Actually, mere possession of an unlawfully made work is never infringing. It might be infringing to make that copy, or to give it to someone else. And if you did infringe, then part of the remedy might be the destruction of the unlawfully made copies you still have. But merely possessing it is lawful.
But who cares?
Downloading an mp3 necessarily involves reproduction, which can be infringing. Some of the cases and statutes I've cited deal with exactly that. And listening to it pretty much inevitably involves further reproduction, which also is infringing, as the caselaw clearly indicates.
No one has yet argued that possessing an illegally made mp3 is an illegal act. But getting it and doing anything with it certainly can be.
In any case, if you don't care for the analogy, don't worry about it. You shouldn't expect too much out of analogies in any event. Try arguing the law. But argue the applicable parts of the law, argue them honestly, and don't leave out parts you find inconvenient. If you do, you'll find that my conclusions are correct: it is illegal for a person in the US to download music from Allofmp3, and that such a person could be sued for copyright infringement for having done so.
[T]he code indicates the two cases, you insist I be thorough in my responses, I indicate both cases and you suggest I'm resorting to the second?
Actually, I don't have any idea what you're even trying to say here.
The question we've been discussing has been whether a person in the US who downloads mp3s from Allofmp3 has engaged in copyright infringement punishable under US law. Some uninformed people suggest that the various laws regarding importation yield the answer that such activity is not infringing. They are wrong, and I have shown this. On the other hand, I have pointed out that the laws regarding reproduction are directly on point and do in fact prohibit this downloading.
In order to contribute to the discussion, which you haven't done yet, you are going to need to either show, in light of the applicable statutes and caselaw, that it is infringing, or that it isn't. This means not dodging the reproduction issue, and not dodging the vast majority of the importation red herring (if you are going to waste our time with it). So far you've cherry-picked and misinterpreted. It all sounds great, if you don't know anything. But to those of us who are honest, and who really want to know what the law says, your brand of nonsense is pretty sad.
Now, if you are trying to talk about 602(a) and (b), you cannot neglect the fact that there are independent prohibitions on importing in both (a) and (b). The exception in (a)(2) only applies to the prohibition in (a). That is why it says 'subsection,' not 'section,' or 'title.' Thus, even when (a)(2) applies, you must still deal with (b). You haven't. You also haven't dealt with the overall inapplicability of importation anyway. You haven't shown that information being transmitted over a wire or through the air is fixed within a material object, as it must be in order to qualify as a phonorecord.
And it's a waste of time in any case, because talking about physical movement with baggage over borders is a non sequitur. We're talking about downloading, not traveling to and fro.
Nowhere in the section does it say US law. It refers copyright law.
Oh?
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
"This title" can only mean Title 17 of the United States Code. That is, the title those words are within. It does not, however, say "copyright law."
While it bothers me a bit to see you trolling or lying or whatever. But do you have to be so damn incompetent at it?
Anyway, the rest of your post is similarly insipid and wrong. It's obvious enough that I don't think I have to bother to knock it down. It collapses on its own.
Well, they've been having some legal troubles in Russia lately (Russia wants to improve trade relations with the US), recently shut down for a few days, and now have come back. I'm suspicious enough that I would not put it past Allofmp3 to be logging their users, either as part of a deal with RIAA and Russian authorities, or in anticipation of having to make a deal. As I recall, some torrent tracker sites have been known to do the same thing.
You need to look at the subsection in its entirety. It says:
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, the United States Customs Service has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the Customs Service of the importation of articles that appear to be copies or phonorecords of the work.
When the second sentence, the one you quoted, talks of phonorecords that were lawfully made, it's clear that they do so in the light of the preceeding sentence, which applied US law, not foreign law. That is, if the phonorecord was made lawfully, had US law applied in the place where they were made, then it cannot be held up in Customs.
17 USC 602 deals with "copies or phonorecords". Not copies *of* phonorecords.
A copy of a phonorecord is also a phonorecord. Take a look at the definition at 17 USC 101.
And you are off again - sending something over the wire is also considered importing. Or have you forgotten the old export controls on cryptographic software transmitted oversears already?
I know them, and there are still controls of this nature. However, those regulations, which were enacted by an administrative agency, rather than Congress, specifically define exportation as encompassing Internet transmissions. Congress, on the other hand, has not so defined importation for purposes of copyright law. The agency definition isn't particularly relevant, as it's not of Congressional origin, and deals with an entirely different subject matter. If you want to argue about what copyright law says, you're going to have to do so based on copyright law, not something entirely unrelated. This might seem odd to you, but it's a fairly ordinary situation.
If you the copy is just for yourself or part of your baggage if you physically came through the borders there is no issue.
Except of course, that 602(a)(2) only applies to the ban on importation in subsection (a). It does not apply to the independent ban on importation in subsection (b), which you are still failing to address.
And of course, Allofmp3 has nothing to do with importation anyhow, as I've shown. That's why you had to resort to an example involving baggage, which certainly isn't involved in most people's transactions with Allofmp3.
Your own first links that you cite point out that phonographs, legally copied, are allowed to be imported.
Actually, there are significant limits on that. What 17 USC 602 does, as you'd know if you read it, is it prohibits importing phonorecords unless two conditions are both met: 1) that, had US law applied in the place where the phonorecord was made, the making of it would have been legal, and 2) that one of the three exceptions in subsection 602(a) is applicable. Just satisfying one or the other isn't good enough; it has to be both.
So when you say, These songs were legally produced in Russia, that's not good enough. In order for 602(b) to not prohibit importation, it doesn't matter if it was legal under Russian law. It has to have been legal if US law had applied. And since US law doesn't have the same compulsory licensing scheme that allofmp3 purports to rely upon, it just doesn't work out.
But again, all of this importation discussion is a red herring. When you download, you are not importing. You are reproducing.
So to sum up, you said: NOTHING in the links you posted implies that legally produced mp3s that are legally purchased and imported for personal use have been found illegal.
And you are utterly wrong. It is impossible to import an mp3 by means of downloading it. This is because the statute deals with importing phonorecords. A phonorecord is defined in the law as a material object, such as a CD, or a vinyl record. If you can download one of those, as opposed to the information on it, I'll be impressed. For your next trick, you can download a sandwich. Furthermore, even if you were importing them -- which would basically have to be through the mail or via a courier or something -- that would be illegal because there's really just no way to get around section 602(b).
If you had bothered to read the relatively small amount of entirely on-point legal documents, you wouldn't have made a fool out of yourself. Let's hope you don't do so again.
you resent having to pay.99/song off iTunes, when your "in the know" friends have been paying.9-.25/song.
Actually, I've never used iTMS. I think it's a rip-off. And I don't resent people who pirate music, whether it's on Allofmp3 or wherever. I think that it ought to be legal for people to download music for free.
What I don't like is people spreading misinformation about the law. If someone is making a decision whether or not to break the law, I think they should be fully informed. And I think that in order to rally support for changing the law to reduce the scope of copyright, people are going to need to have accurate information as to just how bad copyright is now.
While I won't disagree, the whole importation issue is really a red herring. Downloading is not importation, at least under US law, because importation involves the movement across borders of material objects. Downloading wouldn't qualify. You'd need to mail a CD or something.
and the somewhat-legal allofmp3.com for the major-label stuff.
Well, it depends.
Pot is effectively legal in the Netherlands. But that doesn't mean that Americans can import it from there. That something is legal in one country doesn't mean it will be elsewhere.
Similarly, for people here in the US, American copyright law is in effect, and Russian copyright law is irrelevant. And the laws here prohibit downloading from allofmp3, regardless of whether they're legal in Russia or not. As I see it, if you're going to pirate music, you might as well not pay shady Russians when it's entirely possible to do it for free.
And in an effort to prevent people from replying with misinformation, if you disagree and wish to reply, please first consider and address the following issues:
That 17 USC 602(a)(2) by its own language is limited to the import prohibition in subsection (a); the prohibition in subsection (b) remains in force.
That copies and phonorecords are defined in 17 USC 101 as being material objects, which means that no physical object in Russia can be moved to the US via the Internet, making section 602 a red herring.
That the courts have stated that unauthorized downloading of copyrighted works is an infringement of the reproduction right of the copyright holder. See e.g. Napster and Intellectual Reserve.
That the courts will generally assign liability for the reproduction infringement to the downloader, barring unusual circumstances, like downloads that were in fact caused by a hacker, and not the user of the computer. See e.g. Netcom.
That the standard of proof used in a civil copyright case (e.g. one brought by the RIAA) is the preponderance of the evidence standard, which results in the defendant being liable if thinks that there was as little as a 51% chance that he actually did it, even if they entertain reasonable doubts (e.g. the presence of an open WAP, that there are other people able to use the computer).
That 17 USC 1008 is inapplicable, because it does not cover downloading. See e.g. Napster and Diamond. Also see the important definitions in sections 1001 and 101 and what the law would require if 1008 were applicable to computers, per sections 1002 and 1003.
That just because RIAA has not sued someone yet does not mean that they cannot or will not. See e.g. the suits against Napster (which started in 1999) and the suits against users (which started in 2003). Tactical concerns, such as how to use the limited budget for legal action in the most effective way, or which
FYI, the word you want is not injunct, it is enjoin. Of course, if someone is enjoined, then this was accomplished by their opponent asking for injunctive relief and the court issuing an injunction, so your confusion is perfectly understandable.
This is the sort of thing that makes the English language so much fun.
Well, win, collect, and stand to earn more than if a traditional fee arrangement had been used, and stand to earn more than other cases that have come in the door.
Maybe, but the judicial system frowns on that sort of thing. Even if a case is just a test case, the it's important that the parties really are trying to win and that there is a real controversy, not a manufactured one.
You know, they usually take telephone bids. You don't have to be there in person. But you're right, that flute is going to go for way more than they think.
And if programmers hadn't made it difficult to write operating systems, anyone could just immediately fix anything that made their machine crash.
Some things are complicated. A legal system doesn't have to be, but if you want it to be just, then you're stuck with it, just as an OS that does anything useful is going to be complex as well.
Well, yes, but the comment you're replying to is substantially correct.
The purpose of the patent system is to serve the public good. There are a few different public interests at work here, and what we want is to satisfy those interests to the greatest degree possible. We're looking at the net satisfaction, so a reduction to one portion of the public good may be acceptable if it results in a greater increase in another portion of the public good.
The interests in the patent system are: 1) to encourage the invention of novel, nonobvious, useful inventions, whether they are original or refinements of previous inventions; 2) to encourage disclosure of inventions, the best modes for practicing inventions, etc.; 3) to cause inventions to be brought to market; 4) to have no, or minimal restrictions on the public (including inventors) with regard to inventions.
If we have no patent system, then we see this: 1) There are encouragements to invention, as evidenced by the fact that people invented things prior to the first patent statute in Venice in 1474, but there could pretty certainly be more encouragements. Thus, the first factor is somewhat, but not fully satisfied. Note, however, that sometimes there can be a lot of encouragements without patents; does anyone think that Apple or Creative would not have invented what they did even if there were no software patents? Remember, not all inventions will require a huge incentive; often a modest one will do.
2) Disclosure is generally uncommon, so this factor is not being well satisfied at all. It's possible that for some inventions it is not difficult to reverse engineer the invention from an article embodying it E.g. if you had a Creative mp3 player, it would not be hard to suss out the menuing system just by fiddling with it. OTOH if you had a wonder drug, it might be trickier to figure out what it was, how it worked, and how to make it. Deliberate disclosure by the inventor is better than relying on reverse engineering.
3) Inventions may be brought to market, but it might occur in a more limited fashion, since without patents, inventors that don't want competition are concerned with reverse engineering. If they feel that they can't recover their costs and make a good profit, they might as well let the invention languish. This factor is partially satisfied, but probably not much.
4) Without patents, there are no restrictions on inventions. So this interest is maximally satisfied.
The net satisfaction then, with one factor maxed out and three not particularly fulfilled (though this might vary depending on the kind of invention we're talking about), is decent, but capable of being improved upon.
Alternatively, if we have a modest patent system, we see this:
1) The monopoly of a patent is a significant incentive toward invention. Of course, we have to be wary, since we don't want to offer one iota of incentive if we don't have to. Offering extra incentive is like going to the car dealership and buying a car for more than the sticker price. The dealer likes it, but would have sold you the car for less, and it's money out of your pocket, since you would have gotten the car for less. It's waste. So we might want to limit the patent monopoly in significant ways to minimize wasted incentive. (This is why I oppose software and business method patents -- I think there's enough natural incentive already that it's foolish to offer more)
2) Disclosure is required. Since the inventor would likely prefer to get a monopoly with less disclosure, this is one of the things the incentive we offer has to make up for. But it's worth it, since without required disclosure, first, no one would really know what the patent covered, making it impossible to avoid infringing on it while still doing absolutely anything that wasn't infringing. In this way, disclosure acts like a fence, or a map, letting you know where you can and can't go. Second, without disclosure, it would still be hard for others to practice the invention once the pat
Well, if they're going to court, they had better. Despite what you might have seen on tv, the idea of surprising the opposing side in court is not tolerated. Litigants have a duty to give a lot of information to the other side unasked, and to respond to what are often quite broad requests for information that made by the other side. The courts want both parties to know all the facts so that there are no surprises, and hopefully a sufficiently predictable outcome so that they settle or at least stipulate to facts, reducing the size of the dispute and the court's workload.
No, it's per song, regardless of how many times that song was copied. So if you copy a song and I copy the same song, and we're both connected to a third party that is the actual target of the lawsuit based on our copying (e.g. Napster was sued because it helped its users infringe, not because it infringed itself), then the song only counts once.
And of course, $150,000 per song is merely the maximum statutory damages. The normal range is $750 - $30,000 per song. If the plaintiff can show that the offender acted intentionally, then the ceiling goes up to $150,000. If the defendant can show that he acted 'innocently' (i.e. not even rising up to the standard of negligence) the floor goes down to $200. Of course, it's worth noting that in that situation, where you had no idea that what you were doing was infringing, and had no reason to believe otherwise, you're still on the hook for $200 per work.
Anyway, the pertinent statute is 17 USC 504, if you want to read it.
This person I know works as a copyright lawyer. Coincidentally for Microsoft. Her job is to find vague ideas that have not been patented and patent them in as many countries as possible with the broadest most vague wording that could possibly hold up in court.
Sounds like she actually works as a patent lawyer.
First, this isn't a blow against injunctive relief as a remedy. Injunctions are still perfectly available, but they won't be effectively automatic. Instead equitable principles will be used to determine if a defendant should be enjoined.
Specifically, the test is this:
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
What the Court doesn't want is to automatically grant or not grant this relief. It wants case-by-case determinations.
Just as the District Court erred in its categorical denial of injunctive relief, the Court of Appeals erred in its categorical grant of such relief.
Second, the Court specifically addressed the issue of small inventors.
[S]ome patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so.
J. Kennedy's concurrence also included this:
An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. See FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, ch. 3, pp. 38-39 (Oct. 2003), available at http://www.ftc.gov/os/2003/10/innovationrpt.pdf (as visited May 11, 2006, and available in Clerk of Court's case file). For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. See ibid. When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.The equitable discretion over injunctions, granted by the Patent Act, is well suited to allow courts to adapt to the rapid technological and legal developments in the patent system. For these reasons it should be recognized that district courts must determine whether past practice fits the circumstances of the cases before them.
Why the hell are there buttons ('Move Up' and 'Move Down') for reordering the search plugins. They should be able to be dragged and dropped. It's not like the developers can't do this; the bookmarks can be. Why not this?
(It would also be nice for Firefox and Mozilla to understand URL files generated by IE. Safari seems to manage.)
Slashdot Mirror
Actually, mere possession of an unlawfully made work is never infringing. It might be infringing to make that copy, or to give it to someone else. And if you did infringe, then part of the remedy might be the destruction of the unlawfully made copies you still have. But merely possessing it is lawful.
But who cares?
Downloading an mp3 necessarily involves reproduction, which can be infringing. Some of the cases and statutes I've cited deal with exactly that. And listening to it pretty much inevitably involves further reproduction, which also is infringing, as the caselaw clearly indicates.
No one has yet argued that possessing an illegally made mp3 is an illegal act. But getting it and doing anything with it certainly can be.
In any case, if you don't care for the analogy, don't worry about it. You shouldn't expect too much out of analogies in any event. Try arguing the law. But argue the applicable parts of the law, argue them honestly, and don't leave out parts you find inconvenient. If you do, you'll find that my conclusions are correct: it is illegal for a person in the US to download music from Allofmp3, and that such a person could be sued for copyright infringement for having done so.
[T]he code indicates the two cases, you insist I be thorough in my responses, I indicate both cases and you suggest I'm resorting to the second?
Actually, I don't have any idea what you're even trying to say here.
The question we've been discussing has been whether a person in the US who downloads mp3s from Allofmp3 has engaged in copyright infringement punishable under US law. Some uninformed people suggest that the various laws regarding importation yield the answer that such activity is not infringing. They are wrong, and I have shown this. On the other hand, I have pointed out that the laws regarding reproduction are directly on point and do in fact prohibit this downloading.
In order to contribute to the discussion, which you haven't done yet, you are going to need to either show, in light of the applicable statutes and caselaw, that it is infringing, or that it isn't. This means not dodging the reproduction issue, and not dodging the vast majority of the importation red herring (if you are going to waste our time with it). So far you've cherry-picked and misinterpreted. It all sounds great, if you don't know anything. But to those of us who are honest, and who really want to know what the law says, your brand of nonsense is pretty sad.
Now, if you are trying to talk about 602(a) and (b), you cannot neglect the fact that there are independent prohibitions on importing in both (a) and (b). The exception in (a)(2) only applies to the prohibition in (a). That is why it says 'subsection,' not 'section,' or 'title.' Thus, even when (a)(2) applies, you must still deal with (b). You haven't. You also haven't dealt with the overall inapplicability of importation anyway. You haven't shown that information being transmitted over a wire or through the air is fixed within a material object, as it must be in order to qualify as a phonorecord.
And it's a waste of time in any case, because talking about physical movement with baggage over borders is a non sequitur. We're talking about downloading, not traveling to and fro.
Oh?
"This title" can only mean Title 17 of the United States Code. That is, the title those words are within. It does not, however, say "copyright law."
While it bothers me a bit to see you trolling or lying or whatever. But do you have to be so damn incompetent at it?
Anyway, the rest of your post is similarly insipid and wrong. It's obvious enough that I don't think I have to bother to knock it down. It collapses on its own.
Well, they've been having some legal troubles in Russia lately (Russia wants to improve trade relations with the US), recently shut down for a few days, and now have come back. I'm suspicious enough that I would not put it past Allofmp3 to be logging their users, either as part of a deal with RIAA and Russian authorities, or in anticipation of having to make a deal. As I recall, some torrent tracker sites have been known to do the same thing.
When the second sentence, the one you quoted, talks of phonorecords that were lawfully made, it's clear that they do so in the light of the preceeding sentence, which applied US law, not foreign law. That is, if the phonorecord was made lawfully, had US law applied in the place where they were made, then it cannot be held up in Customs.
17 USC 602 deals with "copies or phonorecords". Not copies *of* phonorecords.
A copy of a phonorecord is also a phonorecord. Take a look at the definition at 17 USC 101.
And you are off again - sending something over the wire is also considered importing. Or have you forgotten the old export controls on cryptographic software transmitted oversears already?
I know them, and there are still controls of this nature. However, those regulations, which were enacted by an administrative agency, rather than Congress, specifically define exportation as encompassing Internet transmissions. Congress, on the other hand, has not so defined importation for purposes of copyright law. The agency definition isn't particularly relevant, as it's not of Congressional origin, and deals with an entirely different subject matter. If you want to argue about what copyright law says, you're going to have to do so based on copyright law, not something entirely unrelated. This might seem odd to you, but it's a fairly ordinary situation.
If you the copy is just for yourself or part of your baggage if you physically came through the borders there is no issue.
Except of course, that 602(a)(2) only applies to the ban on importation in subsection (a). It does not apply to the independent ban on importation in subsection (b), which you are still failing to address.
And of course, Allofmp3 has nothing to do with importation anyhow, as I've shown. That's why you had to resort to an example involving baggage, which certainly isn't involved in most people's transactions with Allofmp3.
Your own first links that you cite point out that phonographs, legally copied, are allowed to be imported.
.99/song off iTunes, when your "in the know" friends have been paying .9-.25/song.
Actually, there are significant limits on that. What 17 USC 602 does, as you'd know if you read it, is it prohibits importing phonorecords unless two conditions are both met: 1) that, had US law applied in the place where the phonorecord was made, the making of it would have been legal, and 2) that one of the three exceptions in subsection 602(a) is applicable. Just satisfying one or the other isn't good enough; it has to be both.
So when you say, These songs were legally produced in Russia, that's not good enough. In order for 602(b) to not prohibit importation, it doesn't matter if it was legal under Russian law. It has to have been legal if US law had applied. And since US law doesn't have the same compulsory licensing scheme that allofmp3 purports to rely upon, it just doesn't work out.
But again, all of this importation discussion is a red herring. When you download, you are not importing. You are reproducing.
So to sum up, you said: NOTHING in the links you posted implies that legally produced mp3s that are legally purchased and imported for personal use have been found illegal.
And you are utterly wrong. It is impossible to import an mp3 by means of downloading it. This is because the statute deals with importing phonorecords. A phonorecord is defined in the law as a material object, such as a CD, or a vinyl record. If you can download one of those, as opposed to the information on it, I'll be impressed. For your next trick, you can download a sandwich. Furthermore, even if you were importing them -- which would basically have to be through the mail or via a courier or something -- that would be illegal because there's really just no way to get around section 602(b).
If you had bothered to read the relatively small amount of entirely on-point legal documents, you wouldn't have made a fool out of yourself. Let's hope you don't do so again.
you resent having to pay
Actually, I've never used iTMS. I think it's a rip-off. And I don't resent people who pirate music, whether it's on Allofmp3 or wherever. I think that it ought to be legal for people to download music for free.
What I don't like is people spreading misinformation about the law. If someone is making a decision whether or not to break the law, I think they should be fully informed. And I think that in order to rally support for changing the law to reduce the scope of copyright, people are going to need to have accurate information as to just how bad copyright is now.
While I won't disagree, the whole importation issue is really a red herring. Downloading is not importation, at least under US law, because importation involves the movement across borders of material objects. Downloading wouldn't qualify. You'd need to mail a CD or something.
Well, it depends.
Pot is effectively legal in the Netherlands. But that doesn't mean that Americans can import it from there. That something is legal in one country doesn't mean it will be elsewhere.
Similarly, for people here in the US, American copyright law is in effect, and Russian copyright law is irrelevant. And the laws here prohibit downloading from allofmp3, regardless of whether they're legal in Russia or not. As I see it, if you're going to pirate music, you might as well not pay shady Russians when it's entirely possible to do it for free.
And in an effort to prevent people from replying with misinformation, if you disagree and wish to reply, please first consider and address the following issues:
FYI, the word you want is not injunct, it is enjoin. Of course, if someone is enjoined, then this was accomplished by their opponent asking for injunctive relief and the court issuing an injunction, so your confusion is perfectly understandable.
This is the sort of thing that makes the English language so much fun.
Well, win, collect, and stand to earn more than if a traditional fee arrangement had been used, and stand to earn more than other cases that have come in the door.
Maybe, but the judicial system frowns on that sort of thing. Even if a case is just a test case, the it's important that the parties really are trying to win and that there is a real controversy, not a manufactured one.
You know, they usually take telephone bids. You don't have to be there in person. But you're right, that flute is going to go for way more than they think.
Yet, the best part of "Star Trek" cannot be bought.
The best part of "Star Trek" is the message of hope.
Hope is not what Christie's auction will sell.
No, no, check the catalogue. Hope is in there. It's item number 47. This auction really has got everything.
And if programmers hadn't made it difficult to write operating systems, anyone could just immediately fix anything that made their machine crash.
Some things are complicated. A legal system doesn't have to be, but if you want it to be just, then you're stuck with it, just as an OS that does anything useful is going to be complex as well.
It's not deliberate.
That's what I'm talking about, yes.
It sounds good, but what if I'm in Tennessee?
You say that as though it's a bad thing.
Well, yes, but the comment you're replying to is substantially correct.
The purpose of the patent system is to serve the public good. There are a few different public interests at work here, and what we want is to satisfy those interests to the greatest degree possible. We're looking at the net satisfaction, so a reduction to one portion of the public good may be acceptable if it results in a greater increase in another portion of the public good.
The interests in the patent system are: 1) to encourage the invention of novel, nonobvious, useful inventions, whether they are original or refinements of previous inventions; 2) to encourage disclosure of inventions, the best modes for practicing inventions, etc.; 3) to cause inventions to be brought to market; 4) to have no, or minimal restrictions on the public (including inventors) with regard to inventions.
If we have no patent system, then we see this:
1) There are encouragements to invention, as evidenced by the fact that people invented things prior to the first patent statute in Venice in 1474, but there could pretty certainly be more encouragements. Thus, the first factor is somewhat, but not fully satisfied. Note, however, that sometimes there can be a lot of encouragements without patents; does anyone think that Apple or Creative would not have invented what they did even if there were no software patents? Remember, not all inventions will require a huge incentive; often a modest one will do.
2) Disclosure is generally uncommon, so this factor is not being well satisfied at all. It's possible that for some inventions it is not difficult to reverse engineer the invention from an article embodying it E.g. if you had a Creative mp3 player, it would not be hard to suss out the menuing system just by fiddling with it. OTOH if you had a wonder drug, it might be trickier to figure out what it was, how it worked, and how to make it. Deliberate disclosure by the inventor is better than relying on reverse engineering.
3) Inventions may be brought to market, but it might occur in a more limited fashion, since without patents, inventors that don't want competition are concerned with reverse engineering. If they feel that they can't recover their costs and make a good profit, they might as well let the invention languish. This factor is partially satisfied, but probably not much.
4) Without patents, there are no restrictions on inventions. So this interest is maximally satisfied.
The net satisfaction then, with one factor maxed out and three not particularly fulfilled (though this might vary depending on the kind of invention we're talking about), is decent, but capable of being improved upon.
Alternatively, if we have a modest patent system, we see this:
1) The monopoly of a patent is a significant incentive toward invention. Of course, we have to be wary, since we don't want to offer one iota of incentive if we don't have to. Offering extra incentive is like going to the car dealership and buying a car for more than the sticker price. The dealer likes it, but would have sold you the car for less, and it's money out of your pocket, since you would have gotten the car for less. It's waste. So we might want to limit the patent monopoly in significant ways to minimize wasted incentive. (This is why I oppose software and business method patents -- I think there's enough natural incentive already that it's foolish to offer more)
2) Disclosure is required. Since the inventor would likely prefer to get a monopoly with less disclosure, this is one of the things the incentive we offer has to make up for. But it's worth it, since without required disclosure, first, no one would really know what the patent covered, making it impossible to avoid infringing on it while still doing absolutely anything that wasn't infringing. In this way, disclosure acts like a fence, or a map, letting you know where you can and can't go. Second, without disclosure, it would still be hard for others to practice the invention once the pat
Well, if they're going to court, they had better. Despite what you might have seen on tv, the idea of surprising the opposing side in court is not tolerated. Litigants have a duty to give a lot of information to the other side unasked, and to respond to what are often quite broad requests for information that made by the other side. The courts want both parties to know all the facts so that there are no surprises, and hopefully a sufficiently predictable outcome so that they settle or at least stipulate to facts, reducing the size of the dispute and the court's workload.
Lawsuits are not poker games.
No, it's per song, regardless of how many times that song was copied. So if you copy a song and I copy the same song, and we're both connected to a third party that is the actual target of the lawsuit based on our copying (e.g. Napster was sued because it helped its users infringe, not because it infringed itself), then the song only counts once.
And of course, $150,000 per song is merely the maximum statutory damages. The normal range is $750 - $30,000 per song. If the plaintiff can show that the offender acted intentionally, then the ceiling goes up to $150,000. If the defendant can show that he acted 'innocently' (i.e. not even rising up to the standard of negligence) the floor goes down to $200. Of course, it's worth noting that in that situation, where you had no idea that what you were doing was infringing, and had no reason to believe otherwise, you're still on the hook for $200 per work.
Anyway, the pertinent statute is 17 USC 504, if you want to read it.
This person I know works as a copyright lawyer. Coincidentally for Microsoft. Her job is to find vague ideas that have not been patented and patent them in as many countries as possible with the broadest most vague wording that could possibly hold up in court.
Sounds like she actually works as a patent lawyer.
First, this isn't a blow against injunctive relief as a remedy. Injunctions are still perfectly available, but they won't be effectively automatic. Instead equitable principles will be used to determine if a defendant should be enjoined.
Specifically, the test is this:
What the Court doesn't want is to automatically grant or not grant this relief. It wants case-by-case determinations.
Second, the Court specifically addressed the issue of small inventors.
J. Kennedy's concurrence also included this:
I dub them 'Snake Eyes' and 'Storm Shadow.'
Fucking dammit.
Why the hell are there buttons ('Move Up' and 'Move Down') for reordering the search plugins. They should be able to be dragged and dropped. It's not like the developers can't do this; the bookmarks can be. Why not this?
(It would also be nice for Firefox and Mozilla to understand URL files generated by IE. Safari seems to manage.)