The "debate" that old laws may not cover new technology was settled a long time ago in a variety of contexts. The law is a surprisingly adaptable tool. Good laws speak to core concepts of human action and interaction and it is up to courts to fit the innumerable factual scenarios they see into an existing legal framework.
For example, the US Supreme Court held that any human creation under the sun is patentable as long as it meets the statutory requirements of novelty, usefulness, and unobviousness. Thus, the creations of nanotechnology, like biotech and computer software are patentable. (Believe it or not, there was a serious question as to whether software was patentable until recently - it still is not in most countries).
As for the specific uses of nanotech-created devices, I think that people will find that new devices fit nicely into the old legal boxes. This is not to say there will not be argument over which box it should go in, but it will most assuredly be fit into some box.
I am breaking my usual rule of not replying to ACs for only the second time here. YOU are assuming that any time two people have the same idea that b oth developed the idea independently. You are also assuming that only tangible objects can be stolen. Both statements could not be further from the truth.
The legal concept of property does not require a physical object. In fact, a mere physical object is nothing to the law. It only achieves some legal significance when rights attach to it. Most notable is the right to exclude others from using it - the core of all property rights.
Proof that "ideas" can be stolen:
MS Windows; and
MacOS,
I find it difficult to believe that a software engineer cannot understand abstract concepts and has to look only at physical items.
If you feel that the policy choice of the patent and copyright laws of giving creators the exclusive use of their creations for limited periods of time is incorrect then DO SOMETHING - speak out to legislators to change the law. Get involved with industry groups. As the title of my first post implies, we have only ourselves to blame if the laws that cover our technology practices are bad ones. Don't be an Anonymous Coward complaining from the sidelines.
As a lawyer concentrating in patents and a software engineer, this story hits topics near and dear to me. Part of this article is dead-on: The quality of patents actually issued would be much greater (and thus less subject to attack) if Congress would stop diverting user fees from the PTO. These fees should be used to hire examiners, especially in technology areas. What do you think a recruiting officer at the PTO's chances of success are for attracting computer scientists on a government salary with no perks or stock options? How is the PTO supposed to improve the system if Congress keeps treating it like a cash cow for pork-barrel projects instead of allowing the PTO to help further technological progress and innovation?
As with all legal areas involving technology, if we as technology professionals do not make our voices heard, as the group most immediately and directly impacted by actions like this, then we have no one but ourselves to blame.
As for the sections of the article dealing with "abuses" by the infamous Jerome Lemelson (I'll let you search yourself if you are not familiar with him and his patent portfolio) and his "submarine patents," the particular aspect of patent law that allowed him to file applications, let them lie dormant for years while industries sprung up, then have new patents issue covering already established practices, the article is merely proagating more FUD. The law has changed and it is no longer possible to do this. In fact, the rule now is that applications are now published 18 months after filing - even before issuance.
Finally, ask yourself: If you worked hard and invented something, wouldn't you want to benefit from it instead of having someone with more resources steal it and sweep you under the rug? Patents provide that benefit. A good patent lawyer is the inventor's best friend because he will make sure the inventor is protected to the maximum extent permitted. And despite popular opinion, the PTO statistics say that fewer than 3% of all patents issued make money for the inventor, so getting a patent is not an instant win in the lottery.
I am of the opinion that this program's operation violates the copyright of the original page's owner. Under the copyright act, a copyright automatically attaches to any work once it is fixed in some medium. Saving an HTML file on a disk counts. I would guess that this program alters the original HTML tags to add links to advertisers sites. This altered HTML page would constitute a derivative work under the Copyright Act, requiring the author's permission.
Yes, this is an unresearched opinion and I do not know if a court has considered a similar case. However, it is the one I came up with when discussing MS's Smart Tags and one I still feel is worth making.
You are incorrect in many respects. If a trade secret is revealed in a way that does not cause it to lose its status as a trade secret, then the company can still exclude others from using the information. Also, there are federal laws covering trade secrets (like the Electronic Espionage Act). The likelihood that federal law covers trade secrets is high enough so that is no longer "more likely" that state laws control. And although there is some tension among the various forms of protection for intellectual property, the choice is driven not by a system of encourgaement for one form over another, but rather by the type of protection that most closely fits your needs.
Finally, if you are not a lawyer, I wish you would refrain from offering opinions aqs to what the law is, especially those that are so clearly incorrect. If you are a lawyer, do some research before posting if you don't know the subject.
Of course it has somthign to do with the law. A court could decide that because the virus was able to email the docs to people who are not obligated to keep the information secret, then all protection is lost. The key inquiry is what steps the company took to protect the information. In fact, take this scenario:
Company A regularly updates its virus software but the timing was off for this update and they were infected. Company B haphazardly updates its virus protection. Company A may keeps its trade secret protection. Company B does not. Why? Because A took reasonable steps to protect itself and B did not.
I am not aware of any reported court cases dealing with this exact fact pattern. However, I can tell you that the ability to protect a trade secret depends in large part on the steps taken to protect the secret. Traditionally, this means doing things like having employees sign confidentiality agreements and limiting the number of people who can access certain information.
Inquiries to decide whether something is truly protectable as a trade secret are extremely fact intensive. If this were my case, I would be examining how widespead news of this virus was and what steps the company took to protect itself from the virus, and depending on who I was representing, argue either for or against the proposition that those steps were reasonable.
If I was trying to defeat a claim that information should be protected as a trade secret, I would probably even argue that a company that needs to protect trade secrets was unreasonable in running Microsoft software. Lest you think I am merely MS bashing, be advised that at least one insurance company writing policies covering information and computer assets charges higher premiums to policy holders who run MS software because of the increased security risk to the comapny, which directly translates into increased risk of loss for the insurer.
Like it or not, the Feds are probably the most tech-savvy of all the world's law enforcement agencies. Also, with propoer procedures, including obtaining a search warrant, most of these procedures are legal.
You should be aware though that the US Supreme Court appears to be taking the issue of high tech's effects on privacy very seriously. In Kyllo v. United States, 121 S. Ct. 2038 (2001) (available on LexisOne - free registration required) the USSC held that the police's use of a thermal imaging unit to detect the use of heat lamps to grow marijuana inside the defendant's home violated the 4th Amendment's prohibition on unreasonable searches and seizures.
I predict that the USSC will continue to take privacy matters very seriously as technology progresses.
I'm sorry, that "pirated software" comment is hilarious!
On top of all the infamous human rights violations, China has virtually NO enforcement of intellectual property laws. For that matter, I do not think they have any IP laws at all.
Bottom line: the COMPANY puts out the product. The engineers have their hands tied in some instances, but the company as a whole puts its name on the product and releases it. Professional architects do not let managers make decisions that affect the structural integrity of the buildings they design. Sofdtware engineers must do the same. It is incumbent on the engineers to educate the managers and take the necessary steps to encourage best practices.
Maybe mthis is becoming a recurring theme for me, but it seems that those companies who actually engineer their products rather than simply cobbling them together from a variety of bits and pieces have fewer problems of this sort.
Someday the virtues of engineering best practices, and, dare I say it, even formal methods and correctness proofs, will be apparent to all. Ask yourself: why do we require the designers of our septic systems to have engineering licenses, but don't require the same from those who write the software that controls significant parts of our information infrastructure?
I have to agree that not only do some users take out their frustrations inappropriately in fora like this, but that many of those users feel that it is entirely appropriate to do so.
I personally see no reason why those who participate in these fora fail to recognize that the other participants are people like themselves who would appreciate a little common courtesy and a modicum of respect.
The recording conduct you describe is illegal in Massachusetts if you record the VOICES along with the actions if you don't get permission first.
As for what other courts have found in dealing with the federal statute and the statutes of other states, none of it matters. The Massachusetts Supreme Judicial Court gets the last say as to what Massachusetts law is and means. This is also the rule for every other state supreme court.
This case cannot be appealed to the US Supreme Court because there is no federal law involved. It deals with a Massachusetts Statute and the USSC has no power to interpret any state's law.
Finally, this is not a case dealing with someone in the public eye, whether such person put themselves there (as with performers) or was thrust there by some turn of events, so your comments about fame affecting privacy expectations is completely off the point.
In a (very) limited amount of time I searched for a reported court case and could not find one. By "reported" I mean officially published. The problem is that cases like these with consumers are typically brought in small claims courts where they are reported in legal newspapers and usually nowhere else.
However, as for the legal authority, I cite most states' common law of contracts. If you would like a reference for the proposition that a contract cannot be unilaterally changed by one party, look to Williston or Corbin on Contracts or the Restatement of Contracts.
The manufacturer should provide a refund in that case. However, you will have to fight like the dickens to get them to do it. I suggest asking the store where you purchase it to examine a copy of the license before you buy.
As for "72 hour grace period" the only things I am aware of that this rule applies to are contracts made in your home and home improvement contracts. There are probably other specialized cases as well, but not software as far as I know.
Correct me if I'm wrong, but isn't putting something in the fine print, education enough? When the user hits "I Agree" or "I Accept" or whatever it is, aren't they legally agreeing to whatever is in the fine print that they just agreed to, whether they actually read it or not?
OK, I'm correcting. Please see my post re: consumers and licenses above. Especially see my reply to the first reply my post received.
For the "one copy, one computer", unfortunately not. ..
This term is in the license. When a court invalidates the license, it is wiped out. In these cases, the terms of the contract are set when the consumer buys (not licenses - BUYS) the software. The license is legally viewed in these instances as an illegal attempt to introduce terms into a contract (the sale) that already exists and is set. Result: the consumer owns the software and can install it on as many machines as s/he likes and do with it what they will.
I agree that companies can legally do this. However, the manner in which it is done can have serious legal consequences. With consumer sales, in my humble legal opinion, a shrinkwrap license just doesn't rise to the level of clearly and conspicuously disclosing the terms as the law requires in many, if not most, jurisdictions.
I for one question the legality of this scheme with copies of XP sold to consumers for home use. The problem is with the way it is done. Courts have invalidated terms of shrinkwrap software licenses on the grounds that the terms of the sale (and thus the company's contract with the consumer) were set at the register and that the license terms are an invalid attempt by one party to unilaterally change the contract terms.
It seems to me that unless these terms are clearly and conspicuously disclosed BEFORE the sale, it is a breach of contract and an invasion of privacy to which the consumer did not consent.
"...being an American means you also have the inalienable right to be hectored by moralists and immoralists of every stripe
and cajoled by an array of hucksters..."
I agree that any semi-intelligent person should be able to easily see through 99.99999% of these scams. However, as the existence of a bevy of consumer protection laws at both the federal and state levels attests, the days of caveat emptor (let the buyer beware) are over in the US. As someone said in some consumer law case I read somewhere (sorry I can't give the cite off the top of my head, but I assure you it was some judge and I am paraphrasing) consumer laws are meant to protect the credulous, the most vulnerable members of society.
Slashdot Mirror
For example, the US Supreme Court held that any human creation under the sun is patentable as long as it meets the statutory requirements of novelty, usefulness, and unobviousness. Thus, the creations of nanotechnology, like biotech and computer software are patentable. (Believe it or not, there was a serious question as to whether software was patentable until recently - it still is not in most countries).
As for the specific uses of nanotech-created devices, I think that people will find that new devices fit nicely into the old legal boxes. This is not to say there will not be argument over which box it should go in, but it will most assuredly be fit into some box.
The legal concept of property does not require a physical object. In fact, a mere physical object is nothing to the law. It only achieves some legal significance when rights attach to it. Most notable is the right to exclude others from using it - the core of all property rights.
Proof that "ideas" can be stolen:
- MS Windows; and
- MacOS,
I find it difficult to believe that a software engineer cannot understand abstract concepts and has to look only at physical items.If you feel that the policy choice of the patent and copyright laws of giving creators the exclusive use of their creations for limited periods of time is incorrect then DO SOMETHING - speak out to legislators to change the law. Get involved with industry groups. As the title of my first post implies, we have only ourselves to blame if the laws that cover our technology practices are bad ones. Don't be an Anonymous Coward complaining from the sidelines.
As with all legal areas involving technology, if we as technology professionals do not make our voices heard, as the group most immediately and directly impacted by actions like this, then we have no one but ourselves to blame.
As for the sections of the article dealing with "abuses" by the infamous Jerome Lemelson (I'll let you search yourself if you are not familiar with him and his patent portfolio) and his "submarine patents," the particular aspect of patent law that allowed him to file applications, let them lie dormant for years while industries sprung up, then have new patents issue covering already established practices, the article is merely proagating more FUD. The law has changed and it is no longer possible to do this. In fact, the rule now is that applications are now published 18 months after filing - even before issuance.
Finally, ask yourself: If you worked hard and invented something, wouldn't you want to benefit from it instead of having someone with more resources steal it and sweep you under the rug? Patents provide that benefit. A good patent lawyer is the inventor's best friend because he will make sure the inventor is protected to the maximum extent permitted. And despite popular opinion, the PTO statistics say that fewer than 3% of all patents issued make money for the inventor, so getting a patent is not an instant win in the lottery.
Yes, this is an unresearched opinion and I do not know if a court has considered a similar case. However, it is the one I came up with when discussing MS's Smart Tags and one I still feel is worth making.
Finally, if you are not a lawyer, I wish you would refrain from offering opinions aqs to what the law is, especially those that are so clearly incorrect. If you are a lawyer, do some research before posting if you don't know the subject.
Company A regularly updates its virus software but the timing was off for this update and they were infected. Company B haphazardly updates its virus protection. Company A may keeps its trade secret protection. Company B does not. Why? Because A took reasonable steps to protect itself and B did not.
Inquiries to decide whether something is truly protectable as a trade secret are extremely fact intensive. If this were my case, I would be examining how widespead news of this virus was and what steps the company took to protect itself from the virus, and depending on who I was representing, argue either for or against the proposition that those steps were reasonable.
If I was trying to defeat a claim that information should be protected as a trade secret, I would probably even argue that a company that needs to protect trade secrets was unreasonable in running Microsoft software. Lest you think I am merely MS bashing, be advised that at least one insurance company writing policies covering information and computer assets charges higher premiums to policy holders who run MS software because of the increased security risk to the comapny, which directly translates into increased risk of loss for the insurer.
I don't recall either the NSA or the CIA being law enforcement agencies, which is what my comment referred to.
You should be aware though that the US Supreme Court appears to be taking the issue of high tech's effects on privacy very seriously. In Kyllo v. United States, 121 S. Ct. 2038 (2001) (available on LexisOne - free registration required) the USSC held that the police's use of a thermal imaging unit to detect the use of heat lamps to grow marijuana inside the defendant's home violated the 4th Amendment's prohibition on unreasonable searches and seizures.
I predict that the USSC will continue to take privacy matters very seriously as technology progresses.
"No nuclear materials were ever at risk..."
"IE was not illegally 'tied' to Windows..."
"MS is not a monopoly..."
"Ok, if MS is a monopoly, we are a good monopoly..."
"Consumers will benefit from Windows being able to do everything ..."
"Consumers want us to control the world..."
"I've been made King? Awww, shucks! You really shouldn't have..."
How did they ever find out? Did the Russians track it and notify us?
I'm sorry, that "pirated software" comment is hilarious!
On top of all the infamous human rights violations, China has virtually NO enforcement of intellectual property laws. For that matter, I do not think they have any IP laws at all.
Bottom line: the COMPANY puts out the product. The engineers have their hands tied in some instances, but the company as a whole puts its name on the product and releases it. Professional architects do not let managers make decisions that affect the structural integrity of the buildings they design. Sofdtware engineers must do the same. It is incumbent on the engineers to educate the managers and take the necessary steps to encourage best practices.
Someday the virtues of engineering best practices, and, dare I say it, even formal methods and correctness proofs, will be apparent to all. Ask yourself: why do we require the designers of our septic systems to have engineering licenses, but don't require the same from those who write the software that controls significant parts of our information infrastructure?
I personally see no reason why those who participate in these fora fail to recognize that the other participants are people like themselves who would appreciate a little common courtesy and a modicum of respect.
As for what other courts have found in dealing with the federal statute and the statutes of other states, none of it matters. The Massachusetts Supreme Judicial Court gets the last say as to what Massachusetts law is and means. This is also the rule for every other state supreme court.
This case cannot be appealed to the US Supreme Court because there is no federal law involved. It deals with a Massachusetts Statute and the USSC has no power to interpret any state's law.
Finally, this is not a case dealing with someone in the public eye, whether such person put themselves there (as with performers) or was thrust there by some turn of events, so your comments about fame affecting privacy expectations is completely off the point.
How many data flow diagrams do you think these programmers created before writing the code? Survey says.......?
if (true) ... no, I mean if (false) ... no, I really mean if (true).....
Damn! It keeps changing every time I measure it....
However, as for the legal authority, I cite most states' common law of contracts. If you would like a reference for the proposition that a contract cannot be unilaterally changed by one party, look to Williston or Corbin on Contracts or the Restatement of Contracts.
As for "72 hour grace period" the only things I am aware of that this rule applies to are contracts made in your home and home improvement contracts. There are probably other specialized cases as well, but not software as far as I know.
Exactly right.
OK, I'm correcting. Please see my post re: consumers and licenses above. Especially see my reply to the first reply my post received.
This term is in the license. When a court invalidates the license, it is wiped out. In these cases, the terms of the contract are set when the consumer buys (not licenses - BUYS) the software. The license is legally viewed in these instances as an illegal attempt to introduce terms into a contract (the sale) that already exists and is set. Result: the consumer owns the software and can install it on as many machines as s/he likes and do with it what they will.
I agree that companies can legally do this. However, the manner in which it is done can have serious legal consequences. With consumer sales, in my humble legal opinion, a shrinkwrap license just doesn't rise to the level of clearly and conspicuously disclosing the terms as the law requires in many, if not most, jurisdictions.
It seems to me that unless these terms are clearly and conspicuously disclosed BEFORE the sale, it is a breach of contract and an invasion of privacy to which the consumer did not consent.
I agree that any semi-intelligent person should be able to easily see through 99.99999% of these scams. However, as the existence of a bevy of consumer protection laws at both the federal and state levels attests, the days of caveat emptor (let the buyer beware) are over in the US. As someone said in some consumer law case I read somewhere (sorry I can't give the cite off the top of my head, but I assure you it was some judge and I am paraphrasing) consumer laws are meant to protect the credulous, the most vulnerable members of society.