Personally, I don't believe in "roundabout ways." I feel that everything should be above board. If the Senate feels a supermajority should be required, then institute a Senate rule for it and if need be, let the Supreme Court decide whether it is Constitutional. There are enough manipulations/machinations in political processes - I'm for eliminating those when- and where- ever possible.
This is getting surreal. I'm not sure which is more unrealistic - having a discussion on Slashdot re: judicial appointments or the fact that the discussion has been a very intelligent one.
I disagree. The filibuster PREVENTS the consent of the Senate from ever taking place in most cases. I'm all for Senators withholding consent for candidates that they feel are not qualified - but do it at a confirmation vote. Traditionally, confirmation votes required a simple majority. I don't think there has ever been a judicial interpretation of that portion of the Constitution that specifies whether a supermajority is permitted. However, I have not studied the matter and could be wrong about that.
Additionally, the filibuster of the past is gone so far as I understand. Gone are the days of Senators having to actually hold the floor to speak their minds for endless hours. Now, as I understand it, the filibuster is little more than someone raising their hand to say "filibuster" and delaying the process endlessly.
I'll try to keep this brief. The federal system is actually modeled on the system established by my home state - Massachusetts. At the federal level, judges, from the trial courts (Federal District Court) to the Courts of Appeals to the Supreme Court are appoined by the President with the advice and consent of the Senate. Slightly off topic - when you hear current senators arguing about "filibustering" judicial nominees and the need to preserve checks and balances of the system (i.e., the ability of the minority party - here, Democrats - to "check" the majority party - here, Republicans) - there IS NO SUCH CHECK IN THE CONSTITUTION. The Constitutional checks and balances are among the BRANCHES OF GOVERNMENT - the legislature checks the Executive and the Judicial checks both. The Constitution does not call for political parties. The role of the president is to appoint. The role of the Senate is to advise and consent to appointments. Every judicial candidate deserves to get a vote on his/her appointment. Filibustering breaks the system the Constitution put in place.
Massachusetts has a bi-partisan committee that recommends judicial candidates to the Governor who then appoints the judges. In both systems, judges are appointed for life during "good behavior" and their salaries can never be reduced. That is to keep the legislature from effectively starving a judge out of office by reducing his/her salary to a pittance. Judges can be removed from office by impeachment - and, unfortunately, it has happened in the past. Not often, but it has happened.
The system was created that way to insulate the judiciary from political forces. Judges are often put in the position of having to make unpopular decisions and must be free to apply the law to the facts at hand without worrying about losing their jobs because they made an unpopular decision. So I would say that even an initial election is a bad thing because it keeps political forces directly involved in judicial selections.
BTW - elections for judges are a relatively new thing. During the populist movement in the US during the 1920s, the suggestion took hold and states started changing their methods. Currently, I believe that 38 of the 50 states elect judges. I personally find it striking that the states that have elected judges seem to be the same states where people cry loudest for "tort reform."
As for how I would select judges, it depends. Some judges are great trial judges. Others are great appellate judges but would not be good trial judges. Others are both. So I would look first at the position to be filled, then at the list of candidates to pick a person who has the best qualifications for the job.
As for promoting judges, judges aren't usually "promoted" in the sense that if you do a good job in the trial court you move up to appeals and then to the Supreme Court. many judges are completely happy with the judicial position they hold. But if a judge wanted to move, I would consider that person along with all the other candidates and pick the best person for the job. Maybe the judge, maybe a new person. It depends.
Yes, I see it applying at all levels. In fact, in some cases (especially patent lawsuits), I would even advocate for professional jurors - people who have some legal training and with whom I can be assured that they will thoroughly weigh the evidence and apply the law as the judge instructed.
So much for being brief, but I hope I answered your questions.
Anagama (and the others in this thread are right - you are wrong. Civil trials have juries unless BOTH the plaintiff and defendant agree to have the case decided by a judge. Exception: Small Claims Court.
What if you do not beileve the action is illegal...
Then you should not be sending cease and desist letters. At a minimun, you should have a good faith belief that all the elements of a legal wrong are present in your case. Ideally, you should have advice of counsel or a legal opinion in hand prior to sending a C&D letter.
...come to find out that the court doesn't see in your favor
There is room in the law for true disputes and differences of opinion. That's why there are courts in the first place. However, you must have a good faith basis for bringing a claim.
Most courts in the US have adopted (in civil suits) rules that are based on the Rules of Civil Procedure from federal courts. Rule 11 requires litigants *and their lawyers* to have a good faith basis for bringing suit by performing a reasonable investigation into the facts *and* the law. A federal judge will not hesitate to sanction a lawyer for bringing a frivolous suit (frivolous = not well founded in facts or law / no good faith basis for making the claim). State court judges (especially those who are elected) often are not as strict.
Here's a civics lesson - want to screw up your judicial system? Elect your judges. Want judges who make good decisions based soundly on the law and are more impartial? Appoint them for life without possibility of salary reduction (can be fired for misconduct). If you don't believe me on that one, check out the many law review articles on the subject. We don't need tort reform in this country - we need JUDICIAL reform.
Since a cease and desist letter can be sent without an action being illegal, it should not be assumed that all cease and desist letters indicate an issue that is 100% illegal.
True - but it should have a good faith basis. If the recipient has a doubt about the legality of their acts, they should seek their own legal advice or reevaluate their conduct to see if it is worth risking legal action.
So how could you be willfully breaking the law?
Because although "ignorance of the law is no excuse" - that is, you can be held liable for beaking a law you did not know existed - once you have specific notice of the law in question, you have an obligation to ensure that your actions conform to the law's requirements.
...maybe the burden is then on the person who recieved the letter?
"Real" cease and desist letters place a potential defendant on notice that a potential plaintiff considers the actions of the potential defendant to be illegal or more specifically, a violation of the rights of the potential plaintiff and/or causing the potential plaintill harm. This has the legal effect of supplying notice to a potential defendant.
With some causes of action, if a potential plaintiff continues the conduct after having been explicitly notified, and if that action is deemed illegal, the defendant can be held to have acted willfully. In most cases, willful conduct results in greatly increased damages. In just about all cases, willful conduct looks very bad to a jury.
Almost. I'd be laughing ON MY WAY OUT of court - with a nice broad injunction (in MY favor) in my hand.
ALL backed down, because there is no legal case.
Unless you have a legal education and/or a law license you simply are not qualified to make that statement. You have no idea why any one of those companies may not have filed a suit (there are LOTS of reasons why - and most of them hae nothing to do with the strength of a legal claim or the likelihood of success). You have not shown me a single rational reason why I am worng. You just refuse to believe what I said, which is vastly different. Gee? A troll on Slashdot. Why am I not surprised?
By your own admission, you are quite happy with a provider which harbours spammers.
Not true, and actually my ISP has a zero tolerance policy. I hate spammers and that statement was meant merely to set up the next point.
I don't think that publishing an RBL is "public participation" but I could be wrong. It is an interesting argument.
What I would be upset about was if I lost connectivity (in or out) because my IP was in a published block. The block approach is overbroad - that was the long and short of my arguments.
Would be easy for a court to be confused by a good legal team into the argument that information published automatically by a computer program intended for automatic consumption by another computer program is not being 'published', or that without a human being reading the published RBL, there is nobody to be misled by a factual inaccuracy...
Perhaps. I've seen courts get confused by less technical arguments. However, I do firmly believe it is up to the opposing lawyer to make sure the issue is clearly presented so the court does not get confused.
Assuming that your above argument is successful for the defamation claim, there are 2 other theories I posited: tortious interference with contractual relations and unfair/deceptive business practices. Neither one is susceptible to your argument because an underpinning is that the bad actor knows or should know the way the system operates and he took some action within the system to cause a bad result.
There is a diffference between refraining to guaranteeing that services will be provided/available and actively preventing the use of those services. Although the provision you cited could in fact be read to support your point, I believe the traditional interpretation is first, to disclaim implied warranties, and second, to alert that things (such as power outages, equipment failures, etc.) happen that may interrupt service (and that if so, the ISP is not liable if your email worth $1Billion is unreceived because of an outage).
I had a fight with my ISP because it applied a spam filter to my account that bounced all email with the word "test" in the subject line. I told the people there that they had no right to filter my email. My agreement had almost exactly the same provision you quoted. The filter was removed within 30 minutes.
I would suggest blacklisting only IP addresses that cxan be traced to spammers. It seems to me that blacklisting an entire block is like using a shotgun when a BB gun will suffice.
I also think that it was poor judgment for the blacklisting to take effect at the beginning of a period during which no one was available to address the problem. It seems to me that a more powerful statement would have been made by having things take effect first thing Monday morning when all the business users are online. If the ISP is at fault for being non-responsive, how long do you think it would take for the ISP to ebgin to address the problem when every one if its customers in that net block are calling about connectivity problems? I would bet that MAPS would have had a call from the ISP well within an hour's time.
I don't think there is one "right" solution or that anything I proposed is right. I do know that what I understood from the post was, in my opinion, clearly wrong. I can't solve every problem but I can fight against wrongs when I spot them. If everyone fought against the wrongs they saw, there would be fewer wrongs and better solutions because more viewpoints would be taken into consideration.
Selfish and shortsighted? What was selfish and shortsighted was publishing a blacklist that interfered with operations of innocent parties - parties who were (I presume) paying to obtain services from an ISP. Spamming is wrong. Blacklisting innocents is wrong. Wrong + Wrong != Right.
Suing MAPs would be like suing the publisher of a restaurant review for saying the steak was tough and the service was surly.
Happens all the time. If the statement is false, it is actionable as defamation. If you don't believe me, do some research to find out how many times Consumer Reports gets sued each year for publishing negative reviews.
The actual blocking was happening at the recieving end of the emails our irate and indignant businessman was sending.
For liability, it does not matter where the blocking occurs - it is the publication (of the blacklist) that causes the harm. If the statement is true (this IP address is sending spam) then it is probably non-actionable. However, as I understood the scenario, the published statement was along the lines of "this BLOCK contains at least one IP address that sends spam so you should bounce anything from the BLOCK." That is overbroad and affects too many innocent users.
I can block anyone's email from my servers any time I want to, and there's nothing they can do about it, unless we have a contract to accept email from them.
Actually, I think that is too narrow. What about your customers who expect to be able to receive email from anyone/anywhere? You don't have to have a contract with the sender - you can (and usually do) have one with the recipient. As I understood it, the posted had a co-location agreement with the ISP whose addys were blocked. In that case, it seems to be that a contract is being interfered with by a 3rd party - wrongfully.
They're iconveniencing you because it's probably one of the few tools left that they have to push your ISP to stop inconveniencing the entire internet.
And use of that "tool" is plainly wrong, if not outright illegal. You want to blacklist IPs associated with spam problems? Go right ahead. You want to blacklist and entire IP block when you know or should know that there are innocent users of IP addresses in that block? Sounds like an unfair and deceptive business practice to me that in my humble legal opinion violates the Federal Trade Commission Act. You want to use the fact that you've blacklisted innocent parties as "leverage"? Now it definitely sounds like an FTCA violation and even begins to have antitrust overtones.
If my co-loc was taken down like this, and I couldn't get it resolved all weekend, I would have been in court at 9 AM Monday morning and in front of a judge by 9:30. I don't care if my ISP is harboring spammers, when it comes to interfering with MY services, I'd be arguing:
Tortious interference with contractual relations;
Unfair and deceptive business practices / unfair competition; and
Defamation (falsely accusing my domain / IP subblock of harboring spammers).
And that would be just the beginning. There are right and wrong ways of dealing with issues like these. This story, as posted, seems to me to be plainly wrong.
today we are proud to announce the immediate availability of Tiger Woods PGA TOUR® 2005 for Mac OS X 10.4 "Tiger." With Apple now bundling Tiger Woods PGA TOUR® 2005 free with every new Macintosh. . .
Apple would NEVER allow a product announcement like this - especially so close to the next WWDC. I will grant though that using the subjects' canned press release endings at the end was a nice touch.
Actually, what I think you failed to account for is that fact that even though Safari is the "default" browser for Mac OS X, many Mac users actually user Firefox or Mozilla as their primary browser.
Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?
The key point is that you don't know whether the IP belongs entirely to them or not because you have not IDENTIFIED the IP. Source code and GPL issues aside, at least in the US, if the company through its employee made improvements to software, those improvements are patentable if the improvements meet the statutory requirements: novel, non-obvious, and useful.
Seriously. Look at it this way: You may be able to do it yourself with/without commercial/open source software, but what are the risks?
You could make a mistake; and/or
The software could make a mistake - and the license will most likely leave you without recourse
Coding good software is hard enough - coding good software that ALSO correctly applies the Internal Revenue Code would drive anyone batty - ESPECIALLY given constant changes in tax laws and regulations at the federal, state, county, and municipal levels (yes, in some areas of the US we are subject to no fewer than four - count 'em - 4! -taxing authorities). You have to be a tax attorney AND a software engineer, or have them on staff, to ensure you get it right.
In the above cases where mistakes are made, YOU are liable not only for the amount of any deficiency in tax payments but also penalities and interest. Then you can factor in the headache of an audit which may not be limited to the current tax year (you DID save ALL those receipts for those "business" luncheons at Pinky's Pleasure Palace and All You Can Eat Buffet from 2001, right?). Those fees could exceed the base amount of tax you should have paid. What you are REALLY paying for is the paid preparer's signature on the returns. If there is a mistake, you pay only the amount of tax you owe - you are not liable for interest and penalties.
Sorry, but you are EXACTLY wrong. In the U.S. Patents (and applications for patents) are indeed property. The Gov't CAN take a patent through Eminent Domain so long as it pays just compensation as required by the Fifth Amendment to the US Constitution.
You are confusing the concept of finding a patent invalid or unenforceable (meaning you either have no property right because you did not meet all the requirements of the patent statute in the former case, or you will not be allowed to enforce your property right because you somehow misused that property in the latter case) with the concept of the Government taking that property for its own use. These are all basic legal concepts. However, the interesting issue is whether a STATE government can take a piece of property that was issued by the FEDERAL government.
Thanks for making me laugh so hard that coffee shot out my nose. Please warn me next time you use the words "Congress" and "prudent" in the same sentence.
as an engineer I really don't see a pragmatic reason to even have patents in today's society
Well, you're entitled to your opinion.
particularly in the case of software patents and process patents, the description is so thouroughally vague that it would be litterally impossible to create anything from the basis of the description in the patent
Patents like that are invalid. Plain and simple. A patent MUST enable a person of ordinary skill in the art to MAKE and USE the claimed invention. Blame Congress for not allowing the PTO to keep enough of its own revenues to properly staff itself and compensate enough qualified examiners.
If in the process of applying for a patent you had to prove that you had an actual working implementation or application of the patent description, this aspect of patent law would make the whole system seem more legitimate.
Perhaps, but the whole "written description" requirement is there to ensure that the inventor has actually created something. If you can describe it in enough detail so that someone of ordinary skill in the art can make and use the described invention, then why require an actual implementation? It simply places an extra burden on the inventor. If someone invents a new and improved wheel, and can show me engineering drawings for it that are sufficient for any competent wheelmaker to build one, why should I require the inventor to actually go build the wheel (especially if building the wheel will take years and cost millions of dollars)?
As for me being put out of business, you are right - I would refocus my practice on another area of law or go into another field - like software engineering.
Patent Law is a scam from my viewpoint.
As I said, you're entitled to your opinion. Some people may try to abuse the system (or actually succeed in doing so) to effect scams, but that is true of any system. I personally will have no part of it. I have no problem telling a client to go back to the drawing board and to let me know when they have finished inventing. I don't submit patent applications that are so vague as to be non-enabling and I don't draft claims that are so broad as to encompass everything that has been done in the field for the past 30 years. No patent is perfect. However, if the attorneys drafting the patents stay current in their technical fields, and if they are properly serving and advising their clients, and if the PTO examiners do their job, then the system works well. As with any system, if one part breaks down, the whole system breaks down.
Slashdot Mirror
This is getting surreal. I'm not sure which is more unrealistic - having a discussion on Slashdot re: judicial appointments or the fact that the discussion has been a very intelligent one.
Additionally, the filibuster of the past is gone so far as I understand. Gone are the days of Senators having to actually hold the floor to speak their minds for endless hours. Now, as I understand it, the filibuster is little more than someone raising their hand to say "filibuster" and delaying the process endlessly.
Massachusetts has a bi-partisan committee that recommends judicial candidates to the Governor who then appoints the judges. In both systems, judges are appointed for life during "good behavior" and their salaries can never be reduced. That is to keep the legislature from effectively starving a judge out of office by reducing his/her salary to a pittance. Judges can be removed from office by impeachment - and, unfortunately, it has happened in the past. Not often, but it has happened.
The system was created that way to insulate the judiciary from political forces. Judges are often put in the position of having to make unpopular decisions and must be free to apply the law to the facts at hand without worrying about losing their jobs because they made an unpopular decision. So I would say that even an initial election is a bad thing because it keeps political forces directly involved in judicial selections.
BTW - elections for judges are a relatively new thing. During the populist movement in the US during the 1920s, the suggestion took hold and states started changing their methods. Currently, I believe that 38 of the 50 states elect judges. I personally find it striking that the states that have elected judges seem to be the same states where people cry loudest for "tort reform."
As for how I would select judges, it depends. Some judges are great trial judges. Others are great appellate judges but would not be good trial judges. Others are both. So I would look first at the position to be filled, then at the list of candidates to pick a person who has the best qualifications for the job.
As for promoting judges, judges aren't usually "promoted" in the sense that if you do a good job in the trial court you move up to appeals and then to the Supreme Court. many judges are completely happy with the judicial position they hold. But if a judge wanted to move, I would consider that person along with all the other candidates and pick the best person for the job. Maybe the judge, maybe a new person. It depends.
Yes, I see it applying at all levels. In fact, in some cases (especially patent lawsuits), I would even advocate for professional jurors - people who have some legal training and with whom I can be assured that they will thoroughly weigh the evidence and apply the law as the judge instructed.
So much for being brief, but I hope I answered your questions.
Anagama (and the others in this thread are right - you are wrong. Civil trials have juries unless BOTH the plaintiff and defendant agree to have the case decided by a judge. Exception: Small Claims Court.
Then you should not be sending cease and desist letters. At a minimun, you should have a good faith belief that all the elements of a legal wrong are present in your case. Ideally, you should have advice of counsel or a legal opinion in hand prior to sending a C&D letter.
There is room in the law for true disputes and differences of opinion. That's why there are courts in the first place. However, you must have a good faith basis for bringing a claim.
Most courts in the US have adopted (in civil suits) rules that are based on the Rules of Civil Procedure from federal courts. Rule 11 requires litigants *and their lawyers* to have a good faith basis for bringing suit by performing a reasonable investigation into the facts *and* the law. A federal judge will not hesitate to sanction a lawyer for bringing a frivolous suit (frivolous = not well founded in facts or law / no good faith basis for making the claim). State court judges (especially those who are elected) often are not as strict.
Here's a civics lesson - want to screw up your judicial system? Elect your judges. Want judges who make good decisions based soundly on the law and are more impartial? Appoint them for life without possibility of salary reduction (can be fired for misconduct). If you don't believe me on that one, check out the many law review articles on the subject. We don't need tort reform in this country - we need JUDICIAL reform.
Since a cease and desist letter can be sent without an action being illegal, it should not be assumed that all cease and desist letters indicate an issue that is 100% illegal.
True - but it should have a good faith basis. If the recipient has a doubt about the legality of their acts, they should seek their own legal advice or reevaluate their conduct to see if it is worth risking legal action.
So how could you be willfully breaking the law?
Because although "ignorance of the law is no excuse" - that is, you can be held liable for beaking a law you did not know existed - once you have specific notice of the law in question, you have an obligation to ensure that your actions conform to the law's requirements.
In many cases, exactly right.
With some causes of action, if a potential plaintiff continues the conduct after having been explicitly notified, and if that action is deemed illegal, the defendant can be held to have acted willfully. In most cases, willful conduct results in greatly increased damages. In just about all cases, willful conduct looks very bad to a jury.
Sorry, it had to be said.
ALL backed down, because there is no legal case.
Unless you have a legal education and/or a law license you simply are not qualified to make that statement. You have no idea why any one of those companies may not have filed a suit (there are LOTS of reasons why - and most of them hae nothing to do with the strength of a legal claim or the likelihood of success). You have not shown me a single rational reason why I am worng. You just refuse to believe what I said, which is vastly different. Gee? A troll on Slashdot. Why am I not surprised?
Your "productive" side effects are the same ones I see as illegal. We may have to simply agree to disagree in that point.
As is a thermonuclear bomb. As I said in another post in this thread someplace, (and to paraphrase myself because I like this tweak better):
I don't believe in using a shotgun when a flyswatter will do.
Go back and read my post. A few times. When you get it, repost some criticisms that are on point.
Not true, and actually my ISP has a zero tolerance policy. I hate spammers and that statement was meant merely to set up the next point.
I don't think that publishing an RBL is "public participation" but I could be wrong. It is an interesting argument.
What I would be upset about was if I lost connectivity (in or out) because my IP was in a published block. The block approach is overbroad - that was the long and short of my arguments.
Perhaps. I've seen courts get confused by less technical arguments. However, I do firmly believe it is up to the opposing lawyer to make sure the issue is clearly presented so the court does not get confused.
Assuming that your above argument is successful for the defamation claim, there are 2 other theories I posited: tortious interference with contractual relations and unfair/deceptive business practices. Neither one is susceptible to your argument because an underpinning is that the bad actor knows or should know the way the system operates and he took some action within the system to cause a bad result.
I had a fight with my ISP because it applied a spam filter to my account that bounced all email with the word "test" in the subject line. I told the people there that they had no right to filter my email. My agreement had almost exactly the same provision you quoted. The filter was removed within 30 minutes.
I also think that it was poor judgment for the blacklisting to take effect at the beginning of a period during which no one was available to address the problem. It seems to me that a more powerful statement would have been made by having things take effect first thing Monday morning when all the business users are online. If the ISP is at fault for being non-responsive, how long do you think it would take for the ISP to ebgin to address the problem when every one if its customers in that net block are calling about connectivity problems? I would bet that MAPS would have had a call from the ISP well within an hour's time.
I don't think there is one "right" solution or that anything I proposed is right. I do know that what I understood from the post was, in my opinion, clearly wrong. I can't solve every problem but I can fight against wrongs when I spot them. If everyone fought against the wrongs they saw, there would be fewer wrongs and better solutions because more viewpoints would be taken into consideration.
Selfish and shortsighted? What was selfish and shortsighted was publishing a blacklist that interfered with operations of innocent parties - parties who were (I presume) paying to obtain services from an ISP. Spamming is wrong. Blacklisting innocents is wrong. Wrong + Wrong != Right.
Happens all the time. If the statement is false, it is actionable as defamation. If you don't believe me, do some research to find out how many times Consumer Reports gets sued each year for publishing negative reviews.
The actual blocking was happening at the recieving end of the emails our irate and indignant businessman was sending.
For liability, it does not matter where the blocking occurs - it is the publication (of the blacklist) that causes the harm. If the statement is true (this IP address is sending spam) then it is probably non-actionable. However, as I understood the scenario, the published statement was along the lines of "this BLOCK contains at least one IP address that sends spam so you should bounce anything from the BLOCK." That is overbroad and affects too many innocent users.
I can block anyone's email from my servers any time I want to, and there's nothing they can do about it, unless we have a contract to accept email from them.
Actually, I think that is too narrow. What about your customers who expect to be able to receive email from anyone/anywhere? You don't have to have a contract with the sender - you can (and usually do) have one with the recipient. As I understood it, the posted had a co-location agreement with the ISP whose addys were blocked. In that case, it seems to be that a contract is being interfered with by a 3rd party - wrongfully.
And use of that "tool" is plainly wrong, if not outright illegal. You want to blacklist IPs associated with spam problems? Go right ahead. You want to blacklist and entire IP block when you know or should know that there are innocent users of IP addresses in that block? Sounds like an unfair and deceptive business practice to me that in my humble legal opinion violates the Federal Trade Commission Act. You want to use the fact that you've blacklisted innocent parties as "leverage"? Now it definitely sounds like an FTCA violation and even begins to have antitrust overtones.
If my co-loc was taken down like this, and I couldn't get it resolved all weekend, I would have been in court at 9 AM Monday morning and in front of a judge by 9:30. I don't care if my ISP is harboring spammers, when it comes to interfering with MY services, I'd be arguing:
- Tortious interference with contractual relations;
- Unfair and deceptive business practices / unfair competition; and
- Defamation (falsely accusing my domain / IP subblock of harboring spammers).
And that would be just the beginning. There are right and wrong ways of dealing with issues like these. This story, as posted, seems to me to be plainly wrong.Sayeth the author:
today we are proud to announce the immediate availability of Tiger Woods PGA TOUR® 2005 for Mac OS X 10.4 "Tiger." With Apple now bundling Tiger Woods PGA TOUR® 2005 free with every new Macintosh. . .
Apple would NEVER allow a product announcement like this - especially so close to the next WWDC. I will grant though that using the subjects' canned press release endings at the end was a nice touch.
Lame Lame Lame Lame Lame. This is the WORST attempt at humor I've seen in a LONG time.
Actually, what I think you failed to account for is that fact that even though Safari is the "default" browser for Mac OS X, many Mac users actually user Firefox or Mozilla as their primary browser.
The key point is that you don't know whether the IP belongs entirely to them or not because you have not IDENTIFIED the IP. Source code and GPL issues aside, at least in the US, if the company through its employee made improvements to software, those improvements are patentable if the improvements meet the statutory requirements: novel, non-obvious, and useful.
Coding good software is hard enough - coding good software that ALSO correctly applies the Internal Revenue Code would drive anyone batty - ESPECIALLY given constant changes in tax laws and regulations at the federal, state, county, and municipal levels (yes, in some areas of the US we are subject to no fewer than four - count 'em - 4! -taxing authorities). You have to be a tax attorney AND a software engineer, or have them on staff, to ensure you get it right.
In the above cases where mistakes are made, YOU are liable not only for the amount of any deficiency in tax payments but also penalities and interest. Then you can factor in the headache of an audit which may not be limited to the current tax year (you DID save ALL those receipts for those "business" luncheons at Pinky's Pleasure Palace and All You Can Eat Buffet from 2001, right?). Those fees could exceed the base amount of tax you should have paid. What you are REALLY paying for is the paid preparer's signature on the returns. If there is a mistake, you pay only the amount of tax you owe - you are not liable for interest and penalties.
You are confusing the concept of finding a patent invalid or unenforceable (meaning you either have no property right because you did not meet all the requirements of the patent statute in the former case, or you will not be allowed to enforce your property right because you somehow misused that property in the latter case) with the concept of the Government taking that property for its own use. These are all basic legal concepts. However, the interesting issue is whether a STATE government can take a piece of property that was issued by the FEDERAL government.
Thanks for making me laugh so hard that coffee shot out my nose. Please warn me next time you use the words "Congress" and "prudent" in the same sentence.
Well, you're entitled to your opinion.
particularly in the case of software patents and process patents, the description is so thouroughally vague that it would be litterally impossible to create anything from the basis of the description in the patent
Patents like that are invalid. Plain and simple. A patent MUST enable a person of ordinary skill in the art to MAKE and USE the claimed invention. Blame Congress for not allowing the PTO to keep enough of its own revenues to properly staff itself and compensate enough qualified examiners.
If in the process of applying for a patent you had to prove that you had an actual working implementation or application of the patent description, this aspect of patent law would make the whole system seem more legitimate.
Perhaps, but the whole "written description" requirement is there to ensure that the inventor has actually created something. If you can describe it in enough detail so that someone of ordinary skill in the art can make and use the described invention, then why require an actual implementation? It simply places an extra burden on the inventor. If someone invents a new and improved wheel, and can show me engineering drawings for it that are sufficient for any competent wheelmaker to build one, why should I require the inventor to actually go build the wheel (especially if building the wheel will take years and cost millions of dollars)?
As for me being put out of business, you are right - I would refocus my practice on another area of law or go into another field - like software engineering.
Patent Law is a scam from my viewpoint.
As I said, you're entitled to your opinion. Some people may try to abuse the system (or actually succeed in doing so) to effect scams, but that is true of any system. I personally will have no part of it. I have no problem telling a client to go back to the drawing board and to let me know when they have finished inventing. I don't submit patent applications that are so vague as to be non-enabling and I don't draft claims that are so broad as to encompass everything that has been done in the field for the past 30 years. No patent is perfect. However, if the attorneys drafting the patents stay current in their technical fields, and if they are properly serving and advising their clients, and if the PTO examiners do their job, then the system works well. As with any system, if one part breaks down, the whole system breaks down.