That is more or less what the FCC is going to do. Correct the linguistic sleight of hand that let them get away with considering Internet access as an "information service" instead a common carrier "telecommunications service" in the first place.
Internet access is _not_ an information service. It is a communications service that allows customers to connect to or provide information services. The good news is that the FCC is planning a lightweight approach to Title II (common carrier) style Internet access service regulation, that uses "forebearance" to only regulate the important things. A heavyweight approach could have all the disadvantages of the government approach to the telephone network. Like a dozen fees tacked onto every bill, for example.
Oracle should not be using DNS for local connections.
But if you give it a DNS name to connect to, how is it supposed to know that an always local connection is really what you want? I always give it a static/etc/hosts name, because I don't like to see a local machine or cluster fall over when there is a DNS problem.
It makes a difference when people systematically make corrections in the same direction without documentation (and then throw away the original data), delete rural stations, fail to account for urban heat islands, use defective sensor sites, use an abnormally small number of stations to estimate the temperature for vast areas, etc.
And of course devise statistical techniques that (intentionally or otherwise) systematically misrepresent the data. Or worse cherry pick data that matches one's preferred conclusions. Those other trees, they can't be right, etc.
There is abundant evidence from satellite data that the surface measurement estimation methodology is horribly out of sync with reality.
Some station data held by the CRU was not made available publicly because it is the intellectual property of some national meteorological services around the world and subject to non disclosure agreements
Such data should legitimately be considered not to exist.
Essentially should a researcher be allowed to be bogged down with FOI requests?
If the data is available for public download, how hard can it be to comply with Freedom of Information requests? If the data isn't available, a more reasonable conclusion is that the original research was probably done wrong and is riddled with all sorts of subtle errors and mistakes. Who could possibly tell otherwise?
asking for the same data they had already told they couldn't provide because they weren't the rightful owners
Science based on proprietary data shouldn't be publishable because it isn't verifiable. Data that cannot be downloaded from a public Internet site should be considered as if it did not exist, so far as science is concerned. CRU could have an largely imaginary database, and no one would be able to tell otherwise.
I have not encountered a scientist that publishes "all of their data", there is just way too much of it.
This is why they invented the Internet. FTP anyone? Of course "all of their data" doesn't need to be published, just all of the data pertaining to a published article: methods, sources, provenance, metadata, procedures, algorithms, source code, and so on.
The closest Sun equivalent would be Solaris, but they went another direction... they opened that.. (OpenSolaris)
That sound you hear is a door closing. OpenSolaris != Solaris, and now that Oracle is in charge that is likely to become more true every passing day. I don't think Oracle has any interest in becoming the next RedHat. Rather they dearly want to become the next IBM.
DNS? Reliable? You have got to be kidding. A better answer is never take your DNS servers down. And if that is a problem, migrate the IP address to another server that is actually up.
I can't imagine how many trillions of dollars GM has had in subsidies through the construction of the interstate highway system, etc.
The Interstate highway system was constructed with overwhelming public support, with full knowledge of the costs involved. So it can't really be considered a subsidy to GM, let alone a multi-trillion dollar subsidy.
It can't even really be considered a subsidy to automobile drivers. The reason is that the federal gasoline tax only impinges on the taxed activity, and rather proportionally at that. It is about the fairest tax ever devised, and is more than adequate to finance the federal government's road construction and maintenance activities.
The local telephone company is different, primarily because it has historically had a government protected monopoly. That (natural) monopoly power is why it is subject to unusual levels of government regulation at both local and federal levels.
Sorry No. If you are intelligent enough to determine (for example) whether BTRFS might infringe on a ZFS patent without reference to the BTRFS source code, the source code of any BTRFS utilities, BTRFS file system format documentation, or other published information, more power to you. We are a long ways from the cotton gin.
Black box analysis won't even come close to determining if any internal methods are infringing. NetApp sued Sun over ZFS a few years back, and they wouldn't have had a clue what was really going on inside of ZFS if there wasn't anything published about it. Determining how ZFS really worked inside without reference to documentation, source code, or other published information could take a skilled engineer several weeks just to get started.
How would you determine, short of reverse engineering, that ZFS was a copy on write, "phase tree" type filesystem, for example? And that just scratches the surface.
It seems to me that a more relevant case would be one referenced in that same article: General Talking Pictures Corp vs Western Electric. In that case, the Supreme Court found that a patent holder could distinguish between home and commercial use, and license manufacturers accordingly
There is a big difference between this situation and General Talking Pictures. Namely, the latter was a manufacturer. In this case, we are talking about conditional patent licenses for end users, and retail end users at that. The whole reason why there is a patent exhaustion doctrine in the first place is so that once a device enters the open market, end users (first hand, second hand) do not have to worry about having patent licenses for every thing they own.
The patent exhaustion doctrine applies whenever the patent restrictions are not made clear to the buyer. If I buy a camcorder at a local store, those restrictions are not clearly indicated. They are not on the box, there is no contract, the only place they might be is in fine print that I might read months to years later, and which may or may not be binding in any case. And supposing I then sell the camcorder second hand, it is much less likely that the buyer will have any knowledge of the putative patent restrictions.
I didn't say you needed to reverse engineer anything. I said it was easier to identify a patent violation if you have access to the source code. All the more so if the dispute is particularly subtle.
The only real impact is that the FCC will start using Title II instead of Title I.
As they should have if they weren't engaged in politically opportunistic word mangling in the first place. The Supreme Court occasionally allows the FCC an unusual amount of latitude in that sort of thing (which was probably a mistake). If the FCC was doing its job, it would have classified Internet access providers as common carriers under Title II, for exactly the same reasons telephone network providers are considered common carriers.
Instead they essentially (temporarily) abdicated virtually all of their authority to regulate the Internet by classifying the whole thing as one big "information service". Youtube is an information service. Wikipedia is an information service. Internet access service, in the terms contemplated by the Communications Act of 1934, is not.
An "information service" is "offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" (47 USC 153). Anyone think that sounds like what an Internet access provider does?
An "information service...does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." (ibid) Internet access is the latter. The opposite conclusion is specious in the extreme.
By the way, the Supreme Court made a closely related decision in Quanta Computer v. LG Electronics (2008), but unfortunately did not address the specific issue here, namely the effect of the patent exhaustion doctrine on conditional patent licenses to manufacturers.
It would be better of course if Congress would legislate in this area, rather than rely on the courts to nibble out precedents one case at a time.
Surely that is only true if the seller has the right to sell the thing in the first place.
The whole point of the exhaustion doctrine is that end users do not need patent licenses unless the circumstances explicitly indicate otherwise. If the MPEG-LA people want to make the circumstances explicit, they can do one of two things: (1) they can require that all such cameras be leased rather than sold, or (2) they can enlist retailers as their agents to engage each purchaser in a binding contract to the effect that they only have a license for non-commercial use under certain time limited terms and conditions.
Otherwise it is highly likely that the exhaustion doctrine means that any owner of a finished item has an implied license to use the device in any way they see fit, if the manufacturer had any sort of patent license at all. A court could rule otherwise (hence the request for a citation), but as with shrinkwrap licenses in general the this appears to be an unsettled area of law. Wishful thinking by a bunch of intellectual property attorneys doesn't change that fact.
Citation please. The Supreme Court has held that "incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold" (United States V. Univis Lens Co., 1942). This is known as the "exhaustion doctrine".
There is an exception to the implied license granted by the exhaustion doctrine if the circumstances of sale indicate that a grant of license should not be inferred. So the question here is whether the quasi-shrink wrap license here overrides the implied patent license for an end user to use the device however he sees fit.
Based on the dubious legal standing of retail end user license agreements (accepting them is not a condition of purchase) it is entirely plausible that MPEG-LA's attempt to restrict the scope of the implied patent license granted to a camcorder buyer is entirely invalid.
On the other hand, what do they have to gain by supporting ogg?
What they have to gain is the benefit of having an interoperable HTML 5 video tag. If the developers of Firefox (a browser with 25% of the market) won't / can't adopt H.264 because it was designed to be as patent encumbered as possible, and Apple / Microsoft won't support a standard that Firefox can use, then the HTML 5 video tag is nearly a dead letter, dragging down the use of Internet video as a whole, with subsequent implications for the size of the entire Internet video market, and the persistence of existing proprietary plugins like Flash.
And in particular, since Apple does not want to support Flash for various reasons, declining to support Theora etc. means the number of websites that are unusable on Apple mobile devices will likely be substantially increased above what they would be otherwise for an indefinite period. That will affect the marketability of those devices, and ultimately Apple's bottom line.
First, they're restricted under the Patent Cooperation Treaty and TRIPS
Any country can withdraw from a treaty at will. Not very likely in this case, but possible if the issue was deemed to be important enough.
35 USC 102 says a person is "entitled" to a patent.
35 USC 102 is a section titled "Conditions for patentability; novelty and loss of right to patent". It describes when a patentee is entitled to be granted a patent, and under what terms and conditions, included those by which the patent may be determined to be invalid. In any case, subject to the restriction on ex post facto laws, the law can be changed.
In what way are they vague?
They are vague to the degree that major issues of how to interpret certain provisions of patent law are constantly before the courts, for example how to interpret the following:
"A patent may not be obtained...if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art" (35 USC 103 (a))
Exactly what is "obvious", and what is "ordinary skill in the art" are questions that could use substantial legislative elaboration. What about this provison:
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (35 USC 101)
There is a major legal dispute over whether this covers software and business method patents. Congress should clarify the law outright, rather then letting the issue drift back and forth in the courts for decades. Major issues of public policy should be decided by the people's elected representatives.
I think the vast majority of people realized how corrupt the Supreme Court was after the 2000 Bush vs. Gore decision that essentially gave the presidential election to Bush
If they had decided the other way, wouldn't many people have a legal argument in favor of the proposition that they essentially gave the presidential election to Gore? There were lawyers on both sides of the controversy. If it was an open and shut case, it would never have gone to trial in the first place.
None of that applies to legislative restrictions on patents that will be granted in the future. Patents are a form of artificial property created by the government, and the government can establish what shape, form, limitations etc apply to them, including refusing to grant any patents at all, making them all expire in six months, requiring mandatory licensing, setting auto-invalidation provisions, or practically anything else the legislative branch thinks is socially beneficial.
Not only that, the current laws regarding obviousness and prior art are so vague that Congress could do an enormous amount of legislating without legally depriving current patent holders of their property at all, because patents are only valid within the context of the statutory law under which they were granted. That is why they can be invalidated and overturned if a legal determination is made that law was not properly followed.
In most common law countries, you can lose your title to real property too, if a proper title search was not performed. i.e. such titles were never valid in the first place. Unlike condemnation proceedings, the government does not compensate you if you don't do the necessary work to gain clear title. Likewise for patents that turn out to have prior art, etc.
They work great; but MPEG-4 and H.264 are ubiquitous, well documented, etc. There are advantages to limiting the number of supported codecs.
Other than the problem that no open source software products can legally include them, that is. All else being equal, that is a slam dunk for any viable alternative.
Slashdot Mirror
That is more or less what the FCC is going to do. Correct the linguistic sleight of hand that let them get away with considering Internet access as an "information service" instead a common carrier "telecommunications service" in the first place.
Internet access is _not_ an information service. It is a communications service that allows customers to connect to or provide information services. The good news is that the FCC is planning a lightweight approach to Title II (common carrier) style Internet access service regulation, that uses "forebearance" to only regulate the important things. A heavyweight approach could have all the disadvantages of the government approach to the telephone network. Like a dozen fees tacked onto every bill, for example.
Oracle should not be using DNS for local connections.
But if you give it a DNS name to connect to, how is it supposed to know that an always local connection is really what you want? I always give it a static /etc/hosts name, because I don't like to see a local machine or cluster fall over when there is a DNS problem.
It makes a difference when people systematically make corrections in the same direction without documentation (and then throw away the original data), delete rural stations, fail to account for urban heat islands, use defective sensor sites, use an abnormally small number of stations to estimate the temperature for vast areas, etc.
And of course devise statistical techniques that (intentionally or otherwise) systematically misrepresent the data. Or worse cherry pick data that matches one's preferred conclusions. Those other trees, they can't be right, etc.
There is abundant evidence from satellite data that the surface measurement estimation methodology is horribly out of sync with reality.
You're fully within your rights to ask the original rights owners for the data
And the original owners are fully within their rights to refuse to give it to you. Hence unverifiable, hence not science.
In other words, there was no good science before the 1970s
Sure there was, the problem is that in many cases it is impossible to know whether it was good. More like suggestions for further inquiry.
Some station data held by the CRU was not made available publicly because it is the intellectual property of some national meteorological services around the world and subject to non disclosure agreements
Such data should legitimately be considered not to exist.
Essentially should a researcher be allowed to be bogged down with FOI requests?
If the data is available for public download, how hard can it be to comply with Freedom of Information requests? If the data isn't available, a more reasonable conclusion is that the original research was probably done wrong and is riddled with all sorts of subtle errors and mistakes. Who could possibly tell otherwise?
asking for the same data they had already told they couldn't provide because they weren't the rightful owners
Science based on proprietary data shouldn't be publishable because it isn't verifiable. Data that cannot be downloaded from a public Internet site should be considered as if it did not exist, so far as science is concerned. CRU could have an largely imaginary database, and no one would be able to tell otherwise.
I have not encountered a scientist that publishes "all of their data", there is just way too much of it.
This is why they invented the Internet. FTP anyone? Of course "all of their data" doesn't need to be published, just all of the data pertaining to a published article: methods, sources, provenance, metadata, procedures, algorithms, source code, and so on.
The closest Sun equivalent would be Solaris, but they went another direction... they opened that.. (OpenSolaris)
That sound you hear is a door closing. OpenSolaris != Solaris, and now that Oracle is in charge that is likely to become more true every passing day. I don't think Oracle has any interest in becoming the next RedHat. Rather they dearly want to become the next IBM.
DNS? Reliable? You have got to be kidding. A better answer is never take your DNS servers down. And if that is a problem, migrate the IP address to another server that is actually up.
I can't imagine how many trillions of dollars GM has had in subsidies through the construction of the interstate highway system, etc.
The Interstate highway system was constructed with overwhelming public support, with full knowledge of the costs involved. So it can't really be considered a subsidy to GM, let alone a multi-trillion dollar subsidy.
It can't even really be considered a subsidy to automobile drivers. The reason is that the federal gasoline tax only impinges on the taxed activity, and rather proportionally at that. It is about the fairest tax ever devised, and is more than adequate to finance the federal government's road construction and maintenance activities.
The local telephone company is different, primarily because it has historically had a government protected monopoly. That (natural) monopoly power is why it is subject to unusual levels of government regulation at both local and federal levels.
Sorry No. If you are intelligent enough to determine (for example) whether BTRFS might infringe on a ZFS patent without reference to the BTRFS source code, the source code of any BTRFS utilities, BTRFS file system format documentation, or other published information, more power to you. We are a long ways from the cotton gin.
Black box analysis won't even come close to determining if any internal methods are infringing. NetApp sued Sun over ZFS a few years back, and they wouldn't have had a clue what was really going on inside of ZFS if there wasn't anything published about it. Determining how ZFS really worked inside without reference to documentation, source code, or other published information could take a skilled engineer several weeks just to get started.
How would you determine, short of reverse engineering, that ZFS was a copy on write, "phase tree" type filesystem, for example? And that just scratches the surface.
It seems to me that a more relevant case would be one referenced in that same article: General Talking Pictures Corp vs Western Electric. In that case, the Supreme Court found that a patent holder could distinguish between home and commercial use, and license manufacturers accordingly
There is a big difference between this situation and General Talking Pictures. Namely, the latter was a manufacturer. In this case, we are talking about conditional patent licenses for end users, and retail end users at that. The whole reason why there is a patent exhaustion doctrine in the first place is so that once a device enters the open market, end users (first hand, second hand) do not have to worry about having patent licenses for every thing they own.
The patent exhaustion doctrine applies whenever the patent restrictions are not made clear to the buyer. If I buy a camcorder at a local store, those restrictions are not clearly indicated. They are not on the box, there is no contract, the only place they might be is in fine print that I might read months to years later, and which may or may not be binding in any case. And supposing I then sell the camcorder second hand, it is much less likely that the buyer will have any knowledge of the putative patent restrictions.
You don't need to reverse engineer anything
I didn't say you needed to reverse engineer anything. I said it was easier to identify a patent violation if you have access to the source code. All the more so if the dispute is particularly subtle.
The only real impact is that the FCC will start using Title II instead of Title I.
As they should have if they weren't engaged in politically opportunistic word mangling in the first place. The Supreme Court occasionally allows the FCC an unusual amount of latitude in that sort of thing (which was probably a mistake). If the FCC was doing its job, it would have classified Internet access providers as common carriers under Title II, for exactly the same reasons telephone network providers are considered common carriers.
Instead they essentially (temporarily) abdicated virtually all of their authority to regulate the Internet by classifying the whole thing as one big "information service". Youtube is an information service. Wikipedia is an information service. Internet access service, in the terms contemplated by the Communications Act of 1934, is not.
An "information service" is "offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" (47 USC 153). Anyone think that sounds like what an Internet access provider does?
An "information service...does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." (ibid) Internet access is the latter. The opposite conclusion is specious in the extreme.
By the way, the Supreme Court made a closely related decision in Quanta Computer v. LG Electronics (2008), but unfortunately did not address the specific issue here, namely the effect of the patent exhaustion doctrine on conditional patent licenses to manufacturers.
It would be better of course if Congress would legislate in this area, rather than rely on the courts to nibble out precedents one case at a time.
Surely that is only true if the seller has the right to sell the thing in the first place.
The whole point of the exhaustion doctrine is that end users do not need patent licenses unless the circumstances explicitly indicate otherwise. If the MPEG-LA people want to make the circumstances explicit, they can do one of two things: (1) they can require that all such cameras be leased rather than sold, or (2) they can enlist retailers as their agents to engage each purchaser in a binding contract to the effect that they only have a license for non-commercial use under certain time limited terms and conditions.
Otherwise it is highly likely that the exhaustion doctrine means that any owner of a finished item has an implied license to use the device in any way they see fit, if the manufacturer had any sort of patent license at all. A court could rule otherwise (hence the request for a citation), but as with shrinkwrap licenses in general the this appears to be an unsettled area of law. Wishful thinking by a bunch of intellectual property attorneys doesn't change that fact.
This does hold up in court
Citation please. The Supreme Court has held that "incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold" (United States V. Univis Lens Co., 1942). This is known as the "exhaustion doctrine".
There is an exception to the implied license granted by the exhaustion doctrine if the circumstances of sale indicate that a grant of license should not be inferred. So the question here is whether the quasi-shrink wrap license here overrides the implied patent license for an end user to use the device however he sees fit.
Based on the dubious legal standing of retail end user license agreements (accepting them is not a condition of purchase) it is entirely plausible that MPEG-LA's attempt to restrict the scope of the implied patent license granted to a camcorder buyer is entirely invalid.
On the other hand, what do they have to gain by supporting ogg?
What they have to gain is the benefit of having an interoperable HTML 5 video tag. If the developers of Firefox (a browser with 25% of the market) won't / can't adopt H.264 because it was designed to be as patent encumbered as possible, and Apple / Microsoft won't support a standard that Firefox can use, then the HTML 5 video tag is nearly a dead letter, dragging down the use of Internet video as a whole, with subsequent implications for the size of the entire Internet video market, and the persistence of existing proprietary plugins like Flash.
And in particular, since Apple does not want to support Flash for various reasons, declining to support Theora etc. means the number of websites that are unusable on Apple mobile devices will likely be substantially increased above what they would be otherwise for an indefinite period. That will affect the marketability of those devices, and ultimately Apple's bottom line.
First, they're restricted under the Patent Cooperation Treaty and TRIPS
Any country can withdraw from a treaty at will. Not very likely in this case, but possible if the issue was deemed to be important enough.
35 USC 102 says a person is "entitled" to a patent.
35 USC 102 is a section titled "Conditions for patentability; novelty and loss of right to patent". It describes when a patentee is entitled to be granted a patent, and under what terms and conditions, included those by which the patent may be determined to be invalid. In any case, subject to the restriction on ex post facto laws, the law can be changed.
In what way are they vague?
They are vague to the degree that major issues of how to interpret certain provisions of patent law are constantly before the courts, for example how to interpret the following:
"A patent may not be obtained...if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art" (35 USC 103 (a))
Exactly what is "obvious", and what is "ordinary skill in the art" are questions that could use substantial legislative elaboration. What about this provison:
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (35 USC 101)
There is a major legal dispute over whether this covers software and business method patents. Congress should clarify the law outright, rather then letting the issue drift back and forth in the courts for decades. Major issues of public policy should be decided by the people's elected representatives.
I think the vast majority of people realized how corrupt the Supreme Court was after the 2000 Bush vs. Gore decision that essentially gave the presidential election to Bush
If they had decided the other way, wouldn't many people have a legal argument in favor of the proposition that they essentially gave the presidential election to Gore? There were lawyers on both sides of the controversy. If it was an open and shut case, it would never have gone to trial in the first place.
None of that applies to legislative restrictions on patents that will be granted in the future. Patents are a form of artificial property created by the government, and the government can establish what shape, form, limitations etc apply to them, including refusing to grant any patents at all, making them all expire in six months, requiring mandatory licensing, setting auto-invalidation provisions, or practically anything else the legislative branch thinks is socially beneficial.
Not only that, the current laws regarding obviousness and prior art are so vague that Congress could do an enormous amount of legislating without legally depriving current patent holders of their property at all, because patents are only valid within the context of the statutory law under which they were granted. That is why they can be invalidated and overturned if a legal determination is made that law was not properly followed.
In most common law countries, you can lose your title to real property too, if a proper title search was not performed. i.e. such titles were never valid in the first place. Unlike condemnation proceedings, the government does not compensate you if you don't do the necessary work to gain clear title. Likewise for patents that turn out to have prior art, etc.
They work great; but MPEG-4 and H.264 are ubiquitous, well documented, etc. There are advantages to limiting the number of supported codecs.
Other than the problem that no open source software products can legally include them, that is. All else being equal, that is a slam dunk for any viable alternative.
Examining the source code for patent violations is a lot easier than reverse engineering a binary, unfortunately.