I just read claim 1 in this patent (traditionally, claim 1 is the broadest claim in the patent) and my first thought was that this patent has to have a heck of a prosecution history with a lot of comments that will narrow the interpretation of this claim in order for this to have been allowed. Then again, the filing date is 1999 and I don't know how much caching was being done then.
Bottom line: SOMEONE had to invent caching. It very well could have been these guys. But if they approached one of my clients with an offer to license this thing, I would want to do a LOT of investigation before advising one way or the other.
Thankfully, I don't live in Australia. Just as thankfully, I am a lawyer so if I absolutely HAD to, I could defend myself in court and put up one heck of a fight. But to think of a life without iTunes?
<shudder> Perish the thought! </shudder>
I use a PowerBook at work for everything and iTunes is on CONSTANTLY. I don't think I could practice law without it.
If you have citations for cases that held it was not a fair use to get the same content in a different format than the one you already paid for, I'd appreciate it if you post those cites here or in my journal. I haven't seen any reported cases on that point.
That is why I said that I don't use file sharing software and that consequently there is almost no chance of the RIAA actually suing me. But electronic records can be changed, DHCP complicates addressing and mistakes get made, so I can't say there is absolutely no chance. But if I do get sued, I know the suit will be frivolous.
I have to confess that I have not used file trading software because of my occupation, so there is realistically no way the RIAA will ever sue me. However, I have a substantial number of MP3 files on my hard drive that I dutifully ripped from every CD or other source I own.
I would love to have someone accuse me illegally possessing those MP3s. I would produce the original CD from which I ripped the track, show that I OWN that source, assert my fair use rights, and promptly counterclaim for substantial damages of my own. Think about this: If I have paid for the content, and can legally rip an MP3 from whatever source for my own use, why can't I get a copy of an MP3 version of content I already paid for from another source? That sounds like a FAIR use of the content to me. In fact, I think that prohibiting such conversions to force consumers to repurchase the same content in a new format is an UNFAIR and deceptive business practice. In court, suing individual file traders has the potential to quickly become a bottomless pit of evdentiary and other legal issues for each file alleged to have been illegally downloaded.
Somehow I knew who the inventor was on these patents before I even looked -- Jerome Lemelson. Lemelson is infamous in the patent world as the "king of the submarine patent." Back when Lemelson was active, he would file applications and delay prosecution until he had defendants to sue. He would then prosecute the patent and sue when it issued. Because patent applications are held confidential while pending, others using the technology claimed in Lemelson's patents would have no idea that the patents existed until issuance, thus the submarine analogy.
These actions are almost universally seen by practitioners as abuses of the patent system, NOT as appropriate uses. Thankfully, in most instances current PTO procedure prevents these abuses. However, this type of prosecution tactic, even though it resulted in a patent issuing, still may not ultimately be successful because of a doctrine called "prosecution laches."
Generally, the doctrine of laches applies to protect a defendant when a plaintiff has sat on its rights for too long. The doctrine of prosecution history laches, very simply put, states that a patentee who has delayed prosection for too long may not enforce its patent once it issues. I am not saying that this is the case here; that is for a court to decide. But I do feel the need to note that this doctrine was recently "revived" by courts after a long period during which the doctrine was never even discussed, much less applied.
You may wonder who the patent holder was in the case that recently "revived" the doctrine of prosecution history laches. His name, I believe, is Jerome Lemelson.
Assuming everything you said is true (and I personally don't accept it but...), don't you think that it is about time that sorry state of affairs changed?
Would the world be better off or not if it was illegal to overpromote the functionality or features of software?"
Let's see.... do we make people give truthful and accurate information about their businesses and products (when they choose to say something) or do we let people say anything they feel like saying?
When I was in law school, I learned a name for the act described as:
Knowingly stating false information; or recklessly stating information with disregard for its truth or falsity; or omitting information with the intent to create a false impression;
With the intent that another rely upon your statements;
Where the other party actually relies upon your statements; and
Damages result.
It was called FRAUD. Then again, maybe law school somehow affected my sense of how the software industry is supposed to work. You decide.
None taken. You should be skeptical. Let me just say that I went to a Top 20 law school, graduated at the top of my class, am admitted to practice in 3 jurisdictions (including the USPTO), and practice IP law in one of the largest (and the best) law firm in the world. Trust me or not, it remains my legal opinion that the GPL is valid and enforceable.
Any license is just a contract. There are literally millions of contracts that are fully performed and never litigated every day. You don't need a court opinion on any of those contracts to trust they are enforceable. You just trust that the terms are within the bounds of the law. I am of the opinion that the GPL's terms are within the bounds of the law as well.
Then it is usually so innovative that it is creating a brand new market or it is invalid over the prior art. You are allowed to have claims as broad as you want, as long as none of the claims describes something that is in the prior art. Not only are you allowed, it is your right under the Patent Act (35 U.S.C. section 101 et seq.)
Uh, YES. See section 3 of the GPL. IF you take a GPLed program and modify that program and distribute that modified program, the GPL requires you to make the source code for the modifications available under the GPL. You said you didn't think such a license was possible and I gave an example of one that does such a thing.
The original poster said: Some software is licensed to customers, some is run internally in a service model...
Licensing and running internally in a service model BOTH count as "distribution" under the GPL. It is very easy to create and enforce such licenses -- all you have to do it write the terms in the license and sue if you don't get the modified source from the licensee. If you don't like the GPL example, look at any one of the hundreds/thousands (if you can get your hands on a non-confidential copy) of licenses / agreements where independent contractors get access to source code to make modifications to programs provided they make the modified source code available. I believe the general term is a "code maintenance agreement."
Simply said, the difference is market power. A patent doesn't confer any ability to market something and shut others out of the market. The right to exclude is to exclude others from making, using, or selling only what is claimed in your patent. If the claims don't cover the product a competitor wants to sell, the patentee can't stop the competitor from entering the market. A monopolist can. It may be true in certain instances that there are no close substitutes for a patented product, but competitors can still make some noninfringing substitute and enter the market if they want. Monopoly power confers the ability to foreclose all competition in the marketplace.
Of course such a license can be created. It is called the GPL. See sections 2 and 3 available here. Enforcement is easy - bring a copyright infringement action. Identification of infringers is harder, but not impossible.
Read the license of the code you are modifying. Simply put, the modifications may not "belong" to your company. If the company accepted source code to modify and that source's availability was conditioned on the publication of modifications, then there is an obligation imposed by the license to release the modifications.
Call this a self-serving statement by one of those fscking IP lawyers, but your company should consult with a lawyer who knows software licensing, knows source code issues, and can advise your company properly.
Property and Rights are NOT different !
on
Steal This Idea
·
· Score: 2, Interesting
My apologies to another poster, but... Property and rights are the exact SAME things. Traditionally there were tangible objects and there was property. In the olden days, the only "real" property was an estate in land -- thus, "real estate." Personal property (the vast bulk of what today is considered property - anything other than real estate) by and large did not exist.
A tangible object only becomes property when rights attach to that object. The core property right is the right to exclude others from using the subject property. To use another real estate example, think of the law of trespass. Trespass laws prevent others from using real estate.
Take this now to the next level - intellectual property. Because IP is based on an intangible ("an idea" as the author of this book has called it), the property is defined by the bounds of the rights in the intangible. The right to exclude is inextricably bound with the intangible and becomes part of the definition of the right. Therefore, the right is coextensive with the property because it IS the property.
To go back to the real estate example, the right to exclude is coextensive with the physical boundary of the land in question. That is why estates in land and the land itself are two very different things. The land itself is nothing. The estate in the land (that is, the rights attached to the parcel) is the property.
Most people (even most lawyers) never make this distinction when it comes to patents. You will sometimes hear talk about the "patent monopoly," but this term has been rejected by the Court of Appeals for the Federal Circuit (the federal appeals court with exclusive jurisdiction over patent cases in the United States). The Court has made clear that patents define the metes and bounds of a piece of property and do not grant monopolies. There are sound reasons for this distinction that I hope you will forgive me for not discussing here. it is enough for this post that the distinction exists.
And it is too bad too - this would have been just the last thing I needed to make my TiBook 100% M$-free. Unfortunately, I need IE for some features on my employer's website. I would have forgone those features if it was that easy to crash IE on OS X.
So lets all calm down and remember that music is complex and expensive to record at a professional level.
Calm down? I didn't realize I was ranting and raving. I answered a specific question - why production savings aren't passed along to the consumer. The theory holds true whether you are talking about lower software costs, a decrease in the price of blank CDs, or lowering the price of the gasoline used to fuel the delivery trucks bringing the CDs to the stores. If customers are paying a set price for your product, there is little incentive to pass along savings rather than pocket the increased profit (unless, as another poster pointed out, a lower price point will result a sales volume increase that more than offsets the increased profit from retaining the increased margin). This is just Business 101 (or Econ 101 - take your pick).
That's easy. There are 2 ways to increase profits -- raise prices of lower costs (ok 3 - you can do both). Any of the three ways results in a higher profit margin (== price - cost). To pass along savings means to lower your margin or keep it steady. Increased margins == increased profits.
but they seem to limit themselves to 1D barcodes. What about 2D codes like PDF417? 2D codes would seem to open up countless more possibilities for artistic use....
And Now For Something Completely Different: The definitive book on barcoding is "The Bar Code Book" by Roger C. Palmer (4th ed., (c) 2001 Helmers Publ., Inc., ISBN 0-911261-13-3). How do I know so much about barcodes? Trust me - you don't want to know.
That is the complete OPPOSITE of what I am saying. If someone steals your car THEY should be punished as the law requires. If the car manufacturer makes defective brakes that won't stop the car and you are injured as a result, the MANUFACTURER is liable for your injuries.
Basic principles of negligence apply here. Negligence results from the following:
The existence of a duty;
The breach of that duty;
Proximate Causation (the breach of duty was both the factual and legal cause of injury); and
Damage (injury).
When determining whether a duty has been breached, you look at the standard of care that applies in that situation and see whether the actions taken meet (at a minimum) that standard. All I am saying is if a software manufacturer fails to meet the minimum standards of care in designing and/or manufacturing its product, it should suffer the same consequences as any other company that designs and manufactures products.
No one realistically expects software manufacturers to forsee every possible flaw in their software. The law does not expect as much either. However, there are quite a few flaws that reasonably CAN be forseen. It is those flaws that must be prevented.
The law also does not penalize honest mistakes or accidents. There must be fault involved. That is why negligence requires the breach of a duty by not taking the minimum steps required to prevent the harm. Look at the Ford Pinto -- Ford chose not to incur a miniscule charge (I think it was about US $1/vehicle) to correct a flaw that allowed gasoline tanks to explode. If a software company does not follow good design practices to write minimally acceptable code, it should be liable just as Ford was.
By the way, you may ask from where these "minimum standards of conduct" come. The answer is from the INDUSTRY ITSELF.
A lot of the questions that come up in this area can be answered by applying a straightforward concept: responsibility for one's own actions coupled with acceptance of the consequences of those actions.
There are generally accepted coding standards out there. We all know that buffer overflows are Bad Things, yet unbounded buffers still seem to magically appear in production code. Software manufacturers should be held to the same standards as everyone else. If your failure to exercise a reasonable amount of care causes harm, you should be liable to the person you harmed.
Similarly, if your cracking activities cause harm, or violate the law, then you should face the consequences.
Bottom line: Don't let companies off the hook for writing Bad Code, and don't let malicious crackers off the hook just because what they actually did was technologically possible.
Slashdot Mirror
Bottom line: SOMEONE had to invent caching. It very well could have been these guys. But if they approached one of my clients with an offer to license this thing, I would want to do a LOT of investigation before advising one way or the other.
If you have citations for cases that held it was not a fair use to get the same content in a different format than the one you already paid for, I'd appreciate it if you post those cites here or in my journal. I haven't seen any reported cases on that point.
That is why I said that I don't use file sharing software and that consequently there is almost no chance of the RIAA actually suing me. But electronic records can be changed, DHCP complicates addressing and mistakes get made, so I can't say there is absolutely no chance. But if I do get sued, I know the suit will be frivolous.
I would love to have someone accuse me illegally possessing those MP3s. I would produce the original CD from which I ripped the track, show that I OWN that source, assert my fair use rights, and promptly counterclaim for substantial damages of my own. Think about this: If I have paid for the content, and can legally rip an MP3 from whatever source for my own use, why can't I get a copy of an MP3 version of content I already paid for from another source? That sounds like a FAIR use of the content to me. In fact, I think that prohibiting such conversions to force consumers to repurchase the same content in a new format is an UNFAIR and deceptive business practice. In court, suing individual file traders has the potential to quickly become a bottomless pit of evdentiary and other legal issues for each file alleged to have been illegally downloaded.
These actions are almost universally seen by practitioners as abuses of the patent system, NOT as appropriate uses. Thankfully, in most instances current PTO procedure prevents these abuses. However, this type of prosecution tactic, even though it resulted in a patent issuing, still may not ultimately be successful because of a doctrine called "prosecution laches."
Generally, the doctrine of laches applies to protect a defendant when a plaintiff has sat on its rights for too long. The doctrine of prosecution history laches, very simply put, states that a patentee who has delayed prosection for too long may not enforce its patent once it issues. I am not saying that this is the case here; that is for a court to decide. But I do feel the need to note that this doctrine was recently "revived" by courts after a long period during which the doctrine was never even discussed, much less applied.
You may wonder who the patent holder was in the case that recently "revived" the doctrine of prosecution history laches. His name, I believe, is Jerome Lemelson.
Assuming everything you said is true (and I personally don't accept it but ...), don't you think that it is about time that sorry state of affairs changed?
Let's see .... do we make people give truthful and accurate information about their businesses and products (when they choose to say something) or do we let people say anything they feel like saying?
When I was in law school, I learned a name for the act described as:
- Knowingly stating false information; or recklessly stating information with disregard for its truth or falsity; or omitting information with the intent to create a false impression;
- With the intent that another rely upon your statements;
- Where the other party actually relies upon your statements; and
- Damages result.
It was called FRAUD. Then again, maybe law school somehow affected my sense of how the software industry is supposed to work. You decide.Any license is just a contract. There are literally millions of contracts that are fully performed and never litigated every day. You don't need a court opinion on any of those contracts to trust they are enforceable. You just trust that the terms are within the bounds of the law. I am of the opinion that the GPL's terms are within the bounds of the law as well.
Then it is usually so innovative that it is creating a brand new market or it is invalid over the prior art. You are allowed to have claims as broad as you want, as long as none of the claims describes something that is in the prior art. Not only are you allowed, it is your right under the Patent Act (35 U.S.C. section 101 et seq.)
See my earlier post re: distribution. Also, as for court cases, I don't have time to try to find one but trust me, the GPL is enforceable and valid.
The original poster said: Some software is licensed to customers, some is run internally in a service model ...
Licensing and running internally in a service model BOTH count as "distribution" under the GPL. It is very easy to create and enforce such licenses -- all you have to do it write the terms in the license and sue if you don't get the modified source from the licensee. If you don't like the GPL example, look at any one of the hundreds/thousands (if you can get your hands on a non-confidential copy) of licenses / agreements where independent contractors get access to source code to make modifications to programs provided they make the modified source code available. I believe the general term is a "code maintenance agreement."
Simply said, the difference is market power. A patent doesn't confer any ability to market something and shut others out of the market. The right to exclude is to exclude others from making, using, or selling only what is claimed in your patent. If the claims don't cover the product a competitor wants to sell, the patentee can't stop the competitor from entering the market. A monopolist can. It may be true in certain instances that there are no close substitutes for a patented product, but competitors can still make some noninfringing substitute and enter the market if they want. Monopoly power confers the ability to foreclose all competition in the marketplace.
Of course such a license can be created. It is called the GPL. See sections 2 and 3 available here. Enforcement is easy - bring a copyright infringement action. Identification of infringers is harder, but not impossible.
Call this a self-serving statement by one of those fscking IP lawyers, but your company should consult with a lawyer who knows software licensing, knows source code issues, and can advise your company properly.
A tangible object only becomes property when rights attach to that object. The core property right is the right to exclude others from using the subject property. To use another real estate example, think of the law of trespass. Trespass laws prevent others from using real estate.
Take this now to the next level - intellectual property. Because IP is based on an intangible ("an idea" as the author of this book has called it), the property is defined by the bounds of the rights in the intangible. The right to exclude is inextricably bound with the intangible and becomes part of the definition of the right. Therefore, the right is coextensive with the property because it IS the property.
To go back to the real estate example, the right to exclude is coextensive with the physical boundary of the land in question. That is why estates in land and the land itself are two very different things. The land itself is nothing. The estate in the land (that is, the rights attached to the parcel) is the property.
Most people (even most lawyers) never make this distinction when it comes to patents. You will sometimes hear talk about the "patent monopoly," but this term has been rejected by the Court of Appeals for the Federal Circuit (the federal appeals court with exclusive jurisdiction over patent cases in the United States). The Court has made clear that patents define the metes and bounds of a piece of property and do not grant monopolies. There are sound reasons for this distinction that I hope you will forgive me for not discussing here. it is enough for this post that the distinction exists.
The cooler the potential misuses for a technology, the scarier the potential misuses are.
And it is too bad too - this would have been just the last thing I needed to make my TiBook 100% M$-free. Unfortunately, I need IE for some features on my employer's website. I would have forgone those features if it was that easy to crash IE on OS X.
Calm down? I didn't realize I was ranting and raving. I answered a specific question - why production savings aren't passed along to the consumer. The theory holds true whether you are talking about lower software costs, a decrease in the price of blank CDs, or lowering the price of the gasoline used to fuel the delivery trucks bringing the CDs to the stores. If customers are paying a set price for your product, there is little incentive to pass along savings rather than pocket the increased profit (unless, as another poster pointed out, a lower price point will result a sales volume increase that more than offsets the increased profit from retaining the increased margin). This is just Business 101 (or Econ 101 - take your pick).
I agree that selling more product will increase overall profits. I should have made it clear that I was talking about per-unit profit.
That's easy. There are 2 ways to increase profits -- raise prices of lower costs (ok 3 - you can do both). Any of the three ways results in a higher profit margin (== price - cost). To pass along savings means to lower your margin or keep it steady. Increased margins == increased profits.
All I can say is that I wish you well on the road to your recovery. Unfortunately, I can't start that journey myself for a long time yet.
And Now For Something Completely Different: The definitive book on barcoding is "The Bar Code Book" by Roger C. Palmer (4th ed., (c) 2001 Helmers Publ., Inc., ISBN 0-911261-13-3). How do I know so much about barcodes? Trust me - you don't want to know.
Basic principles of negligence apply here. Negligence results from the following:
- The existence of a duty;
- The breach of that duty;
- Proximate Causation (the breach of duty was both the factual and legal cause of injury); and
- Damage (injury).
When determining whether a duty has been breached, you look at the standard of care that applies in that situation and see whether the actions taken meet (at a minimum) that standard. All I am saying is if a software manufacturer fails to meet the minimum standards of care in designing and/or manufacturing its product, it should suffer the same consequences as any other company that designs and manufactures products.No one realistically expects software manufacturers to forsee every possible flaw in their software. The law does not expect as much either. However, there are quite a few flaws that reasonably CAN be forseen. It is those flaws that must be prevented.
The law also does not penalize honest mistakes or accidents. There must be fault involved. That is why negligence requires the breach of a duty by not taking the minimum steps required to prevent the harm. Look at the Ford Pinto -- Ford chose not to incur a miniscule charge (I think it was about US $1/vehicle) to correct a flaw that allowed gasoline tanks to explode. If a software company does not follow good design practices to write minimally acceptable code, it should be liable just as Ford was.
By the way, you may ask from where these "minimum standards of conduct" come. The answer is from the INDUSTRY ITSELF.
There are generally accepted coding standards out there. We all know that buffer overflows are Bad Things, yet unbounded buffers still seem to magically appear in production code. Software manufacturers should be held to the same standards as everyone else. If your failure to exercise a reasonable amount of care causes harm, you should be liable to the person you harmed.
Similarly, if your cracking activities cause harm, or violate the law, then you should face the consequences.
Bottom line: Don't let companies off the hook for writing Bad Code, and don't let malicious crackers off the hook just because what they actually did was technologically possible.