page regarding transformative uses:
Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1994) (concluding that retransmission of radio broadcast over telephone lines is not transformative); UMG Recordings, Inc. v. MP3. com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y.) (finding that reproduction of audio CD into MP3 format does not "transform" the work), certification denied...
I believe that the 9th Circuit found that there was not a transformative use in converting an audio CD to its MP3 representation. However, I would agree that converting an audio CD to a pictorial representation (e.g., a
What are your thoughts?
I don't know how many of you speak legalese, but what about a transformative use of an MP3? When determining whether a person has engaged in copyright infringement through the use of a copyrighted material, courts often look at whether the use was a transformative one. In this context, "transformative" can mean "different from."
For those of you with access to law libraries, look at Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002). The opinion in Kelly has been reissued, but it has not changed with respect to the discussion on transformative uses.
Unfortunately, I do not have the skills to implement the following idea:
What if someone could take an MP3, parse the audio signal into a series of colors and/or symbols, and reproduce that music as a digital image. For example, maybe using this software would reproduce a Korn song or a New Found Glory song into a landscape, artscape, or colorscape. This would probably constitute a transformative use because the music has been converted into a digital image. The next step would be for someone to write software that would take these digital images and re-interpreting them as music. However, the decoding process should work with any images, less a court find that the decoding software is contributing to copyright infringement. I think one tenant of copyright law is that so long as there are legal, noninfringing uses of the device, then the device is generally legal (e.g., a VCR).
Anyone given any thought to making transformative uses of MP3s? This way, one could distribute an "image" of New Found Glory's "Better Off Dead" without technically committing copyright infringement.
Love to hear your thoughts.
-BB