Your "very easy fix" is a good way to get the poster sued and fired. And oh yeah - it won't work in the USA. The USA does not have the "absolute novelty" requirement that most other countries do. You have one year in the US to file a patent application after details have been published.
I am a patent lawyer. I do not represent you and will not represent you if you contact me. I likely do not represent your company. I am not giving you legal advice. I can tell you these general things that I happen to know about this area:
In the US, most employees are employees at will. Employees at will can be fired for any reason or no reason.
If your company has any clue at all about IP, your employment agreement likely requires you to assign ownership of your inventions to the company and to cooperate during the patenting process
If you refuse to assign in violation of an employment agreement, the company can sue you to ask a court to force you to sign a document assigning your ownership rights.
A company does not NEED an inventor's cooperation. As owner of the invention, it can file paperwork with the USPTO stating that the inventor is being uncooperative. In most countries outside the USA, the company can apply for patent protection in its own name.
Being fired for non-cooperation in patenting can have other negative consequences as well. Among those are loss of benefits, inability to find new employment, loss of stock or option grants, loss of matching funds in retirement accounts, etc. Get a lawyer - one who specializes in employment law - BEFORE you go down this path. Do NOT go to the company's lawyer. The company's lawyer represents the COMPANY - NOT YOU.
The supposed "benefits" are for increased concert ticket sales. I have to presume that there are spill-over effects for merchandise like t-shirts and posters. Historically, this revenue has gone to the BAND - not the music companies. As I understand it, the music companies have typically kept revenues from album sales as their primary compensation. An argument can be made then that piracy is bad for music companies whose business model is based on the ability to sell recordings and control distribution of recordings while piracy benefits bands whose business model is based primarily on live performance.
Every time I see a Gibson SG mentioned I can't help but think of Angus Young from AC/DC. That, in turn caused me to picture Rob on stage with an SG, shirtless, and in short pants.
BRRRRRRRR! It is going to take a while to recover from THAT one!
Never underestimate the bandwidth of a station wagon full of disks. The information on those disks is encrypted using PGP with a Really Big Key(tm) , of course.
And I've read at least one law review article arguing that we need to give Constitutional rights to chimeras. Given recent advances in genetics, I'd argue that my article is more likely to be right than your article. It is a basic premise of the ability of courts to adjudicate that the court doing the adjudication must have jurisdiction - both personal and subject matter. If either is lacking, the court's judgment will be defective. Congress, in 28 USC 1338(a) deprived the courts of the several states the ability to hear copyright cases. Therefore, no subject matter jurisdiction in state courts for copyright claims.
If you aren't convinced, then I'd like to pull rank as a practicing attorney over a law student. However, your Slashdot ID is lower than mine, so I guess we are even (for now).
"everyone knows there are 25 law schools in the top 20"
New math? Possibly. More likely, the result of more claims to presence in the top 20 than slots available. Also possibly the result of some rotation in/out of the top 20, although I have not checked that against the historical lists.
Eh... ignore most of that... apparently state courts don't have subject matter jurisdiction to hear federal copyright claims (unless it arises as a counterclaim, which would be unlikely). Actually, federal jurisdiction over copyright is exclusive - claims cannot be brought in state courts even as counterclaims. Any judgment a state court makes with respect to infringement of a copyright is void as a nullity.
I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue. There is no issue to resolve. So far as I have seen, the decisions are unanimous in finding this act an unconstitutional exercise is legislation. There is no circuit split to resolve. IMHO, I don't see this case as one for a grant of cert.
After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either. Nothing in court is a slam dunk.
The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state. That's right, it does.
The necessary and proper clause, however would apply to Congress' power to "promote the progress of science and useful arts," and potentially allow this law to apply to states, regardless of their sovereign immunity. I suppose you could also make a claim involving the commerce clause there... Note that other courts have come to the same result for "clarification acts" involving patents and trademarks too. There is a marked difference between giving Congress power to legislate in an area and compelling a state to be answerable in a federal court for violations of Constitutional rights. The better argument would be that infringement violates the exclusive rights of the IP holder, so a taking of property pursuant to the 5th Amendment has occurred without just compensation.
The federal court would be right to dismiss this case for lack of jurisdiction, No it wouldn't. The case was brought as a copyright case and the federal court clearly has subject matter jurisdiction, indeed exclusive jurisdiction, pursuant to 28 U.S.C. sec. 1338(a).
but the law itself could very well be upheld, so long as the case is brought in a state court. (Of course, this would just make forum selection for practicing lawyers and students taking civil procedure more of a pain). Copyright cases cannot be brought in state court. Se 28 U.S.C. sec. 1338(a).
To the extent I implied that the enforcement clause of the 14th Amendment can only be used to abolish the vestiges of slavery, I was incorrect and you are correct. Sorry for any confusion. The way it works, however, is that you need to identify a constitutional right (due process, free speech, etc.) under a substantive provision that can be enforced against a state using the enforcement clause of the 14th Amendment.
State universities have the same immunity from suit as the state itself. Private universities do not. There are other legal problems suing universities in RIAA-type suits that make a successful claim unlikely. Additionally, universities have the resources needed to vigorously defend themselves in court so any suit against a university is likely to be long, hard fought, and very expensive on both sides.
Generally I agree with everything you said. However, you should note one thing: Copyright suits can only be brought in federal court. If a state has immunity from suit in federal court under the 11th Amendment and does not waive that immunity, then copyright holders as a group are left without any remedy if a state infringes on their copyrighted work. In this particular case, the copyright holder had other causes of action based on the business transaction with the state, but generic copyright infringement is left without a remedy.
I've now read the opinion. I may be confusing the rationale for enactment of the Civil Rights Act with the rationale for the 14th Amendment. However, the case does hold that the enforcement clause of the 14th Amendment does not permit Congress to abrogate sovereign immunity for copyright claims - at least on the scant legislative history of the act.
This case has NOTHING to do with copyrights whatsoever.
Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a). If not for that twist, the "tort" of copyright infringement would likely fall under most states' Tort Claims acts and authors of copyrightable works would not be left without a remedy for infringement by states (or hoping against hope for a waiver of 11th Amendment immunity).
Good luck on your Fed Courts exam. I have found that my Fed Courts class was far and away the most valuable class I took in law school. And by the way -- everyone knows there are 25 law schools in the top 20.
The "Nutty Ninth" is actually one of the leading circuits for copyright law along with the 2nd Circuit. The opinion is a district court opinion and cites to a 5th Circuit opinion holding the same way. It also cites to other decisions with similar holdings for the analogous statutes in the patent and trademark areas.
I know as a law student you probably know more law than I do, but as a practicing IP lawyer, I have to disagree with you. I don't think a petition for certiorari would be granted and if it was, I think the decision of the trial court would be upheld.
The USA is a conglomerate of separate and independent governments. Each state has its own government that co-exists with the federal government. The federal government is a government of limited powers. It has only the powers that the states gave it when those states ratified the Constitution. The 11th Amendment to the Constitution specifies that states cannot be compelled to defend suits in federal courts.
States, as independent sovereigns with their own governments, enjoy sovereign immunity. No one can take legal action against a sovereign unless the sovereign gives permission to do so. Various Tort Claims acts allow those injured by states to sue the states to recover damages.
The US Constitution was amended in the 19th century to include the 14th Amendment as a response to slavery and its vestiges. Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery. Title VII of the Civil Rights Act of 1964 was enacted using Congress's powers under the 14th Amendment.
Therefore, what I presume the Court's ruling held is that Congress could not abrogate sovereign immunity of the states for copyright infringement because such infringement is not one of the vestiges of slavery. Also, I suspect that there is probably some discussion of states' immunity from suit in federal courts for copyright infringement. Since copyright infringement is a claim that can only be brought in federal court, you can see how a state could infringe at will by refusing to permit itself to be sued in federal court on a claim that is impossible to bring instate courts.
One slight quibble. I want to see the study that shows TOTAL overall costs. The way I understand it, costs are only lowered for the file's creator. The difference between the original cost and the "lower" cost has been shifted to others.
The company would get the exact same economic result (all other things being equal) if it charged an amount equal to a percentage of bandwidth costs.
What do you expect from a state that is the home of Jack Daniel's whiskey but distills and stores all that whiskey in Lynchburg, part of Moore County, a dry county?
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Your "very easy fix" is a good way to get the poster sued and fired. And oh yeah - it won't work in the USA. The USA does not have the "absolute novelty" requirement that most other countries do. You have one year in the US to file a patent application after details have been published.
Being fired for non-cooperation in patenting can have other negative consequences as well. Among those are loss of benefits, inability to find new employment, loss of stock or option grants, loss of matching funds in retirement accounts, etc. Get a lawyer - one who specializes in employment law - BEFORE you go down this path. Do NOT go to the company's lawyer. The company's lawyer represents the COMPANY - NOT YOU.
I am intrigued by your thoughts and ideas and would subscribe to your newsletter or pamphlet.
Respectfully,
Intrigued
The supposed "benefits" are for increased concert ticket sales. I have to presume that there are spill-over effects for merchandise like t-shirts and posters. Historically, this revenue has gone to the BAND - not the music companies. As I understand it, the music companies have typically kept revenues from album sales as their primary compensation. An argument can be made then that piracy is bad for music companies whose business model is based on the ability to sell recordings and control distribution of recordings while piracy benefits bands whose business model is based primarily on live performance.
Actually THIS is Patently Absurd.
BRRRRRRRR! It is going to take a while to recover from THAT one!
I, for one, prefer my Les Paul ...
Never underestimate the bandwidth of a station wagon full of disks. The information on those disks is encrypted using PGP with a Really Big Key(tm) , of course.
If you aren't convinced, then I'd like to pull rank as a practicing attorney over a law student. However, your Slashdot ID is lower than mine, so I guess we are even (for now).
Now I know that shorthand references in posts to on-topic posts later in the page are off topic. Thanks for the defense.
To the extent I implied that the enforcement clause of the 14th Amendment can only be used to abolish the vestiges of slavery, I was incorrect and you are correct. Sorry for any confusion. The way it works, however, is that you need to identify a constitutional right (due process, free speech, etc.) under a substantive provision that can be enforced against a state using the enforcement clause of the 14th Amendment.
State universities have the same immunity from suit as the state itself. Private universities do not. There are other legal problems suing universities in RIAA-type suits that make a successful claim unlikely. Additionally, universities have the resources needed to vigorously defend themselves in court so any suit against a university is likely to be long, hard fought, and very expensive on both sides.
Generally I agree with everything you said. However, you should note one thing: Copyright suits can only be brought in federal court. If a state has immunity from suit in federal court under the 11th Amendment and does not waive that immunity, then copyright holders as a group are left without any remedy if a state infringes on their copyrighted work. In this particular case, the copyright holder had other causes of action based on the business transaction with the state, but generic copyright infringement is left without a remedy.
I've now read the opinion. I may be confusing the rationale for enactment of the Civil Rights Act with the rationale for the 14th Amendment. However, the case does hold that the enforcement clause of the 14th Amendment does not permit Congress to abrogate sovereign immunity for copyright claims - at least on the scant legislative history of the act.
Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a). If not for that twist, the "tort" of copyright infringement would likely fall under most states' Tort Claims acts and authors of copyrightable works would not be left without a remedy for infringement by states (or hoping against hope for a waiver of 11th Amendment immunity).
Good luck on your Fed Courts exam. I have found that my Fed Courts class was far and away the most valuable class I took in law school. And by the way -- everyone knows there are 25 law schools in the top 20.
You never know ... some of the real lawyers on Slashdot may come out and comment on it.
Love me then ... and scroll down for my explanation.
No one said it was a good thing. However, it is the way it has been (at least in the US) ever since we were colonies of Great Britain.
I know as a law student you probably know more law than I do, but as a practicing IP lawyer, I have to disagree with you. I don't think a petition for certiorari would be granted and if it was, I think the decision of the trial court would be upheld.
The USA is a conglomerate of separate and independent governments. Each state has its own government that co-exists with the federal government. The federal government is a government of limited powers. It has only the powers that the states gave it when those states ratified the Constitution. The 11th Amendment to the Constitution specifies that states cannot be compelled to defend suits in federal courts.
States, as independent sovereigns with their own governments, enjoy sovereign immunity. No one can take legal action against a sovereign unless the sovereign gives permission to do so. Various Tort Claims acts allow those injured by states to sue the states to recover damages.
The US Constitution was amended in the 19th century to include the 14th Amendment as a response to slavery and its vestiges. Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery. Title VII of the Civil Rights Act of 1964 was enacted using Congress's powers under the 14th Amendment.
Therefore, what I presume the Court's ruling held is that Congress could not abrogate sovereign immunity of the states for copyright infringement because such infringement is not one of the vestiges of slavery. Also, I suspect that there is probably some discussion of states' immunity from suit in federal courts for copyright infringement. Since copyright infringement is a claim that can only be brought in federal court, you can see how a state could infringe at will by refusing to permit itself to be sued in federal court on a claim that is impossible to bring instate courts.
Nice one Ray ....
The company would get the exact same economic result (all other things being equal) if it charged an amount equal to a percentage of bandwidth costs.
What do you expect from a state that is the home of Jack Daniel's whiskey but distills and stores all that whiskey in Lynchburg, part of Moore County, a dry county?