As important as it is to destroy documents you no longer need/want on a timely basis, it is equally important to PRESERVE those you need. Obligations to retain documents arise from statutes (tax code for example), to business needs (yes, its old, but we still need the information), to rules of court (no matter WHAT your retention policy is, if you are in a lawsuit, or even threatened with one, you had better not discard ANYTHING related to the subject of the suit).
There is a legal principle called spoliation, which is a $5 word for destroying evidence. You can find that the mere fact you destroyed something hurts much more than whatever was in the document would have hurt.
Although treating the geographic location where a web page is viewed as the "place of publication" has some common-sense appeal and at least provides the argument that the law of that respective geographic location should control any action brought because of that location, there is one great mitigating factor: The US Constitution. In the recent case involving Yahoo, the United States District Court declared that a French Court's order requiring Yahoo! to remove auction items of Nazi memorabilia because such postings offended France's "collective memory" (NB - whatever the ^&$*#! that is) was unenforceable in the United States because that order violated the Constitution's First Amendment.
I do acknowledge that multi-national corporations have other additional problems, especially if they have offices/assets in those contries whose laws prohibit the content posted, but some protection is better than none. I predict that US courts will continue to follow the precedent set by the Yahoo! case.
It is NOT true that only public companies have to file annual reports -- ALL corporations do in many states.
Filing as an S-Corp DOES NOT relieve you of the obligation to file tax returns for the corporation -- it merely shifts who pays the tax. And THIS IS OPTIONAL.
As for a law -- try the Federal Fair Labor Standards Act. Also try the Internal Revenue Code.
Suffice it to say that your opinions are all wrong and unless you have specific legal training in these very complex areas, you should really refrain from giving out advice like this. You may even be practicing law without a license. All I was attempting to do is highlight some potential problem areas that should be considered before taking this path.
There is a BIG difference between STARTING a corporation and MAINTAINING a corporation.
It is cheap and easy to start a corporation - you fill out Articles of Organization and file them at the Secretary of State's Office with the associated filing fee
You must then file annual reports, create by-laws, file corporate tax reports, keep separate books, keep separate bank accounts (which are more expensive to maintain that personal bank accounts), pay dividends (or elect not to), hold annual shareholders, officers and directors meetings (yes - you meet with yourself if you are the only shareholder/officer/director, etc.
You are subject to double taxation - the corporation pays what it collects as fees, then you have to pay personal income tax on what you take as a salary
Depending on state, the corporation has to pay a yearly excise tax for its existence
The main reason people begin corporations is to have a shield against liability. The main reason businesses ask their "contractors" to start them is so they can avoid paying taxes. This in most cases is illegal. The mere fact that they are giving you this option implies to me that they think that you can be deemed an employee and thus subject to tax.
If you do not maintain a corporation properly, its existence can be disregarded (called "piercing" the corporate veil) and YOU can be PERSONALLY liable for any debts of the corporation -- INCLUDING TAXES. Trust me, you do NOT want the IRS and/or your state's tax authorities chasing you for back taxes, interest, and penalties -- all of which can be many times more than the actual tax owed.
IMHLO (L=legal), you should not agree to anything other than being paid as an employee with full withholding without first talking with an attorney who represents YOU -- definitely NOT your prospective employer's attorney (because of a conflict of interest).
Give me a break. They are overflowing the shelves here. Everyone wants a Game Cube or the latest title for PS2.
Of course, who wants to have to experience the green screen of death in the middle of a game? The thing doesn't even have a 3 button keyboard with Ctrl-Alt-Del. As described on/. of course.
I know the way things work here. If Hemos posts the article, it implies that he thinks that this particular article, selected from among the numerous submissions he gets, is somehting the/. community is interested in. As we know, not everyone reads every article and many more do not bother to read the source article.
IMHO, when/. staffers post articles, they have an obligation to do a little further digging to ensure that the summary they post (which is all many on/. see) is accurate. Conclusion: even though Hemos is not the drafter of that statement, he is responsible by posting it.
It is not a question of being subjective versus objective - those terms are properly applied only to opinions and analyses. It is merely a matter of being factually accurate.
Hey Hemos -- the story does NOT state that Sonic Blue "can't understand why the industry would sue them. It DOES say that they don't think they should be viewed by the industry as an enemy but rather as a partner. Keep it objective.
Of COURSE you can't give it away -- IT IS SOMEONE ELSE'S PROPERTY.
And you CAN improve on another's invention -- you can even get a patent for the improvement. You just may not be able to PRACTICE the improvement without infringing a patent on the original product.
EVERY DAY small inventors file for patents on new software. I know -- I write the applications. If you don't want to hire an attorney, the Patent Examiners will even WRITE YOUR CLAIMS FOR YOU -- they are required to under the law if you have a patentable invention.
Gee, a $345.00 filing fee plus a $605.00 fee later IF a patent issues for the opportunity to make some actual money with your code or even just give it away if you are altruistic. Sounds like a bargain to me. You are simply paying for PROPERTY -- that is the point you keep missing.
Learn more about the system and maybe your criticisms will become more focused and valid. I am ending my participation in this thread here.
Get your own patents and then you can tell "big business" what to do. The patent system is NOT unworkable. In case you didn't know, the fees for getting a patent are even reduced 50% for "small entities" - essentially individual inventors. The American Inventors Protection Act even gives American inventors more rights than foreigners filing for US patents. You just don't like the consequences the fact that a patent is property.
I am surprised that someone with a computer science background has this much trouble with an abstract concept - namely property. The owner of the property is free to do with it what they want. That means they can charge whathever they like for licenses, or even choose not to license it at all.
The fact is the patent system exists to promote progress. It does so by ensuring inventors can profit from their inventions. The time is limited so that society as a whole can use the invention when the patent duration has expired. If you are writing software that is covered by a patent, no matter how "new" it seems to you, the existence of a patent is iron-clad proof that at least one other person has done it before. Therefore, the patent holder has the right to profit from it. You do not because you are not the first to do it. No matter how good your code is, it is not an "advancement" because it is not the first. You are merely recreating what has been done. if that were allowable, patents on wheels would be issued on a regular basis.
Analogy with food? I made an analogy with driving.
As for individuals, you are seriously misguided. The patent system has ALWAYS affected individuals directly. It is IMPOSSIBLE in the US for a corporation to obtain a patent. They can own patents, but cannot obtain them. That right is reserved to inventors.
You are also seriously misguided about implementation. You have much too narrow a view on what patents cover. A patent must teach one of ordinary skill in the art how to make and use the invention so it can go into the public domain after the term of the patent has expired.
Individuals are the ones who are skilled in the art. You can make an invention out of wood. Many individuals have woodworking tools. Just because it is harder (or easier) to implement some inventions than others is not a reason to claim patents in those areas are bad.
If you aren't willing to play by the rules either work to change the rules or find another hobby or just keep your code to yourself.
You miss the entire point. A patent gives the holder the EXCLUSIVE right to make, use, and sell the invention because THE PATENTEE DID IT FIRST.
You wouldn't want just anyone coming into your house and eating your food. Why? Because it is your EXCLUSIVE PROPERTY and you have the EXCLUSIVE right to control its use. The exact same principle is at work here.
What you are advocating is not freedom. It is Communism. A free society respects private property.
The answer is simple then: keep your code to yourself or be adult enough to admit there is a legal risk in releasing potentially infringing software.
As for those "asshole companies" I think YOU forget that many of them began on $0.03 in someone's basement. The difference? The Company had the foresight to recognize that intellectual property is valuable.
Remember, you only need a license to drive a car if you want to drive on a public way. If you want to stay in your backyard, far away from your neighbors, then no one cares.
On the contrary, you have not spotted a weakness in my argument but rather an obstacle in development. If you want to develop software for your own personal use "as a hobby," then by all means do so. I do. But as soon as you want to release your software to the public, you have to play by the rules that govern public actions -- including the patent laws.
What gave me that idea (that generally open source is better engineered than commercial) is my experience with software on both ends of the spectrum, my CS education, and actually seeing the development efforts made on both open source projects and various commercial projects. It is just my opinion, but it is based on facts I have personally observed. The comment was not meant to be read as some fanciful speculation.
I have to disagree with your assertion that a noninfringement opinion is of "dubious value." At the beginning statges of development, you should have a decent draft of the program's requirements and some conception of its structure. It is at this point that a noninfringement opinion should be sought.
Patents on software protect functionality and to a certain extent, the structure that provides that functionality. If your project is not sufficiently developed so that an infringement analysis is possible or useful, the attorney giving the opinion will tell you that he does not have enough information to give the opinion. For those skeptics who are thinking "yeah, right" on this point, remember this: it is the attorney's reputation and malpractice policy on the line if he doesn't do his job right in giving the opinion.
I know this is Open Source, but I generally thought that most Open Source software was better engineered than much of the commercial stuff out there. One of the key components in a feasibility study BEFORE other development work begins is legal feasibility. If you don't believe me, dust off your copies of Pressman's Software Engineering and see what HE says. I'm not just making this up.
Part of a legal feasibility study has to be a patent infringement analysis. Whether you agree kthat software should be patentable or not, the fact it that in the US it IS patentable. If someone else made it first and was granted the exclusive right to make that product, then you will infringe on their rights if you make the product.
There is simply no excuse for not doing this analysis. Yes, there is some up-front cost to a patent attorney. However, with a large enough development group, this cost can easily be absorbed by the group at a nominal level per member. The potential consequence is that every developer can find themselves defending a patent infringement suit. The last estimate of which I am aware placed the cost of litigating an "average" infringement suit at just around $500,000.00. If the case is deemed "exceptional," the infringers could potentially have to pay the patentee's legal costs as well as their own, on top of paying damages for the patentee's lost profits.
Bottom line: all this can be avoided by getting a noninfringement opinion by a reputable and competent patent attorney. This is a basic software engineering step and should be performed at the very beginning of the development process. The attorney will even be able to suggest ways you can still go forward with the project, but do so in a way that does not infringe on someone else's rights.
...in Microsoft's view are only "bad" to the extent that every piece of software needed to access a discrete piece of information is not totally controlled by Microsoft. Bad for the computing public is good for MS because it means the strengthening of its monopoly on desktop systems and increased licensing revenues from the multiple programs necessary for each piece of information accessed.
The ideal model for MS is one where not only do you need different programs for different information (managed "seamlessly" of course by Windows) but also where MS gets to ding your credit card every time you access that information.
It pains me to see Mr. Berners-Lee's accomplishment being twisted by MS's greed.
For back up, see my other posts in reply to others. Also, the Magnusson-Moss Warranty Act is available courtesy of Cornell Law School.
Implied warranties usually last the "reasonable" life of the the product. Not much guidance, but it varies from state to state. Although M-M does not allow mfgs. to completely disclaim implied warranties, mfgs. can LIMIT the duration to the duration of any written warranty given. Therefore, a properly worded written warranty can potentially limit the duration of the implied warranty to 90 days in some cases.
As for the business presence, that is not necessary. However, there must be sufficient contacts within the state to make it fair to haul a company into court.
The implied warranty is created by the sale, so it comes from the merchant who sold the product, not necessarily the manufacturer. This is a very fact-dependent inquiry, so I must beg-off from providing more details.
The statute is M.G.L. ch. 106 sec. 2-316A. In conjunction with M.G.L. ch. 93A secs. 2 and 9 (the Mass. Consumer Protection Statute) this law is a very powerful tool indeed. Of course, most companies employ drones who simply do not care about legal obligations like these. Luckily in Mass., Small Claims Court allows claims of up to $2,000 (it may be more now) for a filing fee of just $19.00. Sometimes, you just gotta sue.
P.S. - chapter 93A tells you the steps that MUST be followed in order to sue.
This is not legal advice and does not create an attorney-cleint relationship. This is simply information about the law and may or may not apply to any particular situation. For legal advice you need to consult an attorney who represents you.
That said, in every state (and Dell has a business presence in every state which is why they always have to charge sales tax) there is an implied warranty of merchantability that comes into effect as soon as the sale is completed. This warranty is in addition to any written warranty from Dell. Under the federal Magnusson-Moss Warranty Act, for consumer sales, sellers are not allowed to disclaim this warranty.
The warranty essentially requires that the product you buy be of average fair quality. Four broken sets of hinges is not "average fair quality" IMHO. Additionally, in many, if not most, states there are consumer protection statutes that provide for up to 3X your damages (cost of the computer) plus attorneys fees.
Finally, in some states (Massachusetts is one) for sales to consumers the CONSUMER has the option of demanding a repair, replacement or a refund. Most written warranties state that it is the manufacturer's option to repair or replace.
Hope this gives you some information you can use and I wish you luck.
Slashdot Mirror
There is a legal principle called spoliation, which is a $5 word for destroying evidence. You can find that the mere fact you destroyed something hurts much more than whatever was in the document would have hurt.
[some filter defeating comments]
ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha
I do acknowledge that multi-national corporations have other additional problems, especially if they have offices/assets in those contries whose laws prohibit the content posted, but some protection is better than none. I predict that US courts will continue to follow the precedent set by the Yahoo! case.
It is NOT true that only public companies have to file annual reports -- ALL corporations do in many states.
Filing as an S-Corp DOES NOT relieve you of the obligation to file tax returns for the corporation -- it merely shifts who pays the tax. And THIS IS OPTIONAL.
As for a law -- try the Federal Fair Labor Standards Act. Also try the Internal Revenue Code.
Suffice it to say that your opinions are all wrong and unless you have specific legal training in these very complex areas, you should really refrain from giving out advice like this. You may even be practicing law without a license. All I was attempting to do is highlight some potential problem areas that should be considered before taking this path.
- It is cheap and easy to start a corporation - you fill out Articles of Organization and file them at the Secretary of State's Office with the associated filing fee
- You must then file annual reports, create by-laws, file corporate tax reports, keep separate books, keep separate bank accounts (which are more expensive to maintain that personal bank accounts), pay dividends (or elect not to), hold annual shareholders, officers and directors meetings (yes - you meet with yourself if you are the only shareholder/officer/director, etc.
- You are subject to double taxation - the corporation pays what it collects as fees, then you have to pay personal income tax on what you take as a salary
- Depending on state, the corporation has to pay a yearly excise tax for its existence
The main reason people begin corporations is to have a shield against liability. The main reason businesses ask their "contractors" to start them is so they can avoid paying taxes. This in most cases is illegal. The mere fact that they are giving you this option implies to me that they think that you can be deemed an employee and thus subject to tax.If you do not maintain a corporation properly, its existence can be disregarded (called "piercing" the corporate veil) and YOU can be PERSONALLY liable for any debts of the corporation -- INCLUDING TAXES. Trust me, you do NOT want the IRS and/or your state's tax authorities chasing you for back taxes, interest, and penalties -- all of which can be many times more than the actual tax owed.
IMHLO (L=legal), you should not agree to anything other than being paid as an employee with full withholding without first talking with an attorney who represents YOU -- definitely NOT your prospective employer's attorney (because of a conflict of interest).
Of course, who wants to have to experience the green screen of death in the middle of a game? The thing doesn't even have a 3 button keyboard with Ctrl-Alt-Del. As described on /. of course.
See my reply to the other comment similar to yours.
IMHO, when /. staffers post articles, they have an obligation to do a little further digging to ensure that the summary they post (which is all many on /. see) is accurate. Conclusion: even though Hemos is not the drafter of that statement, he is responsible by posting it.
It is not a question of being subjective versus objective - those terms are properly applied only to opinions and analyses. It is merely a matter of being factually accurate.
Hey Hemos -- the story does NOT state that Sonic Blue "can't understand why the industry would sue them. It DOES say that they don't think they should be viewed by the industry as an enemy but rather as a partner. Keep it objective.
If you do get in trouble on Ebay, send them a copy of the court decision. I would LOVE to see that particular MS practice eliminated immediately.
And you CAN improve on another's invention -- you can even get a patent for the improvement. You just may not be able to PRACTICE the improvement without infringing a patent on the original product.
EVERY DAY small inventors file for patents on new software. I know -- I write the applications. If you don't want to hire an attorney, the Patent Examiners will even WRITE YOUR CLAIMS FOR YOU -- they are required to under the law if you have a patentable invention.
Gee, a $345.00 filing fee plus a $605.00 fee later IF a patent issues for the opportunity to make some actual money with your code or even just give it away if you are altruistic. Sounds like a bargain to me. You are simply paying for PROPERTY -- that is the point you keep missing.
Learn more about the system and maybe your criticisms will become more focused and valid. I am ending my participation in this thread here.
I am surprised that someone with a computer science background has this much trouble with an abstract concept - namely property. The owner of the property is free to do with it what they want. That means they can charge whathever they like for licenses, or even choose not to license it at all.
The fact is the patent system exists to promote progress. It does so by ensuring inventors can profit from their inventions. The time is limited so that society as a whole can use the invention when the patent duration has expired. If you are writing software that is covered by a patent, no matter how "new" it seems to you, the existence of a patent is iron-clad proof that at least one other person has done it before. Therefore, the patent holder has the right to profit from it. You do not because you are not the first to do it. No matter how good your code is, it is not an "advancement" because it is not the first. You are merely recreating what has been done. if that were allowable, patents on wheels would be issued on a regular basis.
As for individuals, you are seriously misguided. The patent system has ALWAYS affected individuals directly. It is IMPOSSIBLE in the US for a corporation to obtain a patent. They can own patents, but cannot obtain them. That right is reserved to inventors.
You are also seriously misguided about implementation. You have much too narrow a view on what patents cover. A patent must teach one of ordinary skill in the art how to make and use the invention so it can go into the public domain after the term of the patent has expired.
Individuals are the ones who are skilled in the art. You can make an invention out of wood. Many individuals have woodworking tools. Just because it is harder (or easier) to implement some inventions than others is not a reason to claim patents in those areas are bad.
If you aren't willing to play by the rules either work to change the rules or find another hobby or just keep your code to yourself.
Your rights end where another's rights begin.
You wouldn't want just anyone coming into your house and eating your food. Why? Because it is your EXCLUSIVE PROPERTY and you have the EXCLUSIVE right to control its use. The exact same principle is at work here.
What you are advocating is not freedom. It is Communism. A free society respects private property.
As for those "asshole companies" I think YOU forget that many of them began on $0.03 in someone's basement. The difference? The Company had the foresight to recognize that intellectual property is valuable.
Remember, you only need a license to drive a car if you want to drive on a public way. If you want to stay in your backyard, far away from your neighbors, then no one cares.
On the contrary, you have not spotted a weakness in my argument but rather an obstacle in development. If you want to develop software for your own personal use "as a hobby," then by all means do so. I do. But as soon as you want to release your software to the public, you have to play by the rules that govern public actions -- including the patent laws.
What gave me that idea (that generally open source is better engineered than commercial) is my experience with software on both ends of the spectrum, my CS education, and actually seeing the development efforts made on both open source projects and various commercial projects. It is just my opinion, but it is based on facts I have personally observed. The comment was not meant to be read as some fanciful speculation.
Patents on software protect functionality and to a certain extent, the structure that provides that functionality. If your project is not sufficiently developed so that an infringement analysis is possible or useful, the attorney giving the opinion will tell you that he does not have enough information to give the opinion. For those skeptics who are thinking "yeah, right" on this point, remember this: it is the attorney's reputation and malpractice policy on the line if he doesn't do his job right in giving the opinion.
Part of a legal feasibility study has to be a patent infringement analysis. Whether you agree kthat software should be patentable or not, the fact it that in the US it IS patentable. If someone else made it first and was granted the exclusive right to make that product, then you will infringe on their rights if you make the product.
There is simply no excuse for not doing this analysis. Yes, there is some up-front cost to a patent attorney. However, with a large enough development group, this cost can easily be absorbed by the group at a nominal level per member. The potential consequence is that every developer can find themselves defending a patent infringement suit. The last estimate of which I am aware placed the cost of litigating an "average" infringement suit at just around $500,000.00. If the case is deemed "exceptional," the infringers could potentially have to pay the patentee's legal costs as well as their own, on top of paying damages for the patentee's lost profits.
Bottom line: all this can be avoided by getting a noninfringement opinion by a reputable and competent patent attorney. This is a basic software engineering step and should be performed at the very beginning of the development process. The attorney will even be able to suggest ways you can still go forward with the project, but do so in a way that does not infringe on someone else's rights.
The ideal model for MS is one where not only do you need different programs for different information (managed "seamlessly" of course by Windows) but also where MS gets to ding your credit card every time you access that information.
It pains me to see Mr. Berners-Lee's accomplishment being twisted by MS's greed.
I don't think you could be more correct on this point.
Implied warranties usually last the "reasonable" life of the the product. Not much guidance, but it varies from state to state. Although M-M does not allow mfgs. to completely disclaim implied warranties, mfgs. can LIMIT the duration to the duration of any written warranty given. Therefore, a properly worded written warranty can potentially limit the duration of the implied warranty to 90 days in some cases.
The implied warranty is created by the sale, so it comes from the merchant who sold the product, not necessarily the manufacturer. This is a very fact-dependent inquiry, so I must beg-off from providing more details.
The statute is M.G.L. ch. 106 sec. 2-316A. In conjunction with M.G.L. ch. 93A secs. 2 and 9 (the Mass. Consumer Protection Statute) this law is a very powerful tool indeed. Of course, most companies employ drones who simply do not care about legal obligations like these. Luckily in Mass., Small Claims Court allows claims of up to $2,000 (it may be more now) for a filing fee of just $19.00. Sometimes, you just gotta sue.
P.S. - chapter 93A tells you the steps that MUST be followed in order to sue.
The relevant Massachusetts statute is Massachusetts General Laws chapter 106, section 2-316A
That said, in every state (and Dell has a business presence in every state which is why they always have to charge sales tax) there is an implied warranty of merchantability that comes into effect as soon as the sale is completed. This warranty is in addition to any written warranty from Dell. Under the federal Magnusson-Moss Warranty Act, for consumer sales, sellers are not allowed to disclaim this warranty.
The warranty essentially requires that the product you buy be of average fair quality. Four broken sets of hinges is not "average fair quality" IMHO. Additionally, in many, if not most, states there are consumer protection statutes that provide for up to 3X your damages (cost of the computer) plus attorneys fees.
Finally, in some states (Massachusetts is one) for sales to consumers the CONSUMER has the option of demanding a repair, replacement or a refund. Most written warranties state that it is the manufacturer's option to repair or replace.
Hope this gives you some information you can use and I wish you luck.