One thing I've NEVER seen here....
on
Fair IP Laws?
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· Score: 5, Interesting
... is a CONSTRUCTIVE criticism of software patents. I've seen plenty of comments that reduce down to "patents are bad" but no one ever says why. As a patent attorney who writes and litigates software patents I'd like to find out what exactly people are against with patents in this area. Is it because the USPTO has so few good examiners in the area that there is a sense that the quality of software patents is poor? Or is it simply that because there are so many talented programmers out there who can write code that does the same thing as the patented code that they don't want any impediments whatsoever? As for the former, I agree it is a concern, but one the USPTO is trying to address by hiring more (and more talented) examiners. As for the latter, I have serious problems because I see this as simply asking for special treatment in the eyes of the law.
Patents are most necessary in areas where it is EASY to copy inventions. If everyone needed a few million $ worth of hardware to make the invention, the patent doesn't add that much value against the masses of people who want to copy your invention, it only protects you against the few who have the actual resources to do so. Every other industry has dealt with patents for years. It is time for the software developers as a whole to do so as well.
IP lawyer! Give me a break! Last time I checked software companies made money by SELLING software. IP laws are the only things that protect intangibles like software and allow companies to actually realize a return on their investment.
Uninformed people complain about software patents because they are "bad." No one ever quantifies "bad" or defines "bad." They simply label patents as "bad." What these people reason from is the flawed premise that because something is easy to copy (i.e. - I can write code to do that) that it is unworthy of protection. They could not be further from the truth.
Without IP laws there will be no innovation. History discloses thousands of inventions that are easy to copy. It is precisely because someone CAN copy an invention, getting the benefits without the development costs incurred by the original inventor that the patent and other IP laws exist.
Flame away... I'm expecting a karma hit. But I'll keep writing those software patents and suing the theives (yes -- THEIVES) who infringe them anyway.
Look again. We have PLENTY of situations where statutes shift fees to the loser. We don't have a pure "loser pays" system, but fee shifts are there for appropriate cases. Case in point: 35 USC sec. 285 allows the judge in a patent case to award attorneys fees to the prevailing party. Consumer protection statutes do this as well. So do the antitrust laws.
There are also plenty of situations where it is NOT appropriate to shift fees to the loser -- such as where the determining factor in a case is an unsettled point of law and both sides are willing to litigate to get an appellate court to settle the question.
This tactic is not confined to the patent/IP area. It unfortunately is inherent in our adversary system. Someone with a questionable claim asserts that claim in the court against an adversary they know cannot devote the time or the resources to fight on the merits. So a rational business opts for the economically sound decision - get out of it as cheaply as possible, i.e., settle.
With patents, however, asserting a patent known to be invalid is an ANTITRUST VIOLATION. The opposing party can get treble damages plus attorneys fees. Also, if the case is not well founded, the patent statute (specifically 35 U.S.C. sec. 285) allows a judge to declare the case "exceptional" and award attorneys fees to the prevailing party. Infringement defendants use this provision to recoup defense costs of patent cases that are not well founded.
Also, because patent cases are EXCLUSIVELY federal, the Federal Rules of Civil Procedure, spoecifically Rule 11, requre attorneys to certify that cases filed are well founded. The Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over appeals of patent cases, has held in View Eng'g v. Robotic Vision Sys., 208 F.3d 981 (Fed. Cir. 2000) that Rule 11 requires an attorney to "read the claims onto an accused device." The process of reading claims means that you identify each element of the claim in the patent and then find a corresponding feature in the device you accuse of infringement. Rule 11 allows judges to sanction parties who fail to do that step.
Unfortunately, competent patent counsel are few and far between. I have seen cases brought by sole practitioners who spend their days doing personal injury work and have no concept of patents or the technology of the invention. This is how many frivolous suits get filed - by practitioners who do not take the time to learn the law and advise their clients properly. Also unfortunately, the only way to end it is to stomach it out and fight to the end to invalidate the patent. The words "legal defense fund" come to mind here.....
As I've already seen alluded to in other posts, surely there will be need for Win XX machines to get back to the initial start state after they've crashed. I am starting a company that will sell reset buttons to accomplish this. No *nix users in the target market -- sorry.
Should make it easy for authors to ensure compliance. Even I am willing to state that nothing I submit violates the DCMA. The DMCA, however, is another story....
Quoth the article, "Microsoft still loves Apple's Macinstosh. . .." Duh! Without Apple, a few things happen:
The argument that there is real competition in desktop OSes gets a LOT weaker, thereby undermining M$'s defense in the anti-trust suit;
The mere fact that M$ stops supporting the Mac (or even neglecting to provide.NET support for it) will undermine M$'s position in the antitrust suit because the remaining (sane) states will argue even harder that M$ should be broken up because these would be continuing actions attempting to cement a 100% monopoly on the desktop by using M$'s market power in office applications to undermine Apple; and
M$ will have no one left to imitate.
I can't wait for my new TiBook to arrive -- it will be a M$-free environment that I can use at work now that everything I need in my office is webified. I see my productivity going up substantially now that my work will not be constantly interrupted by the Blue Screen of Death.
Am I even bothering to hit the refresh button in the vain hope that there will actually be some news on here today? I know there must be some in here somewhere, but today I can't be bothered clicking on source links and reading far enough to try to ascertain what is real and what is 4/1 trash. I'm outta here until tomorrow.
Floppies (3.5" versions - DS, HD) as formatted for IBM, can hold 1.44 Mb of data. That is 1.44 REAL megabytes - the 2^20 kind.
So, here is the math I should have done:
1 Kilobyte (Kb) = 2^10 bytes = 1,024 bytes
48,576 bytes / 1,024 bytes/Kb = 47.44 Kb
So the real difference is about 47K, well under the capacity of a single floppy. I screwed up the math. Too much time practicing law, not enough number crunching. My apologies.
I have to note that you cite to a change that was instituted. Interesting, but all the CS books on my shelf still refer to the 2^n*10 measurement.
I also note that when your format a 100 Mb disk, your OS (MacOS and Windows - probably *nix systems too - I haven't tested it) reports the volume size as about 72 Mb. I propose that the cause of the "problem" is the fact that disk manufacturers redefined the term to make their disks appear to have greater capacity.
Think about this: if you are a consumer, do you really care if a megabyte equals 2^20 bytes or one million bytes? I propose that you do not - you simply care that everyone who uses the term "megabyte" means the same thing so you can accurately compare apples to apples. AFAIK, one megabyte of RAM is still 2^20 bytes of RAM. Why shouldn't it be the same for non-volatile media?
How many consumers have called disk manufacturers or other help lines asking "Where did my space go? The label says 100 Mb but my computer says there are only 72. I want my other 28." If you adopt the "solution" you propose, you have to get the RAM industry and the OS providers to adopt it as well to be consistent.
Of course, the "standard" 2^n*10 system of measuring bytes means nothing if you are a disk manufacturer. There, you just redefine (in VERY small print, of course) a megabyte (or other flavorbyte) as one million bytes.
This gives us:
Disk megabyte = 1,000,000 bytes
REAL Megabyte = 1,048,576 bytes
Difference = 48,576 bytes, or about 15 floppies worth of space per Mb. With Gb sized disks, the difference is almost 49 floppies per Gb. Definition is everything.
Although I agree it is easy to draw a line between legitimate and illegitimate uses in this instance, I usually stop short of labeling a technological endeavor itself as having no legitimate purposes. For example, if a startup company wanted to manufacture a compatible smartcard to compete in sales of that hardware, they would find that most likely the current manufacturer has some sort of legal protection for its design. If that protection is a patent, the patent would actually have to teach you how to make the smartcard (or at least the patented features of the smartcard). If however, the current manufacturer is relying on keeping its design a trade secret, then efforts to crack the smartcard could be a legitimate reverse engineering effort to allow entry into the smartcard market.
Nintendo lost a case like that a few years ago when it claimed that video game manufacturers had to license its hardware interface design for game cartridges. The court held that competing game manufacturers could reverse engineer the hardware for the purpose of being able to enter the marketplace for Nintendo game cartridges. That is the weakness with trade secrets - once someone discovers the secret (legitimately, of course) your protection is gone.
DeCSS and Canal+ -- Hypocritical Posts?
on
Cracking the Smartcards
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· Score: 4, Interesting
In other posts (they may have been in the other/. story posted earlier) I read comments that in effect said that people were hypocritical if they supported posting DeCSS code and not the code that decrypts Canal+'s system. If in fact the reason people are drawing a distinction between the 2 because one scheme was cracked by an individual person and the other by a global corporation with millions of $ to pump into R&D, then I agree, that distinction is hypocritical. However, there is a principled distinction that can be drawn between the 2 based on intent.
The lawsuit alleges that Murdoch's company released the information with the intent that others would use the information to steal proprietary information (the video streams) from Murdoch's competitors. That is MUCH different than cracking a scheme for the sake of the knowledge itself or merely to see if it can be done.
The former case is analogous to the following: Employee has combination to Boss' safe where all company assets are kept. Employee and Boss have an antagonistic relationship. Employee publishes an ad in "Robbers Daily News" with the address of the business and safe combination knowing (or hoping with a high probability that his hope will come true) that Robber reading the RDN will use the combination and steal the assets. Robber actually does use and steal. Employee is part of a conspiracy to steal the company's assets and is guilty of the theft as much as Robber. Don't say that my scenario is not accurate - I assure you as a lawyer that under this hypothetical situation, Employee is a conspirator.
Also, don't say that trying to look at the subjective intent of the actors kcreates an unworkable situation because WE DO IT EVERY DAY. In courts all across this and other countries around the world, we use the intent of the actor to determine the guilt of people for crimes (or to determine levels of guilt) or liability for civil offenses. Example: Man runs Woman over with car. Did Man intend to kill woman? If yes == murder. If no == somehting else. Did Man drive recklessly such that his actions constituted a depraved indifference to human life. If yes == murder or homocide. If no == something else. Was Man driving carelessly? If yes == involuntary manslaughter or negligent homocide. If no == something else. Was Man driving according to all posted rules and carefully? If yes == accident, no intent (or substitute for intent like recklessness), therefore NOT GUILTY.
Although it is more work looking at subjective intent, it usually provides a more thorough examination of the situation and an individualized solution. Simple, bright line rules just do not work well in complex situations. Case in point: the DMCA.
I highly question your "legal" analysis purporting to classify this as a fair use and not a derivative work. i did not mention fair use because in my opinion, it simply does not apply. As for my research, I went to the site and read their User Agreement, Privacy Statement and other materials. Although fluffy and nice sounding, the Privacy Statement cannot apply to a student whose professor uploaded a paper. It is a basic premise of contract law that a person who is not a party to the contract cannot be bound by it.
You will note that the "Services" section describing the plagarism prevention system states that they keep a database of previously submitted papers - hence a "derivative work" in the form of a compilation of independently copyrighted sources - the papers themselves. Turnitin is engaging in a commercial endeavor, charging for a comparison of a submitted paper against their derivative work.
Despite your suggestion that I am engaging in ego puffery and ranting, my opinion was just that - an opinion. It was based on the reading I did at the site, my computer science training, years of legal training, and extensive courtroom experience litigating intellectual property, contract, and other matters. It was squarely within context. As for John Barrie's comments regarding Fair Use, of course he is going to say he is doing nothing wrong - he is one of the founders. I hope he got a law firm to give him that legal opinion before he started charging for his service. If so, I merely state that my legal opinion differs. That's what courts are for - to determine whose legal opinion is correct.
Before you accuse me of ranting and ego puffing, do some research yourself. Either that or wait until you get Moderator Access and mod me down. I NEVER sacrifice accuracy and don't appreciate when someone tries to paint me with the FUD brush.
On the home page, they crow about helping educators reduce plagarism and even post a quote from a supposed UC Berkeley Prof (maybe he really is and really said what they claim - I haven't checked). However, in the Usage Agreement, there is an express limitation prohibiting "commercial use." Call me suspicious, but it seems that a professor engaged in his profession and checking papers of students is engaged in a "commercial use."
Also call me critical, but the Copyright Act since 1976 has provided that a copyright attaches AUTOMATICALLY when a work is fixed in a medium, regardless of whether a copyright notice is affixed. If this company is keeping copies of papers submitted by professors for use in their future searches, IMHLO (L = Legal) they have created a derivative work in violation of the student's copyright. The Professor's submitting to the site is an act of contributory infringement. Can anyone say "class action lawsuit" ?
I only know what works for me and that is making sure when I argue in Court that I make sure that the judge before whom I argue has complete correct facts about the technology and the applicable law.
If you want to get started in the way you describe, I suggest getting some basic exposure to lobbying efforts generally by contacting the Electronic Freedom Foundation or the ACLU's Cyber-Liberties group. They are much better suited to help you on your new carrer path than I.
Try actually reading what I wrote and stop putting words in my mouth. I NEVER said that.com should be US only. I DID say that federal courts should not use a US statute to grant a foreign government rights in the US that it does not even have under that own government's laws.
I also said that we need to educate lawmakers so they can make informed decisions. You made up the "Americans first" language - I didn't say that. Then again, if you didn't know that the bullshit was coming out of your own mouth, you wouldn't post as an AC.
Principles of Constitutional law require that the federal courts have LIMITED powers and jurisdiction. Congress also by the Constitution has limited powers. The federal courts have enough problems determining what a State's law is - never mind that of a foreign country. I also think that the Court inappropriately imports foreign law into a US statute with this decision. That interferes with the US's sovereignty.
Since when do federal courts protect the "trademark" rights of foreign governmental entities in the names of geographic locations? I am stunned and amazed, shocked and apalled (and a whole bunch of other s & a word combinations) at this decision. I fail to see first how anyone but the most inexperienced newbie could believe a.com was the "official" site of a Spanish governmental entity (ok - maybe I'm giving people more credit than they deserve on this point).
Nevertheless, at the least there are no trademark "rights" available to protect under Spanish law in the mere name "Barcelona," so this decision is based on literally nothing.
< ON-SOAPBOX rant_level=3>
This is the EXACT REASON why I continuously plead, beg, cajole, threaten, etc. all those in the tech community to get involved politically and legally. Lawyers and judges who do not understand technological and/or intellectual property rights (and believe me - those lawyers and judges are in the overkwhelming majority) pose clear and present dangers to the legal framework controlling the tech world because these people do not understand the issues enough to make informed decisions and do not (and cannot) comprehend the consequences of the positions they advocate and decisions they make. Each of us has a responsibility to educate these people to ensure that the law evolves in a way that fairly addresses the interests of not only the techies but society as a whole.
Contrary to popular beilef, judges LOATHE default judgments. They would much rather have the parties settle or decide the case on its merits. As an attorney, I can tell you that convincing a judge to let you win by default because of the other side's procedural slip-up is one of the hardest arguments to make.
In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.
It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.
IP is NOT anti-small guy. Cases on point: Thomas Edison, Jerome Lemelson, and most recently, Ronald Katz. Check out the Google search results dealing with Mr. Katz and you will see that he has succeeded in getting some VERY big companies to take licenses in his patents. See how many of these names you recognize: Microsoft, AT&T, Merck & Co., Vanguard Group, Fiserv, Inc., TALX . . . the list continues...
DISCLAIMER: THIS IS NOT LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY-CLEINT RELATIONSHIP. IF YOU HAVE QUESTIONS REGARDING YOUR SPECIFIC RIGHTS, SEEK THE ADVICE OF A COMPETENT ATTORNEY WHO REPRESENTS YOU. THE FOLLOWING MERELY CONVEYS INFORMATION ABOUT THE LAW AND SHOULD NOT BE RELIED UPON AS GUIDANCE OR ADVICE TO FOLLOW IN A SPECIFIC INSTANCE. THIS STATEMENT IS MERELY INTENDED TO CONVEY INFORMATION GENERALLY.
In the realm of patents, you have no rights unless you are an "inventor." The test for inventorship is stated in the Manual of Patent Examining Procedure (available at The United States Patent & Trademark Office website) in section 2137.01:
"The definition for inventorship can be simply stated" 'The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor . . ..Insofar as defining an inventor is concerned, reduction to practice, per se, is irrelevant [except for simultaneous conception and reduction to practice, Fiers v. Revel, 984 F.2d 1164, 1168 (Fed. Cir. 1993. One must contribute to the conception to be an inventor."
The rights of corporations to have inventions assigned derives from the fact that they pay inventors to invent for them. Thus, unless your beta testers contributed to the conception of part of the invention, they are not inventors and have no rights. "[O]ne who suggests an idea of a result to be accomplished, rather than the means of accomplishing it, is not a coinventor." Ex parte Smernoff, 215 USPQ 545, 547 (Bd. App. 1982).
Copyright is different. Where patents protect functionality, copyright protects the expression. Thus, while you may copyright source code, someone else may write different code to accomplish the exact same result without infringing on your copyrights. However, for a beta tester to have rights in this area, they would have to contribute code (source or object).
Generally, beta testers are compensated for their effors through reduced license fees for the finished product (or even free copies). However, this is usually done before allowing someone to be a beta tester. Depending on the details on the situation, it may be well worth your while to consult an attorney who specializes in IP issues. The typical patent infringement battle, depending on the complexity of the technology and claims asserted, can run well in excess of $500,000. Fees in the multi-million dollar range are not out of the ordinary.
The first sale doctrine has been applied to software. See: Softman Products Co., L.L.C. v. Adobe Systems, Inc., Case No. CV 00-04161 DDP, United States District Court for the Central District of California.
Adobe sued Softman because Softman was unbundling packages of Adobe applications and selling the individual apps separately. Adobe asked for a preliminary injunction prohibiting this practice. Softman was successful in denying the injunction because of the first sale doctrine. Of course, what happens at a trial and/or appeal may change things, but the courts are at least looking seriously at the doctrine in the software realm.
Slashdot Mirror
Patents are most necessary in areas where it is EASY to copy inventions. If everyone needed a few million $ worth of hardware to make the invention, the patent doesn't add that much value against the masses of people who want to copy your invention, it only protects you against the few who have the actual resources to do so. Every other industry has dealt with patents for years. It is time for the software developers as a whole to do so as well.
Uninformed people complain about software patents because they are "bad." No one ever quantifies "bad" or defines "bad." They simply label patents as "bad." What these people reason from is the flawed premise that because something is easy to copy (i.e. - I can write code to do that) that it is unworthy of protection. They could not be further from the truth.
Without IP laws there will be no innovation. History discloses thousands of inventions that are easy to copy. It is precisely because someone CAN copy an invention, getting the benefits without the development costs incurred by the original inventor that the patent and other IP laws exist.
Flame away ... I'm expecting a karma hit. But I'll keep writing those software patents and suing the theives (yes -- THEIVES) who infringe them anyway.
There are also plenty of situations where it is NOT appropriate to shift fees to the loser -- such as where the determining factor in a case is an unsettled point of law and both sides are willing to litigate to get an appellate court to settle the question.
With patents, however, asserting a patent known to be invalid is an ANTITRUST VIOLATION. The opposing party can get treble damages plus attorneys fees. Also, if the case is not well founded, the patent statute (specifically 35 U.S.C. sec. 285) allows a judge to declare the case "exceptional" and award attorneys fees to the prevailing party. Infringement defendants use this provision to recoup defense costs of patent cases that are not well founded.
Also, because patent cases are EXCLUSIVELY federal, the Federal Rules of Civil Procedure, spoecifically Rule 11, requre attorneys to certify that cases filed are well founded. The Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over appeals of patent cases, has held in View Eng'g v. Robotic Vision Sys., 208 F.3d 981 (Fed. Cir. 2000) that Rule 11 requires an attorney to "read the claims onto an accused device." The process of reading claims means that you identify each element of the claim in the patent and then find a corresponding feature in the device you accuse of infringement. Rule 11 allows judges to sanction parties who fail to do that step.
Unfortunately, competent patent counsel are few and far between. I have seen cases brought by sole practitioners who spend their days doing personal injury work and have no concept of patents or the technology of the invention. This is how many frivolous suits get filed - by practitioners who do not take the time to learn the law and advise their clients properly. Also unfortunately, the only way to end it is to stomach it out and fight to the end to invalidate the patent. The words "legal defense fund" come to mind here.....
As I've already seen alluded to in other posts, surely there will be need for Win XX machines to get back to the initial start state after they've crashed. I am starting a company that will sell reset buttons to accomplish this. No *nix users in the target market -- sorry.
Should make it easy for authors to ensure compliance. Even I am willing to state that nothing I submit violates the DCMA. The DMCA, however, is another story....
- The argument that there is real competition in desktop OSes gets a LOT weaker, thereby undermining M$'s defense in the anti-trust suit;
- The mere fact that M$ stops supporting the Mac (or even neglecting to provide
.NET support for it) will undermine M$'s position in the antitrust suit because the remaining (sane) states will argue even harder that M$ should be broken up because these would be continuing actions attempting to cement a 100% monopoly on the desktop by using M$'s market power in office applications to undermine Apple; and
- M$ will have no one left to imitate.
I can't wait for my new TiBook to arrive -- it will be a M$-free environment that I can use at work now that everything I need in my office is webified. I see my productivity going up substantially now that my work will not be constantly interrupted by the Blue Screen of Death.Am I even bothering to hit the refresh button in the vain hope that there will actually be some news on here today? I know there must be some in here somewhere, but today I can't be bothered clicking on source links and reading far enough to try to ascertain what is real and what is 4/1 trash. I'm outta here until tomorrow.
So, here is the math I should have done:
-
1 Kilobyte (Kb) = 2^10 bytes = 1,024 bytes
- 48,576 bytes / 1,024 bytes/Kb = 47.44 Kb
So the real difference is about 47K, well under the capacity of a single floppy. I screwed up the math. Too much time practicing law, not enough number crunching. My apologies.I also note that when your format a 100 Mb disk, your OS (MacOS and Windows - probably *nix systems too - I haven't tested it) reports the volume size as about 72 Mb. I propose that the cause of the "problem" is the fact that disk manufacturers redefined the term to make their disks appear to have greater capacity.
Think about this: if you are a consumer, do you really care if a megabyte equals 2^20 bytes or one million bytes? I propose that you do not - you simply care that everyone who uses the term "megabyte" means the same thing so you can accurately compare apples to apples. AFAIK, one megabyte of RAM is still 2^20 bytes of RAM. Why shouldn't it be the same for non-volatile media?
How many consumers have called disk manufacturers or other help lines asking "Where did my space go? The label says 100 Mb but my computer says there are only 72. I want my other 28." If you adopt the "solution" you propose, you have to get the RAM industry and the OS providers to adopt it as well to be consistent.
This gives us:
- Disk megabyte = 1,000,000 bytes
- REAL Megabyte = 1,048,576 bytes
Difference = 48,576 bytes, or about 15 floppies worth of space per Mb. With Gb sized disks, the difference is almost 49 floppies per Gb. Definition is everything.Nintendo lost a case like that a few years ago when it claimed that video game manufacturers had to license its hardware interface design for game cartridges. The court held that competing game manufacturers could reverse engineer the hardware for the purpose of being able to enter the marketplace for Nintendo game cartridges. That is the weakness with trade secrets - once someone discovers the secret (legitimately, of course) your protection is gone.
The lawsuit alleges that Murdoch's company released the information with the intent that others would use the information to steal proprietary information (the video streams) from Murdoch's competitors. That is MUCH different than cracking a scheme for the sake of the knowledge itself or merely to see if it can be done.
The former case is analogous to the following: Employee has combination to Boss' safe where all company assets are kept. Employee and Boss have an antagonistic relationship. Employee publishes an ad in "Robbers Daily News" with the address of the business and safe combination knowing (or hoping with a high probability that his hope will come true) that Robber reading the RDN will use the combination and steal the assets. Robber actually does use and steal. Employee is part of a conspiracy to steal the company's assets and is guilty of the theft as much as Robber. Don't say that my scenario is not accurate - I assure you as a lawyer that under this hypothetical situation, Employee is a conspirator.
Also, don't say that trying to look at the subjective intent of the actors kcreates an unworkable situation because WE DO IT EVERY DAY. In courts all across this and other countries around the world, we use the intent of the actor to determine the guilt of people for crimes (or to determine levels of guilt) or liability for civil offenses. Example: Man runs Woman over with car. Did Man intend to kill woman? If yes == murder. If no == somehting else. Did Man drive recklessly such that his actions constituted a depraved indifference to human life. If yes == murder or homocide. If no == something else. Was Man driving carelessly? If yes == involuntary manslaughter or negligent homocide. If no == something else. Was Man driving according to all posted rules and carefully? If yes == accident, no intent (or substitute for intent like recklessness), therefore NOT GUILTY.
Although it is more work looking at subjective intent, it usually provides a more thorough examination of the situation and an individualized solution. Simple, bright line rules just do not work well in complex situations. Case in point: the DMCA.
You will note that the "Services" section describing the plagarism prevention system states that they keep a database of previously submitted papers - hence a "derivative work" in the form of a compilation of independently copyrighted sources - the papers themselves. Turnitin is engaging in a commercial endeavor, charging for a comparison of a submitted paper against their derivative work.
Despite your suggestion that I am engaging in ego puffery and ranting, my opinion was just that - an opinion. It was based on the reading I did at the site, my computer science training, years of legal training, and extensive courtroom experience litigating intellectual property, contract, and other matters. It was squarely within context. As for John Barrie's comments regarding Fair Use, of course he is going to say he is doing nothing wrong - he is one of the founders. I hope he got a law firm to give him that legal opinion before he started charging for his service. If so, I merely state that my legal opinion differs. That's what courts are for - to determine whose legal opinion is correct.
Before you accuse me of ranting and ego puffing, do some research yourself. Either that or wait until you get Moderator Access and mod me down. I NEVER sacrifice accuracy and don't appreciate when someone tries to paint me with the FUD brush.
Also call me critical, but the Copyright Act since 1976 has provided that a copyright attaches AUTOMATICALLY when a work is fixed in a medium, regardless of whether a copyright notice is affixed. If this company is keeping copies of papers submitted by professors for use in their future searches, IMHLO (L = Legal) they have created a derivative work in violation of the student's copyright. The Professor's submitting to the site is an act of contributory infringement. Can anyone say "class action lawsuit" ?
Maybe the comment was misguided enough to warrant a response but not misguided enough to be a troll. Shut the fuck up yourself or stop posting AC.
If you want to get started in the way you describe, I suggest getting some basic exposure to lobbying efforts generally by contacting the Electronic Freedom Foundation or the ACLU's Cyber-Liberties group. They are much better suited to help you on your new carrer path than I.
I also said that we need to educate lawmakers so they can make informed decisions. You made up the "Americans first" language - I didn't say that. Then again, if you didn't know that the bullshit was coming out of your own mouth, you wouldn't post as an AC.
Principles of Constitutional law require that the federal courts have LIMITED powers and jurisdiction. Congress also by the Constitution has limited powers. The federal courts have enough problems determining what a State's law is - never mind that of a foreign country. I also think that the Court inappropriately imports foreign law into a US statute with this decision. That interferes with the US's sovereignty.
Nevertheless, at the least there are no trademark "rights" available to protect under Spanish law in the mere name "Barcelona," so this decision is based on literally nothing.
< ON-SOAPBOX rant_level=3>
This is the EXACT REASON why I continuously plead, beg, cajole, threaten, etc. all those in the tech community to get involved politically and legally. Lawyers and judges who do not understand technological and/or intellectual property rights (and believe me - those lawyers and judges are in the overkwhelming majority) pose clear and present dangers to the legal framework controlling the tech world because these people do not understand the issues enough to make informed decisions and do not (and cannot) comprehend the consequences of the positions they advocate and decisions they make. Each of us has a responsibility to educate these people to ensure that the law evolves in a way that fairly addresses the interests of not only the techies but society as a whole.
< /ON-SOAPBOX rant_level=0>
In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.
It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.
By the way, how much of a hit will my Karma take if I mod up my own post to make sure you see this?
IP is NOT anti-small guy. Cases on point: Thomas Edison, Jerome Lemelson, and most recently, Ronald Katz. Check out the Google search results dealing with Mr. Katz and you will see that he has succeeded in getting some VERY big companies to take licenses in his patents. See how many of these names you recognize: Microsoft, AT&T, Merck & Co., Vanguard Group, Fiserv, Inc., TALX . . . the list continues...
In the realm of patents, you have no rights unless you are an "inventor." The test for inventorship is stated in the Manual of Patent Examining Procedure (available at The United States Patent & Trademark Office website) in section 2137.01:
"The definition for inventorship can be simply stated" 'The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor . . . .Insofar as defining an inventor is concerned, reduction to practice, per se, is irrelevant [except for simultaneous conception and reduction to practice, Fiers v. Revel, 984 F.2d 1164, 1168 (Fed. Cir. 1993. One must contribute to the conception to be an inventor."
The rights of corporations to have inventions assigned derives from the fact that they pay inventors to invent for them. Thus, unless your beta testers contributed to the conception of part of the invention, they are not inventors and have no rights. "[O]ne who suggests an idea of a result to be accomplished, rather than the means of accomplishing it, is not a coinventor." Ex parte Smernoff, 215 USPQ 545, 547 (Bd. App. 1982).
Copyright is different. Where patents protect functionality, copyright protects the expression. Thus, while you may copyright source code, someone else may write different code to accomplish the exact same result without infringing on your copyrights. However, for a beta tester to have rights in this area, they would have to contribute code (source or object).
Generally, beta testers are compensated for their effors through reduced license fees for the finished product (or even free copies). However, this is usually done before allowing someone to be a beta tester. Depending on the details on the situation, it may be well worth your while to consult an attorney who specializes in IP issues. The typical patent infringement battle, depending on the complexity of the technology and claims asserted, can run well in excess of $500,000. Fees in the multi-million dollar range are not out of the ordinary.
Adobe sued Softman because Softman was unbundling packages of Adobe applications and selling the individual apps separately. Adobe asked for a preliminary injunction prohibiting this practice. Softman was successful in denying the injunction because of the first sale doctrine. Of course, what happens at a trial and/or appeal may change things, but the courts are at least looking seriously at the doctrine in the software realm.