It is not just a search warrant. It is also a guilty plea. When a guilty plea is taken in federal court, the judge is required to determine that there is a factual basis for accepting the plea. The defendant is sworn in and takes the stand. The judge asks the defendant various questions to ensure that he has been competently represented by counsel, understands his rights, and understands the elements of the offense with which he has been charged.
Then, typically, the prosecutor summarizes the evidence that would be presented at trial. The judge then asks the defendant, who is still under oath, if the summary is accurate and if he committed the charged offense.
So, in this case, Sherman Austin swore, under oath, in a court of law, before a federal judge, that he not only told people how to make explosives, but that he did so either (a) intending that his "student(s)" use that information to commit one or more crimes of violence; or (b) knowing that his "student(s)" intended to commit one or more crimes of violence.
So, unless Austin lied, he basically tried to help someone commit a crime of violence with an explosive device.
Explain to me again why this should be protected behavior.
If these ISPs are really worried about the long-term effects of a rule requiring the presence of law enforcement officers to serve warrants, they shouldn't complain to the courts. They should complain to Congress . ..
18 U.S.C. Sec. 3105. - Persons authorized to serve search warrant
A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. (bold added)
The author of this piece neglects to mention how and why a section relating to fair use was added to the 1976 Act. Fair use was not created by Congress. It was created by federal judges as an equitable doctrine that "permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (some bracketing, internal quotation marks omitted)).
The Copyright of Act of 1976 was intended to preserve the judicially developed doctrine of fair use and "not to change, narrow, or enlarge it in any way." (4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, at 13-150 & n.7). Fair use is still very much a creature of the courts. Congress identified a list of four factors that the courts must consider, but there are no bright line rules.
The judicial origins of the doctrine lead one to ask the question, if there were no fair use doctrine, would the Constitution obligate courts to come up with one? There is a strong argument that fair use is mandated by the Constitution. It goes as follows:
U.S. CONST. art I, 8, cl. 8 reads: "The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thus, Congress's power in creating copyright is arguably limited to those actions that promote "the Progress of Science and useful Arts." Fair use doctrine prevents copyright law from serving as a bar to progress. Thus, if courts did not recognize a fair use defense, the Copyright Act, as applied in certain cases, would be unconstitutional because it would effectively prohibit activities which the Congress has no constitutional authority to prohibit.
I like this argument better than those that rely on the First Amendment, because it does not need to reconcile conflicts among different provisions, relying instead on the copyright clause itself.
The bill has an interesting wish list of requirements for the FCC to consider. Of note to open source fans is section 3(d)(2) requiring open source for any software portion of the new security system.
Section 3(e)(1) states that "the encoding rules shall take into account the limitations on the exclusive rights of copyright owners, including the fair use doctrine." I don't understand how a hardware/software combination can implement this requirement. The Supreme Court has stated that the fair use determination "is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." In order to make a fair use determination, a court must examine things like the nature of the work copied and effects of the copying on the market for the original work. So, if Congress is really serious about fair use, we need some sort of artificial intelligence fair use expert system that can perform a case-by-case analysis that challenges federal judges.
Section 3(a) identifies the FCC as the lead agency for making rules and other determinations in this area. Is this really the best choice? The agency may have experience regulating highly technical industries, but doesn't seem to me to have a level of expertise regarding copyright law. Perhaps this is why the bill mandates consultation with the Register of Copyrights. Can anyone think of another agency that might be better able to deal with these questions?
It's been done. And successfully. During the Chicago 7 trial, one of the defendants, Abbie Hoffman, appeared wearing a judge's robes. Add to that the fact that the judge in the case was also named Hoffman . . .
To get the full picture, check out these transcript excerpts. Some of them are absolutely hysterical.
The circus-like nature of the trial was probably part of the reason that the defendants were able to get reversals on appeal.
Some contracts must be evidenced by a signed writing to be enforceable. Although it varies from state to state, most states require writings for sales of land, contracts that cannot be performed within one year, sales of goods in excess of $500 and some other categories of contract.
The ruling in this case is not all that surprising. The email message qualifies as a writing. The typed name at the bottom qualifies as a signature because it is a symbol used to identify a person. Kind of like an 'X' for someone who cannot write his name or that weird symbol that The Artists Formally Known As Prince uses.
A harder case is when there is no typed name at the bottom of an email, but there is a from: header at the top that is automatically attached by the email software. Drawing on an analogy to an unsigned fax transmission that has a person's name in the station identifier, I would think that this does not qualify as a written contract.
Although I agree that in the past trust-busting has typically been initiated by a government agency (FTC, SEC, IRS), there is no reason that it will not spread to plain-vanilla civil suits. Furthermore, there is no reason that it requires the cooperation of the foreign country.
In FTC v. Affordable Media [179 F.3d 1228], the Andersons, a husband and wife, had a trust on the Cook Islands. An "event of duress" occurred, removing the Andersons as trustees and preventing the foreign trustee from moving the funds back to the US. The Andersons spent six months in jail for contempt. The US court did not rely on any cooperation from the foreign agent/country.
This was a case where the court's simply did not believe the Andersons when they said that there was no way for them to get at their millions of dollars they had sent overseas. The trust owner has the burden of proof in this case. The court left open the question of whether the trust owners could be held in contempt even if they established that they had no control.
So, companies are stuck between creating an ironclad agreement where they cede total control over their servers to a third party (and still risk contempt/default judgment sanctions) or a not-so-ironclad agreement where they maintain some control but the courts ignore the agreement. Neither seems all that appealing.
This is something I've never understood about the Havenco sales pitch. I realize you are the CFO, and not the general counsel, but are you really telling US companies that if they keep information off-shore, they are not required to turn over that information if it is subpoenaed?
So long as a company has either (a) assets in the US that can be seized and sold or (b) people in the US who can be locked up for contempt citations, it does not matter where the data is so long as the US company controls it.
If a grand jury or a party to a civil suit subpoenas a company's mail server's harddrive and the company is unable to get a judge to throw out the subpoena, saying that the hard drive is not in this country is not an excuse. The company must turn it over or risk sanctions including just being handed a loss in the lawsuit.
The offshore agent not releasing files without certification that the request is not due to legal duress is a nice move, but one that isn't 100$ effective. People who have tried to hide assets in off-shore trusts with similar provisions have found out the hard way that if the government is determined enough, it can make it worth your while to bring the assets back to this country.
Right. People who are trying to get something for nothing (music) will be so upset with a company that is trying to get something for nothing (software) that they will boycott it.
Actually, entrapment law varies with jurisdiction; different states and the federal system use different standards. If I remember correctly, the standard used in federal criminal prosecutions is that if a defendant "readily accepted" the law enforcement officer's suggestion/request, then there is no entrapment.
Given the dollar amount involved, I think you have a great chance of finding an attorney who will take your case.
Many states have consumer protection statutes that allow recovery of multiple damages and attorney's fees. Although this guy may not be a "business" for purposes of these statutes, the number of transactions involved makes for a decent argument that he is subject to consumer protection statutes.
Also, if what he did really constitutes fraud, he may have committed at least two predicate acts (wire fraud) for federal RICO purposes. Federal law provides for civil damages for RICO violations, along with treble damages and the all important "cost of the suit, including a reasonable attorney's fee." 18 U.S.C. 1964(c).
Find yourself a good commercial litigator and go to town on this guy.
Courts treat data gathered from computer systems like any other evidence. All federal courts and most state courts have a codified set of rules for admitting evidence. There have been published court decisions regarding the admissibility of computer based evidence since at least the 1970's.
In order for evidence to be admitted, you can't just have a lawyer bring it in and show it to the jury. It has to be authenticated. Typically, this is done by having a witness testify about the data. The witness will testify about things like how the data was gathered, the chain of custody over the data, etc. It is exactly the same process used to admit a piece of physical evidence like a knife used in a murder.
Thus, it is more the credibility of the witness providing identification and authentication of the data than the data themselves that really matters with regards to admissibility.
The best resources on the subject are published judicial opinions in which admissibility is challenged; they provide a roadmap for avoiding problems.
Actually, you are probably not under any obligation to sign the oath. Your former employer may own the rights to the invention/application, but you can refuse to sign the oath.
Your former company, because they have a proprietary interest in the invention, can then just file the application anyhow. They need to add some things to the application outlining why the inventor will not sign the oath. See MPEP 409.03(b), 409.03(d).
As another poster pointed out, not having the inventor on board makes it very difficult to assert a patent in litigation. When an inventor testifies for an accused infringer....watch out. There is a much higher chance that the accused infringer will be able to get the patent invalidated. However, if all your former company wants is a nice looking piece of paper to show investors, they should be happy to just name you as the inventor and go on with the application.
As a non-signing inventor, you have rights. See MPEP 409.03(i).
For those of you not familiar with patent prosecution, the "MPEP" is the Manual of Patent Examining Procedure, available online.
I am not familiar with the "new regulations" that open all patent applications 18 months after filing. My understanding, per 37 CFR 1.14, is that applications are generally preserved in confidence.
Slashdot Mirror
It is not just a search warrant. It is also a guilty plea. When a guilty plea is taken in federal court, the judge is required to determine that there is a factual basis for accepting the plea. The defendant is sworn in and takes the stand. The judge asks the defendant various questions to ensure that he has been competently represented by counsel, understands his rights, and understands the elements of the offense with which he has been charged.
Then, typically, the prosecutor summarizes the evidence that would be presented at trial. The judge then asks the defendant, who is still under oath, if the summary is accurate and if he committed the charged offense.
So, in this case, Sherman Austin swore, under oath, in a court of law, before a federal judge, that he not only told people how to make explosives, but that he did so either (a) intending that his "student(s)" use that information to commit one or more crimes of violence; or (b) knowing that his "student(s)" intended to commit one or more crimes of violence.
So, unless Austin lied, he basically tried to help someone commit a crime of violence with an explosive device.
Explain to me again why this should be protected behavior.
18 U.S.C. Sec. 3105. - Persons authorized to serve search warrant
A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. (bold added)
The Copyright of Act of 1976 was intended to preserve the judicially developed doctrine of fair use and "not to change, narrow, or enlarge it in any way." (4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, at 13-150 & n.7). Fair use is still very much a creature of the courts. Congress identified a list of four factors that the courts must consider, but there are no bright line rules.
The judicial origins of the doctrine lead one to ask the question, if there were no fair use doctrine, would the Constitution obligate courts to come up with one? There is a strong argument that fair use is mandated by the Constitution. It goes as follows:
U.S. CONST. art I, 8, cl. 8 reads: "The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thus, Congress's power in creating copyright is arguably limited to those actions that promote "the Progress of Science and useful Arts." Fair use doctrine prevents copyright law from serving as a bar to progress. Thus, if courts did not recognize a fair use defense, the Copyright Act, as applied in certain cases, would be unconstitutional because it would effectively prohibit activities which the Congress has no constitutional authority to prohibit.
I like this argument better than those that rely on the First Amendment, because it does not need to reconcile conflicts among different provisions, relying instead on the copyright clause itself.
The bill has an interesting wish list of requirements for the FCC to consider. Of note to open source fans is section 3(d)(2) requiring open source for any software portion of the new security system.
Section 3(e)(1) states that "the encoding rules shall take into account the limitations on the exclusive rights of copyright owners, including the fair use doctrine." I don't understand how a hardware/software combination can implement this requirement. The Supreme Court has stated that the fair use determination "is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." In order to make a fair use determination, a court must examine things like the nature of the work copied and effects of the copying on the market for the original work. So, if Congress is really serious about fair use, we need some sort of artificial intelligence fair use expert system that can perform a case-by-case analysis that challenges federal judges.
Section 3(a) identifies the FCC as the lead agency for making rules and other determinations in this area. Is this really the best choice? The agency may have experience regulating highly technical industries, but doesn't seem to me to have a level of expertise regarding copyright law. Perhaps this is why the bill mandates consultation with the Register of Copyrights. Can anyone think of another agency that might be better able to deal with these questions?
To get the full picture, check out these transcript excerpts. Some of them are absolutely hysterical. The circus-like nature of the trial was probably part of the reason that the defendants were able to get reversals on appeal.
Some contracts must be evidenced by a signed writing to be enforceable. Although it varies from state to state, most states require writings for sales of land, contracts that cannot be performed within one year, sales of goods in excess of $500 and some other categories of contract.
The ruling in this case is not all that surprising. The email message qualifies as a writing. The typed name at the bottom qualifies as a signature because it is a symbol used to identify a person. Kind of like an 'X' for someone who cannot write his name or that weird symbol that The Artists Formally Known As Prince uses.
A harder case is when there is no typed name at the bottom of an email, but there is a from: header at the top that is automatically attached by the email software. Drawing on an analogy to an unsigned fax transmission that has a person's name in the station identifier, I would think that this does not qualify as a written contract.
Although I agree that in the past trust-busting has typically been initiated by a government agency (FTC, SEC, IRS), there is no reason that it will not spread to plain-vanilla civil suits. Furthermore, there is no reason that it requires the cooperation of the foreign country.
In FTC v. Affordable Media [179 F.3d 1228], the Andersons, a husband and wife, had a trust on the Cook Islands. An "event of duress" occurred, removing the Andersons as trustees and preventing the foreign trustee from moving the funds back to the US. The Andersons spent six months in jail for contempt. The US court did not rely on any cooperation from the foreign agent/country.
This was a case where the court's simply did not believe the Andersons when they said that there was no way for them to get at their millions of dollars they had sent overseas. The trust owner has the burden of proof in this case. The court left open the question of whether the trust owners could be held in contempt even if they established that they had no control.
So, companies are stuck between creating an ironclad agreement where they cede total control over their servers to a third party (and still risk contempt/default judgment sanctions) or a not-so-ironclad agreement where they maintain some control but the courts ignore the agreement. Neither seems all that appealing.
This is something I've never understood about the Havenco sales pitch. I realize you are the CFO, and not the general counsel, but are you really telling US companies that if they keep information off-shore, they are not required to turn over that information if it is subpoenaed?
So long as a company has either (a) assets in the US that can be seized and sold or (b) people in the US who can be locked up for contempt citations, it does not matter where the data is so long as the US company controls it.
If a grand jury or a party to a civil suit subpoenas a company's mail server's harddrive and the company is unable to get a judge to throw out the subpoena, saying that the hard drive is not in this country is not an excuse. The company must turn it over or risk sanctions including just being handed a loss in the lawsuit.
The offshore agent not releasing files without certification that the request is not due to legal duress is a nice move, but one that isn't 100$ effective. People who have tried to hide assets in off-shore trusts with similar provisions have found out the hard way that if the government is determined enough, it can make it worth your while to bring the assets back to this country.
Right. People who are trying to get something for nothing (music) will be so upset with a company that is trying to get something for nothing (software) that they will boycott it.
Actually, entrapment law varies with jurisdiction; different states and the federal system use different standards. If I remember correctly, the standard used in federal criminal prosecutions is that if a defendant "readily accepted" the law enforcement officer's suggestion/request, then there is no entrapment.
Given the dollar amount involved, I think you have a great chance of finding an attorney who will take your case.
Many states have consumer protection statutes that allow recovery of multiple damages and attorney's fees. Although this guy may not be a "business" for purposes of these statutes, the number of transactions involved makes for a decent argument that he is subject to consumer protection statutes.
Also, if what he did really constitutes fraud, he may have committed at least two predicate acts (wire fraud) for federal RICO purposes. Federal law provides for civil damages for RICO violations, along with treble damages and the all important "cost of the suit, including a reasonable attorney's fee." 18 U.S.C. 1964(c).
Find yourself a good commercial litigator and go to town on this guy.
Courts treat data gathered from computer systems like any other evidence. All federal courts and most state courts have a codified set of rules for admitting evidence. There have been published court decisions regarding the admissibility of computer based evidence since at least the 1970's.
In order for evidence to be admitted, you can't just have a lawyer bring it in and show it to the jury. It has to be authenticated. Typically, this is done by having a witness testify about the data. The witness will testify about things like how the data was gathered, the chain of custody over the data, etc. It is exactly the same process used to admit a piece of physical evidence like a knife used in a murder.
Thus, it is more the credibility of the witness providing identification and authentication of the data than the data themselves that really matters with regards to admissibility.
The best resources on the subject are published judicial opinions in which admissibility is challenged; they provide a roadmap for avoiding problems.
Your former company, because they have a proprietary interest in the invention, can then just file the application anyhow. They need to add some things to the application outlining why the inventor will not sign the oath. See MPEP 409.03(b), 409.03(d).
As another poster pointed out, not having the inventor on board makes it very difficult to assert a patent in litigation. When an inventor testifies for an accused infringer....watch out. There is a much higher chance that the accused infringer will be able to get the patent invalidated. However, if all your former company wants is a nice looking piece of paper to show investors, they should be happy to just name you as the inventor and go on with the application.
As a non-signing inventor, you have rights. See MPEP 409.03(i).
For those of you not familiar with patent prosecution, the "MPEP" is the Manual of Patent Examining Procedure, available online.
I am not familiar with the "new regulations" that open all patent applications 18 months after filing. My understanding, per 37 CFR 1.14, is that applications are generally preserved in confidence.