Per Adams, as soon as we figure out a theory of the universe, and the universe has free will, it will immediately becomes infinitely more complicated and blow our theory out of the water.
Per Pullman, some church somewhere will dedicate itself to destroying the "free will" in particles, leading to an epic battle between God, man, and the movie industry.
Per CmdrTaco, some commenter somewhere must have accidentally angered a meson, leading it to direct a microscopic black hole to reside in/.'s servers, explaining where all the thoughtful comments disappear to...
These laws are probably unconstitutional. I would bet that these state telecommunications laws purport to regulate international TCP traffic in a manner that would violate the "dormant commerce clause" in the same way that states are limited in the way they can regulate interstate road traffic. We'll just have to wait and see what happens, though.
I would argue that in the eighties and early nineties, the Federal Circuit did a good job by normalizing the forum shopping among the numbered circuits.
In recent years, though, the differences between individual judges have become tremendous. Now, you have inconsistent lines of cases (on claim construction especially, not to mention equivalents and 112 issues) where the results are frequently due to the panel you get rather than the underlying substantive law. This is as bad, or worse, than circuit splits.
While en banc hearings sometimes work, the small subject matter area of the Federal Circuit tends to increase the rate of change of the law, creating tremendous economic and legal uncertainty (Festo), or pushing itself outside the scope of standard federal practice (Vornado, Christianson, Intel v. Intergraph).
The end result of the Federal Circuit, after twenty years, is really: (1) severe judicial inefficiency, from de novo claim construction after summary judgment or sometimes after full trials on the merits; (2) a dislike for established antitrust law that borders on a per se rule of antitrust non-liability (except for inequitable conduct when shown by a smoking gun might sometimes be enough, but then again look at this decision); and, (3) frequent failure to follow the rules of comity, like establishing an ad hoc federal common law of contracts (Hallmark) despite Erie, or ignoring the well pleaded complaint rule (as shown in Vornodo).
The court is good in that it has substantial technical expertise not present in other circuit courts (except for possibly its poor understanding of economics compared with the seventh circuit, and its odd takings jurisprudence), and the judges are all fair, honest, and knowledgeable, although their individual opinions frequently differ.
The question I raise, though, is whether the Fed Cir has now outlived its usefulness and now poses the threat (from frequent large changes in law) that it was created to stop.
A modest proposal might be, for example, transferring the Federal Circuit from an appellate level court to a specialized district court apparatus that hears patent cases in each district, with appeals (for clear error) to the numbered circuits. With a large body of fed cir law, this would ease the tremendous strain of cases in some district courts, comply with the lifetime appointments clause, and solve two problems in one stroke.
The decision was by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. It is a special federal appeals court that hears patent cases and special federal issues such as takings, veterans affairs, and federal contract disputes.
The outcome is surprising on its facts, as the documentation shows that Infineon had actual intent to deceive other members of the memory industry.
However, the Federal Circuit now has a twenty year history of ignoring the law and creating its own jurisprudence in favor of strong patent rights. In the process, economic efficiency, fairness, and consumer protection have been lost.
Although the court is limited to patents, it frequently rewrites antitrust law to exclude liability for patent misuse. It frequently revises claim constructions on an ad-hoc, nonsensical basis that is impossible to predict, often ignoring the patent itself, and almost always in favor of the patent holder.
It has made invalidity harder to prove, requiring printed documentation of all elements of a claimed invention, and has limited obviousness to a very narrow set of circumstances where documents actually state that a patented combination is in the prior art. This is somewhat of an oversimplification, but it is unfortunately almnost accurate.
It has expanded the realm of patents to include business methods (harming free enterprise by making the mere right to enter an industry subject to patent rights), genomes (which, while they already exist, are always useful for growing hair--by using this claim they can cover all uses for the genome), and algorithms.
It frequently ignores federal procedural law, and has been reversed a few times by the supreme court on these grounds in recent years.
While many on slashdot frequently cite the "Microsoft Patents 1 and 0" story from the Onion, the Federal Circuit has actually gone that far in real life. In a patent case brought by Excel Corp., the Federal Circuit affirmed the validity of a patent over a one bit flag used to determine whether two parties on a phone were using the same phone provider.
Yes, Excel has a patent on a one bit flag (ones and zeros) when applied to phone networks!
There is much more to say about this, but that is for another day.
Let me tell you the story of a law named SHERMAN, it busted up the oil trusts and kept big business squirmin', until one day Bork decided big was good, and they stuffed all the courts with lots of right wing hoods.
Judges, that is.
Then they decided SHERMAN didn't mean just what it said, Instead it only barred big mergers when they didn't cut overhead, Suddenly the world was in for such a big consolidation, Everything was run by a aolnewssonymicrosoftviacomgetimewarnerturner creation.
Oligopolies, that is.
Now these few big companies control all the news we see, And the song this post parodies won't be free 'till 2053, And AOL's so big it files law briefs against itself, And their all so reliant on government that any criticism sits on the shelf.
Self-censorhip that is.
So good old Michael Powell is having hearings on these facts, And the music companies are working together online to sell some tracks, But they won't release their catalogs they say due to piracy, Even though all the songs are on Kazaa already now for free.
Loss of vertical price controls, that is. RIAA losing power. Big trouble.
So they passed a few NET act laws that put 25 million americans elgible for federal slammer, With three year manditory minimums for swapping those songs by MC hammer, And with as many consumers labelled criminals as voted for Al Gore, Now we know how Bush will lock up the vote in 2004.
Blackmail that is. Ashcroft to a T. And ya thought florida was bad?
So remember folks next time you fire up Gnutella, The RIAA, the FEDS, and AOL CNN will treat ya like a goodfella, And when the public balks at monopolies and infinte copyright, They'll just lock up anyone who dares to put up a fight.
Take a look at the Young v. New Haven Advocate case that just came out of the U.S. Court of Appeals for the 4th Circuit.
In that case, a connecticut newspaper, aimed at a connecticut audience, posted an article purportedly libeling the warden of a virginia prison. But the court found that the existence of a web site was not enough -- the web site must somehow be directed towards the forum that wants jurisdiction over the defendant.
As to the actual conduct, the newspaper obviously knew that the article discussed the virginia warden. But the article does not, in itself, confer jurisdiction.
The defendant must somehow have enough contact with Virginia to permit jurisdiction: the test is "minimum contacts" sufficient to "comport with traditional notions of fair play and substantial justice."
To find these contacts, the court looked to the web site (the source of the contact) - not the article (the source of the lawsuit). The web site was directed at a connecticut audience, only advertised to a connecticut audience, and the newspaper had no contacts at all with virginia. Thus, the newspaper web site has no minimum contacts with virginia with which to support personal jurisdiction over the defendant newspaper for posting the article.
If the newspaper had been a physical paper (it is, in fact also a physical paper) then the same analysis would be applied. The article would not be enough, unless the newspaper undertook affirmative acts (such as having paying customers in the forum state) to take advantage of the forum.
This has two practical effects. First, it doesn't prevent someone from suing a defendant--it just requires them to sue where they actually conduct their activities.
Second, this result actually means that internet publications will be treated the same as print publications, at least within the united states.
This obviously creates a problem, especially in the speech areas, with varying European and British laws. Americans certainly do not want to be subject to British libel laws unless they direct something to Britain, not just for posting things for an american audience.
So take the Gutnick case from AU. Under the 4th Circuit test, if the purportedly libelous statement was posted in the East Asian edition of the WSJ (which includes Australia) then it would (in this hypothetical) be more likely to meet the american minimum contacts standard. This is simply because the speech was directed at the forum state, and thus the author should expect to be responsible for posting targeted at that forum.
The opposite result would be rather dangerous: Imagine Slashdot, and any slashdot poster, subject to Saudi Arabian censorship laws. Or more deviously, American discussions of foreign policy and intelligence on web sites such as crytome.org subjected to the official secrets act. Imagine the effect on the NY Times if William Safire knew that the NYT was now subject to libel suits in Singapore for postings directed at the United States complaining about Singapore's government. Such a stifiling of commerce, speech and internet development wouldn't solve anyone's interest.
Now, about your hypotheticals: (1) The Fourth Circuit test actually applies the same minimum contacts analysis to both physical and internet speech. (2) If, as you suggest, a translation into a hypothetical country's unique language is included on a web site, that would be a strong indicator that the newspaper intended to target that forum, and would support (but wouldn't be definitive) of minimum contacts. For example, the LA Times serves a city with a large hispanic population. If it were to publish articles in spanish on its web site, that would not mean the LA Times was focusing its web site at Spain, Argentina or even Mexico.
First, the CA case is a trade secret case, not a DMCA case. But it will be lurking in the background.
Second, Justice O'Connor is responsible for granting the stay since the 9th circuit is her "territory" for these matters.
The next step is to see whether four justices want to vote for a grant of certiori to hear the issue of whether the due process clause of the Fourteenth Amendment permits this type of "universal jurisdiction."
As to the merits, the law is increasingly on Matt's side. For example, the Fourth Circuit (VA, MD, NC, SC...) recently determined that merely putting information (copyright infringement and libel cases) on the internet does not subject a person to jurisdiction. It requires some real purposeful availment of the forum (i.e. conduct directed towards CA). Pavlovich never availed himself of California law or directed his activities at California, thus under the majority of circuit law, he is not subject to personal jurisdiction in California.
The alternate view, from Australia and a few court decisions pertaining almost entirely to bad-guy cybersquatters, finds universal jurisdiction comporting with due process requirements from mere posting on the internet. Under this theory, you purposefully avail yourself of every forum by merely posting on the internet and assume you can be hauled into court anywhere.
While this may fly in Australia, due process under US law would have to be stretched beyond its limit to allow such jursidiction, and, as more and more of life becomes electronic, it would render the limits on personal jurisdiction in states entirely meaningless. Add to that the fact that the supreme court seems particularly unimpressed by foreign decisions.
The biggest problem for the DVDCCA is that this personal jurisdiction analysis is directed at the defendant, Matt Pavlovich. No matter how great DVDCCA's alleged harm, it is the Defendants' conduct that matters, the plaintiff's conduct is not relevant. He didn't take the information from CA but from third parties, and only has liability if he "should have known" it was a trade secret, had some sort of relationship with the DVDCCA, or actually misappropriated it himself.
Only the "should have known" theory applies here -- and it seems notoriously difficult for the DVDCCA to prove that this amounts to direct conduct aimed at CA.
So, in a nutshell, even if certiori were granted, it seems unlikely that the decision would be reversed, but rather it would be a good opportunity to settle the question that there is no "universal jurisdiction" in US courts over conduct on the internet unless it is aimed at or takes place in a particular state.
Anything in this comment constituting legal advice is false... Anything in this comment constituting a disclaimer of legal advice is falser.
Unless MS comes up with some good arguments, I think there is a decent case that Windows is indeed generic.
If Windows is ruled a "generic" mark for a windowed operating system, then it is irrelevant that there is secondary meaning in the term "Windows" to the general public -- the trademark is likely invalid. period.
If Windows is ruled as merely "descriptive" of a windowed operating system, then secondary meaning could be shown pretty easily by MS (i.e. when I say "Windows" you think of MS Windows, unless you are in the construction industry) and the trademark is more likely to be ruled valid.
So, this may turn out as a fight over whether windows is "generic" or just "merely descriptive." Given the preexistence of XWindows, Lindows has a decent case. But many windowed operating systems existed that didn't need to use the word "windows": GEOS, GEM, MacOS, Xerox Star, etc. Points for MS. However, and here's the kicker... go into any of these operating systems, and look at the programming guides, and what to they call a program "window?" A Window! (Yes there are widgets too but they are not a window).
Anything construed in this comment as legal advice or a legal disclaimer is false.
The universe (which others call the Library) is composed of an indefinite and perhaps infinite number of hexagonal galleries, with vast air shafts between, surrounded by very low railings. Looks like he wasn't too far off...
...The Library is a sphere whose exact center is any one of its hexagons and whose circumference is inaccessible.
Especially after installing service packs, XP is as lethargic as a democratic candidate on Nov. 6.
Now I have OSX running at 800mhz. It seems mildly slower compared to other Unices (this is without tweeking, though). Having never run PPC linux, though, I can't give a fair comparison.
Which raises the question, why am I even posting this?
The poster of this article is simply legally incorrect.
Fair use is not a mere "statutory" right.
The fair use provisions of the 1976 copyright law (as expressed in 17 usc 107 and so on) are generally seen as co-extensive with the right to free speech protected under the 1st amendment according to many cases since the law went into effect.
Section 107 fair use was meant to create a statutory version of the judically enforced fair use doctrine that had previously resolved the inherent conflict between the constitutional free speech right and the constitutional copyright clause.
Congress cannot take away -all- fair use rights through legislation, and laws such as the DMCA are forcing the courts to deal with the true limits of the copyright power (as in Eldred and Corley) for the first time. Judge Newman in the 2d Circuit Corely decision may have carefully avoided the issue, but the recently created "dogma" that there are no constitutional restraints on the copyright power (as bolstered by Disney, AOLTimeWarnerTurnerNetscape, and the D.C. Circuit) will not last.
If the courts do not enforce first amendment fair use rights, then the public will demand a political, legislative solution. After all, more Americans voted for Napster than voted for either Bush or Gore.
do you think it is possible to form a litigation and lobbying plan, like the step-wise civil rights cases of forty years ago, to redeem fair use, the first amendment and establish a bulwark of digital rights? haphazard cases like napster, skylarov, corley (and even golan) aren't enough. don't we need a digital rosa parks?
>Next thing you know, I'll be needed to license my palm pilot.
Actually, you may soon need a license for your palm pilot. There is a patent case where Xerox claims that palm's graffiti language infringes its patent. If Xerox wins, you will have to pay royalties on any new palm/handspring/sony you buy.
Now, to the point: if a private party can make you license a palm pilot, the government can probably try. Do you use your palm in interstate commerce?
Better be careful. AOL may consider any unauthorized use of their servers as computer trespass - even if you are an AOL subscriber. (They can say via license "you are only authorized to use our servers using OUR software.")
Thus, this information is aiding and abetting computer trespass. Slashdot and the authors may be liable retroactively under the new terrorism legislation (depending on the scope of the hacking provisions) with mandatory life sentences for giving aid to terrorists.
By advocating an open AOL client for linux, given AOL's licensing terms, you are trying to change intellectual property policy, thus are "trying to change government policy through computer trespass" under the PATRIOT act, USA act, or whatever they are calling it now.
While this scenario seems crazy, keep in mind that this is literally within the scope of (some versions of) the terrorism legislation.
Many of us are waiting to here from the 2nd circuit on the constitutionality of the DMCA anti-circumvention measures.
Assuming these measures are ultimately found unconstitutional (and your opinion on this would be nice), do you think the industry will accept revised legislation including fair use exceptions, or will they seek a constitutional amendment to conform the US to WIPO rules?
The CDDB data format and the CDDB servers are designed to be open, and are now used by many other client application software requiring CD information. The list of CDDB-capable applications is growing rapidly and a current list of these applications is available via the CDDB web
site:
http://www.cddb.com/
The xmcd package and the CDDB server software are both released as free software under the GNU General Public License, and we would like to foster the concept of free software. Moreover, the public CDDB servers all run on sites that have graciously volunteered their disk space, computing and network resources, not to mention occasional maintenance and support chores, all for free.
Given this, we provide full assistance to freeware authors who desire to incorporate the use of CDDB into their software. In addition, shareware programs are also supported, because it is our understanding that shareware authors, like freeware authors, usually develop their software because they enjoy doing so, and they rarely make significant enough money from their shareware programs. Users of CDDB-capable freeware and shareware applicationa may use the public CDDB servers for free.
Commercial uses of CDDB data and/or servers are subject to negotiations with the CDDB Project. Write to us at cddb-support@moonsoft.com for information.
The xmcd and CDDB server software are both released to the public with full source code. You may inspect the source to see how it works. but please be aware that the source code to both of these packages are released under the terms of the GNU General Public License. The full text of the GNU GPL is in the COPYING file in each of these packages.
all the "evil corporation" has to do is just file their patent within one year after your publication.
They can still file it until a year after you publish it, so long as they can show the patent office they "invented it" before you did . ..using their internal documents and lawyers.
Unfortunately, if the Rambus patent portfolio is valid, they can do whatever they want with "immunity" to US antitrut laws.
About a year ago, the US Federal Circuit (the US court with jurisdiction over patent appeals, answerable only to the US Supreme Court) decided that enforcement of a valid patent can never be an antitrust violation.
DMCA? Yes and no. If.doc format has -any- feature which purports to give copy protection to whatever file it is holding, then (at least according to what the MPAA is saying in the DeCSS case) the DMCA anti-circumvention provisions apply.
Similarly, they could XOR-obfuscate the released code, and any attempt at REing the.doc format would be considered a violation of the DMCA.
Black holes come from the Australian Outback? Well, at least they're exporting something these days. Too bad the market for black holes, well, really sucks.
Be careful in Perth. Its near the Schwartzchild radius.
Slashdot Mirror
Per Adams, as soon as we figure out a theory of the universe, and the universe has free will, it will immediately becomes infinitely more complicated and blow our theory out of the water.
Per Pullman, some church somewhere will dedicate itself to destroying the "free will" in particles, leading to an epic battle between God, man, and the movie industry.
Per CmdrTaco, some commenter somewhere must have accidentally angered a meson, leading it to direct a microscopic black hole to reside in /.'s servers, explaining where all the thoughtful comments disappear to...
While Grokster ain't liable as a contributory copyright infringer, the case wasn't dismissed. Other claims still loom.
Nonetheless, it is a good ruling and shows some of the C.D. Cal judges like Judge Wilson, much like Judge Patel in N.D. Cal, really "get it."
These laws are probably unconstitutional. I would bet that these state telecommunications laws purport to regulate international TCP traffic in a manner that would violate the "dormant commerce clause" in the same way that states are limited in the way they can regulate interstate road traffic. We'll just have to wait and see what happens, though.
Sorry I obviously meant Rambus, not Infineon. I didn't exactly have alot of time to write my post.
Thus, I think "dumbass" would be more appropriate.
Judge Rader's opinion, in a nutshell, is that because the organization's rules were ambiguous then Rambus' conduct can't be said to be fraud.
Unfortunately, Rambus' internal smoking gun documents show that they knew what the rules meant, and intentionally tried to flout them.
This decision, which reversed a jury verdict on the basis of lack of evidence really is "beyond the pale."
I would argue that in the eighties and early nineties, the Federal Circuit did a good job by normalizing the forum shopping among the numbered circuits.
In recent years, though, the differences between individual judges have become tremendous. Now, you have inconsistent lines of cases (on claim construction especially, not to mention equivalents and 112 issues) where the results are frequently due to the panel you get rather than the underlying substantive law. This is as bad, or worse, than circuit splits.
While en banc hearings sometimes work, the small subject matter area of the Federal Circuit tends to increase the rate of change of the law, creating tremendous economic and legal uncertainty (Festo), or pushing itself outside the scope of standard federal practice (Vornado, Christianson, Intel v. Intergraph).
The end result of the Federal Circuit, after twenty years, is really:
(1) severe judicial inefficiency, from de novo claim construction after summary judgment or sometimes after full trials on the merits;
(2) a dislike for established antitrust law that borders on a per se rule of antitrust non-liability (except for inequitable conduct when shown by a smoking gun might sometimes be enough, but then again look at this decision); and,
(3) frequent failure to follow the rules of comity, like establishing an ad hoc federal common law of contracts (Hallmark) despite Erie, or ignoring the well pleaded complaint rule (as shown in Vornodo).
The court is good in that it has substantial technical expertise not present in other circuit courts (except for possibly its poor understanding of economics compared with the seventh circuit, and its odd takings jurisprudence), and the judges are all fair, honest, and knowledgeable, although their individual opinions frequently differ.
The question I raise, though, is whether the Fed Cir has now outlived its usefulness and now poses the threat (from frequent large changes in law) that it was created to stop.
A modest proposal might be, for example, transferring the Federal Circuit from an appellate level court to a specialized district court apparatus that hears patent cases in each district, with appeals (for clear error) to the numbered circuits. With a large body of fed cir law, this would ease the tremendous strain of cases in some district courts, comply with the lifetime appointments clause, and solve two problems in one stroke.
The decision was by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. It is a special federal appeals court that hears patent cases and special federal issues such as takings, veterans affairs, and federal contract disputes.
The outcome is surprising on its facts, as the documentation shows that Infineon had actual intent to deceive other members of the memory industry.
However, the Federal Circuit now has a twenty year history of ignoring the law and creating its own jurisprudence in favor of strong patent rights. In the process, economic efficiency, fairness, and consumer protection have been lost.
Although the court is limited to patents, it frequently rewrites antitrust law to exclude liability for patent misuse. It frequently revises claim constructions on an ad-hoc, nonsensical basis that is impossible to predict, often ignoring the patent itself, and almost always in favor of the patent holder.
It has made invalidity harder to prove, requiring printed documentation of all elements of a claimed invention, and has limited obviousness to a very narrow set of circumstances where documents actually state that a patented combination is in the prior art. This is somewhat of an oversimplification, but it is unfortunately almnost accurate.
It has expanded the realm of patents to include business methods (harming free enterprise by making the mere right to enter an industry subject to patent rights), genomes (which, while they already exist, are always useful for growing hair--by using this claim they can cover all uses for the genome), and algorithms.
It frequently ignores federal procedural law, and has been reversed a few times by the supreme court on these grounds in recent years.
While many on slashdot frequently cite the "Microsoft Patents 1 and 0" story from the Onion, the Federal Circuit has actually gone that far in real life. In a patent case brought by Excel Corp., the Federal Circuit affirmed the validity of a patent over a one bit flag used to determine whether two parties on a phone were using the same phone provider.
Yes, Excel has a patent on a one bit flag (ones and zeros) when applied to phone networks!
There is much more to say about this, but that is for another day.
Let me tell you the story of a law named SHERMAN,
it busted up the oil trusts and kept big business squirmin',
until one day Bork decided big was good,
and they stuffed all the courts with lots of right wing hoods.
Judges, that is.
Then they decided SHERMAN didn't mean just what it said,
Instead it only barred big mergers when they didn't cut overhead,
Suddenly the world was in for such a big consolidation,
Everything was run by a aolnewssonymicrosoftviacomgetimewarnerturner creation.
Oligopolies, that is.
Now these few big companies control all the news we see,
And the song this post parodies won't be free 'till 2053,
And AOL's so big it files law briefs against itself,
And their all so reliant on government that any criticism sits on the shelf.
Self-censorhip that is.
So good old Michael Powell is having hearings on these facts,
And the music companies are working together online to sell some tracks,
But they won't release their catalogs they say due to piracy,
Even though all the songs are on Kazaa already now for free.
Loss of vertical price controls, that is. RIAA losing power. Big trouble.
So they passed a few NET act laws that put 25 million americans elgible for federal slammer,
With three year manditory minimums for swapping those songs by MC hammer,
And with as many consumers labelled criminals as voted for Al Gore,
Now we know how Bush will lock up the vote in 2004.
Blackmail that is. Ashcroft to a T. And ya thought florida was bad?
So remember folks next time you fire up Gnutella,
The RIAA, the FEDS, and AOL CNN will treat ya like a goodfella,
And when the public balks at monopolies and infinte copyright,
They'll just lock up anyone who dares to put up a fight.
Its the INTERNET RIAABILLIES!
This ring of stars is the result of a collision, as can be easily proven by observation of Bugs Bunny upon contact with an anvil.
As for the missing mass, that's due to Elmer FUD.
Take a look at the Young v. New Haven Advocate case that just came out of the U.S. Court of Appeals for the 4th Circuit.
In that case, a connecticut newspaper, aimed at a connecticut audience, posted an article purportedly libeling the warden of a virginia prison. But the court found that the existence of a web site was not enough -- the web site must somehow be directed towards the forum that wants jurisdiction over the defendant.
As to the actual conduct, the newspaper obviously knew that the article discussed the virginia warden. But the article does not, in itself, confer jurisdiction.
The defendant must somehow have enough contact with Virginia to permit jurisdiction: the test is "minimum contacts" sufficient to "comport with traditional notions of fair play and substantial justice."
To find these contacts, the court looked to the web site (the source of the contact) - not the article (the source of the lawsuit). The web site was directed at a connecticut audience, only advertised to a connecticut audience, and the newspaper had no contacts at all with virginia. Thus, the newspaper web site has no minimum contacts with virginia with which to support personal jurisdiction over the defendant newspaper for posting the article.
If the newspaper had been a physical paper (it is, in fact also a physical paper) then the same analysis would be applied. The article would not be enough, unless the newspaper undertook affirmative acts (such as having paying customers in the forum state) to take advantage of the forum.
This has two practical effects. First, it doesn't prevent someone from suing a defendant--it just requires them to sue where they actually conduct their activities.
Second, this result actually means that internet publications will be treated the same as print publications, at least within the united states.
This obviously creates a problem, especially in the speech areas, with varying European and British laws. Americans certainly do not want to be subject to British libel laws unless they direct something to Britain, not just for posting things for an american audience.
So take the Gutnick case from AU. Under the 4th Circuit test, if the purportedly libelous statement was posted in the East Asian edition of the WSJ (which includes Australia) then it would (in this hypothetical) be more likely to meet the american minimum contacts standard. This is simply because the speech was directed at the forum state, and thus the author should expect to be responsible for posting targeted at that forum.
The opposite result would be rather dangerous: Imagine Slashdot, and any slashdot poster, subject to Saudi Arabian censorship laws. Or more deviously, American discussions of foreign policy and intelligence on web sites such as crytome.org subjected to the official secrets act. Imagine the effect on the NY Times if William Safire knew that the NYT was now subject to libel suits in Singapore for postings directed at the United States complaining about Singapore's government. Such a stifiling of commerce, speech and internet development wouldn't solve anyone's interest.
Now, about your hypotheticals:
(1) The Fourth Circuit test actually applies the same minimum contacts analysis to both physical and internet speech.
(2) If, as you suggest, a translation into a hypothetical country's unique language is included on a web site, that would be a strong indicator that the newspaper intended to target that forum, and would support (but wouldn't be definitive) of minimum contacts. For example, the LA Times serves a city with a large hispanic population. If it were to publish articles in spanish on its web site, that would not mean the LA Times was focusing its web site at Spain, Argentina or even Mexico.
There are so many security problems in Win 9x, let alone Win XP.
Who needs hundreds of bonus issues?
Most burglars do not take advantage of a loose second story window... they find a more common problem like a garage door left open.
First, the CA case is a trade secret case, not a DMCA case. But it will be lurking in the background.
Second, Justice O'Connor is responsible for granting the stay since the 9th circuit is her "territory" for these matters.
The next step is to see whether four justices want to vote for a grant of certiori to hear the issue of whether the due process clause of the Fourteenth Amendment permits this type of "universal jurisdiction."
As to the merits, the law is increasingly on Matt's side. For example, the Fourth Circuit (VA, MD, NC, SC...) recently determined that merely putting information (copyright infringement and libel cases) on the internet does not subject a person to jurisdiction. It requires some real purposeful availment of the forum (i.e. conduct directed towards CA). Pavlovich never availed himself of California law or directed his activities at California, thus under the majority of circuit law, he is not subject to personal jurisdiction in California.
The alternate view, from Australia and a few court decisions pertaining almost entirely to bad-guy cybersquatters, finds universal jurisdiction comporting with due process requirements from mere posting on the internet. Under this theory, you purposefully avail yourself of every forum by merely posting on the internet and assume you can be hauled into court anywhere.
While this may fly in Australia, due process under US law would have to be stretched beyond its limit to allow such jursidiction, and, as more and more of life becomes electronic, it would render the limits on personal jurisdiction in states entirely meaningless. Add to that the fact that the supreme court seems particularly unimpressed by foreign decisions.
The biggest problem for the DVDCCA is that this personal jurisdiction analysis is directed at the defendant, Matt Pavlovich. No matter how great DVDCCA's alleged harm, it is the Defendants' conduct that matters, the plaintiff's conduct is not relevant. He didn't take the information from CA but from third parties, and only has liability if he "should have known" it was a trade secret, had some sort of relationship with the DVDCCA, or actually misappropriated it himself.
Only the "should have known" theory applies here -- and it seems notoriously difficult for the DVDCCA to prove that this amounts to direct conduct aimed at CA.
So, in a nutshell, even if certiori were granted, it seems unlikely that the decision would be reversed, but rather it would be a good opportunity to settle the question that there is no "universal jurisdiction" in US courts over conduct on the internet unless it is aimed at or takes place in a particular state.
Anything in this comment constituting legal advice is false...
Anything in this comment constituting a disclaimer of legal advice is falser.
Unless MS comes up with some good arguments, I think there is a decent case that Windows is indeed generic.
If Windows is ruled a "generic" mark for a windowed operating system, then it is irrelevant that there is secondary meaning in the term "Windows" to the general public -- the trademark is likely invalid. period.
If Windows is ruled as merely "descriptive" of a windowed operating system, then secondary meaning could be shown pretty easily by MS (i.e. when I say "Windows" you think of MS Windows, unless you are in the construction industry) and the trademark is more likely to be ruled valid.
So, this may turn out as a fight over whether windows is "generic" or just "merely descriptive." Given the preexistence of XWindows, Lindows has a decent case. But many windowed operating systems existed that didn't need to use the word "windows": GEOS, GEM, MacOS, Xerox Star, etc. Points for MS. However, and here's the kicker... go into any of these operating systems, and look at the programming guides, and what to they call a program "window?" A Window! (Yes there are widgets too but they are not a window).
Anything construed in this comment as legal advice or a legal disclaimer is false.
As Borges once said about the Libaray of Babel wayback now...
...The Library is a sphere whose exact center is any one of its hexagons and whose circumference is inaccessible.
The universe (which others call the Library) is composed of an indefinite and perhaps infinite number of hexagonal galleries, with vast air shafts between, surrounded by very low railings.
Looks like he wasn't too far off...
Well, maybe not...
Especially after installing service packs, XP is as lethargic as a democratic candidate on Nov. 6.
Now I have OSX running at 800mhz. It seems mildly slower compared to other Unices (this is without tweeking, though). Having never run PPC linux, though, I can't give a fair comparison.
Which raises the question, why am I even posting this?
The poster of this article is simply legally incorrect.
Fair use is not a mere "statutory" right.
The fair use provisions of the 1976 copyright law (as expressed in 17 usc 107 and so on) are generally seen as co-extensive with the right to free speech protected under the 1st amendment according to many cases since the law went into effect.
Section 107 fair use was meant to create a statutory version of the judically enforced fair use doctrine that had previously resolved the inherent conflict between the constitutional free speech right and the constitutional copyright clause.
Congress cannot take away -all- fair use rights through legislation, and laws such as the DMCA are forcing the courts to deal with the true limits of the copyright power (as in Eldred and Corley) for the first time. Judge Newman in the 2d Circuit Corely decision may have carefully avoided the issue, but the recently created "dogma" that there are no constitutional restraints on the copyright power (as bolstered by Disney, AOLTimeWarnerTurnerNetscape, and the D.C. Circuit) will not last.
If the courts do not enforce first amendment fair use rights, then the public will demand a political, legislative solution. After all, more Americans voted for Napster than voted for either Bush or Gore.
-dh
do you think it is possible to form a litigation and lobbying plan, like the step-wise civil rights cases of forty years ago, to redeem fair use, the first amendment and establish a bulwark of digital rights? haphazard cases like napster, skylarov, corley (and even golan) aren't enough. don't we need a digital rosa parks?
-dh
>Next thing you know, I'll be needed to license my palm pilot.
Actually, you may soon need a license for your palm pilot. There is a patent case where Xerox claims that palm's graffiti language infringes its patent. If Xerox wins, you will have to pay royalties on any new palm/handspring/sony you buy.
Now, to the point: if a private party can make you license a palm pilot, the government can probably try. Do you use your palm in interstate commerce?
Better be careful. AOL may consider any unauthorized use of their servers as computer trespass - even if you are an AOL subscriber. (They can say via license "you are only authorized to use our servers using OUR software.")
Thus, this information is aiding and abetting computer trespass. Slashdot and the authors may be liable retroactively under the new terrorism legislation (depending on the scope of the hacking provisions) with mandatory life sentences for giving aid to terrorists.
By advocating an open AOL client for linux, given AOL's licensing terms, you are trying to change intellectual property policy, thus are "trying to change government policy through computer trespass" under the PATRIOT act, USA act, or whatever they are calling it now.
While this scenario seems crazy, keep in mind that this is literally within the scope of (some versions of) the terrorism legislation.
Conclusion: "You've got jail!"
Many of us are waiting to here from the 2nd circuit on the constitutionality of the DMCA anti-circumvention measures.
Assuming these measures are ultimately found unconstitutional (and your opinion on this would be nice), do you think the industry will accept revised legislation including fair use exceptions, or will they seek a constitutional amendment to conform the US to WIPO rules?
The following are excerpts of a cddb howto from an early 1998 document by the authors of cddb, found at http://mp3.musichall.cz/download/source/informatio n/cddb.howto. Its neat what you can find with google. It seems to raise license issues.
The CDDB data format and the CDDB servers are designed to be open, and are now used by many other client application software requiring CD information. The list of CDDB-capable applications is growing rapidly and a current list of these applications is available via the CDDB web site: http://www.cddb.com/
The xmcd package and the CDDB server software are both released as free software under the GNU General Public License, and we would like to foster the concept of free software. Moreover, the public CDDB servers all run on sites that have graciously volunteered their disk space, computing and network resources, not to mention occasional maintenance and support chores, all for free.
Given this, we provide full assistance to freeware authors who desire to incorporate the use of CDDB into their software. In addition, shareware programs are also supported, because it is our understanding that shareware authors, like freeware authors, usually develop their software because they enjoy doing so, and they rarely make significant enough money from their shareware programs. Users of CDDB-capable freeware and shareware applicationa may use the public CDDB servers for free.
Commercial uses of CDDB data and/or servers are subject to negotiations with the CDDB Project. Write to us at cddb-support@moonsoft.com for information.
The xmcd and CDDB server software are both released to the public with full source code. You may inspect the source to see how it works. but please be aware that the source code to both of these packages are released under the terms of the GNU General Public License. The full text of the GNU GPL is in the COPYING file in each of these packages.
all the "evil corporation" has to do is just file their patent within one year after your publication. .using their internal documents and lawyers.
They can still file it until a year after you publish it, so long as they can show the patent office they "invented it" before you did . .
Unfortunately, if the Rambus patent portfolio is valid, they can do whatever they want with "immunity" to US antitrut laws.
About a year ago, the US Federal Circuit (the US court with jurisdiction over patent appeals, answerable only to the US Supreme Court) decided that enforcement of a valid patent can never be an antitrust violation.
The decision was Intergraph v. Intel.
This means the best way to resolve this is finding prior art; one bit of prior art has been found over at technocrat.net.
-doug
Similarly, they could XOR-obfuscate the released code, and any attempt at REing the .doc format would be considered a violation of the DMCA.
Of course, MS would never do that.
Black holes come from the Australian Outback? Well, at least they're exporting something these days. Too bad the market for black holes, well, really sucks.
Be careful in Perth. Its near the Schwartzchild radius.