Fully cognizant that it was antimajoritarian, the Constitutional Congress, after fairly extensive debate, adopted the bill of rights, which was ratified and made part of our organic document.
The fundamental premise of the bill of rights is precisely this: 50 million people CAN be wrong. The majority rules in virtually every area of our life, but cannot overreach into the protected areas set forth in the bill of rights. That requires a special supermajority of both houses and ratification of 3/5 of the states. Nothing less will do.
While a reasonable person may dispute whether this federal District Court Judge was correct, it is now for the Judiciary, particularly because they are appointed for life and not subject to the political whims of 50 million people who will make that call. There are stopgaps behind stopgaps. If one judge is wrong, a panel of three Circuit judges can correct it. If they are wrong, an en banc panel of the Circuit Court might correct it. And if they are wrong, and it matters, the Supreme Court can reach and give final breath into the result.
And if you don't like that, you will need a whole lot more than 50 million people, but certainly, you might try, to get a constitutional amendment passed.
I have no problem with your thinking that the Judge is wrong -- I haven't looked at the opinion yet, but the reports I have seen don't seem right to me either. Just don't pretend that there is anything unamerican or inappropriate about what this judge did.
Indeed, what the Judge did in this case is distinctly and clearly American -- exercise a special stopgap to keep a mob from controlling American free speech. Right or wrong from issue to issue, the founders got it right as a structure for organizing society. Majority rules, except where they shouldn't. Damned brilliant idea.
Alas and alack, Federal law and the law of most states provide for the legitimacy of an electronic record as a "signed writing" within the meaning of the law. Microsoft itself expressly lobbied for the Federal E-sign statute.
Judge Kent is bar far one of the funniest judges on the federal bench. I strongly comment a quick read of his opinion in this case, which concerned a motion drafted in crayon.
Please forgive me for presuming that you meant what you wrote in the post to which I responded. Despite the uncalled-for name-calling, you make two salient points: (i) many slashdotters are much smarter than the arguments they post here; and (ii) it is foolish to judge someone quickly based on a few posts. In view of your evaluation of me: pot-kettle-black.
If all of our advocacy were moderately placed and directed to the merits, fully supported and completely credible, you wouldn't feel the need to engage in Slashdot hyperbolae -- you might have won the day where it counted.
My criticisms should not be taken as a personal assault on you, but rather on the vast majority of our colleagues and, alas, virtually all of the anti-patent advocates who DID lobby the Parliament with blather and platitudes in lieu of argument.
Since we agree in principle, or so you say, there really isn't much more to say. I am pleased you are a solid balanced advocate. Alas, most of those who were players in this present debate were not, and THAT is why the resolution passed by a huge margin. The vast majority of postings in this forum presumed, cynically and naively, that the reason things went as they did, was cluelessness and self-interest. Again. Pot-kettle-black.
By flaming at this with hyperbolae, your arguments remain unheard, and your interests remain unrepresented. This is not because sound arguments to support your views don't exist, but because you seem far happier spitting in the wind on a techie bulletin board than actually getting more moderate laws passed.
Seriously, one reason this bill passed without a sweat is simple: the anti-patent advocacy sucked. Filled with ridiculous claims of a parade of horribles that havent actually happened in the US despite nearly twenty-five years of software patents, the rhetoric fell flat on its own weight. Arguments that play well on Slashdot simply do not resonate and, quite frankly, are trivially shut down in a more moderate forum. You might as well have been donating to a pro-patent PAC by lending this form of advocacy to the anti-patent movement.
The antis made the wrong move here -- it was not to oppose, but to ameliorate. Not to speak in ridiculous and unsupportable grand strokes, but to limit the argument to statements that the balance is wrong, and needs to be carefully weighed. Or, if you REALLY believed your bullshit, to set up a sunset upon the happening of the parade of horribles, as a compromise.
The move was anything but to oppose completely a well-reasoned and more moderate bill, without offering a plausible alternative.
The antis here didn't get it. IP is ALWAYS a balancing of interests -- there is ALWAYS a winner and loser -- and there is ALWAYS some cases of problems arising from the system. So what if that is the case -- that actually is the point of IP law -- to strike an economic structure that is -- on balace -- more favorable to society as a whole than an unregulated commons of ideas and invention.
What the antis forgot here, is that this was NOT a referendum on the patent system -- the assumptions that a patent system is a good thing was not only established, but fundamental to the issues -- the question was not whether patent policy is good or bad, but whether society is better off if these good policies were extended to Information Technology inventions. Thus, on the spectrum of three primary arguments:
Patents are bad.
Software Patents are bad.
Bad Software Patents are bad.
only the second could have any force or meaning. Almost every argument focused on challenging fundemental assumptions that support the patent system, or lamenting what happens if a bad patent were issued. Neither could be persuasive in this forum. Thus, the overarching demagoguing we saw here was ignored and pointless.
The argument, really the only play, is to acknowledge that --- to argue within that structure -- and to point out how the balance may be disturbed by new or existing rules, with meaningful alternatives that would correct the shortcomings.
Another opportunity for IP moderation was lost, because children wanted to fight in their playground of ideas. Get with it -- these arguments only win in Slashdot. And slashdotters don't get to vote on the laws.
Advocacy is not only about getting motivated people to march -- it is primarily about persuading moderates and those on the other side to see clearly your position. Nothing I have seen here indicates that the anti-software-patent movement has learned anything from its now twenty-five-years of failure to get anything done.
Sure, it must make you feel better to play the cynic or nihilist and assume that: (1) you must be right; and (2) they must have been corrupted by money. I'd just as soon you set those feelings aside, stop whining, and go to the beach or do something else productive -- so that those of us who actually do have arguments that can make a difference might get something done.
This is a prime example of government and business running rough-shod over the little guy. There will be no room for independent contractors or small software shops - or open source as the screws are tightened...
All actual evidence to the contrary.
1) Diamond v. Diehr, the Supreme Court case that opened the floodgates in the United States, came down almost 25 years ago, in March of 1981. Somehow, the record does not demonstrate a dearth of independent contractors, small software shops or lack of open source. Indeed, the height of the open source movement occurred in the prime of the software patent era.
2) The record verdict in patent infringement cases, when I last checked, remains STAC v. Microsoft, in which Microsoft (not the tinyist of companies), lost to the virtually bankrupt estate of tiny STAC.
3) The anti-patent movement has no serious traction among small businesses. Despite a kazillion chambers of commerce and small business associations across the nation -- all of whom have significant advocacy budgets, there is no meaningful and identifiable anti-patent constituency.
Quite seriously, the laws could use some trimming back, but so long as demagoguery such as this e-mail persists as the primary form of anti-patent advocacy, you guys might as well be donating to the pro-patent PACs. The ONLY way to be taken seriously, is to make arguments that stick, arguments that make sense, and arguments that are likely to lead to meaningful reform.
These parade of horribles arguments were laughed out of the Parliament, for one simple reason: U.S. Software remains vital despite 25 years of software patents.
By spending all of your energy making arguments that can't win, you will never stop the juggernaut, who need only make routine, defensible and pedestrian arguments to win the day. Challenge them more fundamentally -- make more modest demands and compromises -- and then you might have hopes for some change.
In a real sense, how "extreme" the concerns of the community in favor of freedom for computer users and developers are completely irrelevant.
No, the concerns become irrelevant when we make extreme and unsupportable statements. Take extreme views, and get ignored. You may think you need to go to a new country -- I have quite effectively lobbied against the very interests you claim to be untouchable -- and it was not by taking extreme positions.
They certainly didn't refuse. The letter simply stated that they felt it was premature to do so. Indeed, they might never acceed, but I was infuriated at Varisign when I read that they said the wouldn't voluntarily suspend, and then angry at the story when I realized this was a dangerous paraphrase.
Arrogance: we need better political hackers . . .
on
Lobbying For Linux
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· Score: 1
not more hackers playing politics.
I have seen so many arguments alleging cluelessness on the parts of politicians, simply because you disagree with their positions and where in the end they might come out. This is naive and arrogant in the extreme. And the more we do this, the more we actually help those seeking stronger technology regulation. What fools we can be sometimes.
In the ongoing debates, I have pointed out the hopelessness and fallacy of taking extreme and unprovable positions in opposition to a bil, even though you may well believe deeply in the righteousness and correctness of your position. Politics doesn't work that way -- and neither does logic.
There is a fundamental difference between offering strong and nonfalsifiable rhethoric and making a strong and provable case. The problem is that a single plausible potential counterexample can shatter the credibility of the former. If you overreach with your rhetoric, you will simply talk yourself out of the debate -- as soon as someone begins to doubt the certainty of an extreme position, they wilt and start counting votes.
There is also a fundamental difference between making a strong and provable case that something might happen, and making a strong political case that it matters whether it happens. Even if you can demonstrate that bill A might cause effect B, you have to go much further, and show that the costs of B outweigh the benefits of passing A.
Finally, there are times to realize that something will happen, because a constiuency feels a need for something to happen, and that it is more important to have the bill that WILL be passed, not be the worst it can be.
ACM and academic groups made this mistake during DMCA debates in the US, missing many opportunities to slow down the train in the foolish hope of stopping it altogether. The end result is that it was almost the worst of all possible bills. The few gracious benefits derived from the efforts of those who fought for crypto and reverse engineering exceptions. Much more could have been done, but for the arrogance of those who thought they could kill it dead with raw rhetoric.
We don't just need more individual effort, we need better advice. We need lobbyists who can tell us effectively and impassively when we are simply going to lose, and it is time to salvage what we can, and when we are going to lose unless we temper our rhetoric. Sometimes (like last years Stupid Hollings Bills), we can kill a bad bill -- because the bill on its face is unneeded and is demonstrably dangerous. Othertimes we cannot.
Politics is a different system to hack, requiring significantly different skills. We need better political hackers, not more hackers trying to play politics.
The essential "property" attribute of "intellectual property" is this: the right to exclude. Like the right to have you ejected from my living room if you park there for lunch, my patent, copyright, trademark or trade secret ordinarily gives me the right to have you enjoined from infringing corresponding "exclusive" rights.
This right to exclude has some useful economic by-products that make up the package of incentives that are associated with the IP monopoly. An owner may use exclusive rights to exclude competitors from exploiting the technology to keep a competitive advantage, to license those rights to others to generate revenues, or to use exchanges of license to obtain freedom to act in other areas.
The idea is that the limitations on the IP monopoly (fair use in copyright, term in patents, and so forth) keep the exploitation of the rights in check, and the market can decide -- case by case -- as to the value of the property.
But there are other cases, where the very type of the IP makes the grant of an exclusive right inconsistent with the societal balance that IP is all about. In these cases, the Congress determines that it will permit the right to exist, but will not make the right exclusive -- the owner cannot prevent a user from using the right, but the user will have to pay something to proceed.
The difficulty with a so-called "compulsory" license, is that there is no market to determine its royalty price. The monopoly is treated much like any utility, and the government or some independent association is used to determine that price.
In short, a compulsory license is a license that the owner cannot prevent an individual from taking, subject to terms fixed by some independent agency. It is a mixed bag, yet another form of balancing the inherent conflicts of IP policy.
Microsoft has sought protection for a "programming language and compiler system capable of generating object code that performs comparably or better than C."
But if I'm a developer (of any type) I'm thinking "OK, but how does this help me?" Claim 1 is so broad it covers EVERYTHING I DO. If the patent issues in present form - and MS decides to enforce it - I am sunk. Fear sets in.
Look for prior art. Find it, and the fear goes away. Don't, and you should be properly concerned. You know what he is claiming, and if you can find art within the scope of a ridiculously broad claim, ideally your own, you are typically golden -- you will either invalidate the patent if it issues, or a narrower patent will issue that, under Festo, will not be entitled to protection under the Doctrine of Equivalents.
Then the uncertaintly. I start walking the halls mumbling to myself, "Should I abandon 2000 hours of programming and completely change what I am doing, or assume the patent office will substantially reduce the claim?"
A patent lawyer can help you in this regard. You have various options, including but not limited to putting art in the record. He can help you to evaluate your risk.
Then I start a serious effort into self-delusion and convince myself that "the patent office would never issue such a broad claim."
Then the doubt sets in.
If you have the art, you are fine. If you don't, you are not. If you want to stay a cynic about the process, I can't help that, but it doesn't guide how others should govern their conduct. If you want to do something about it, be happy that you know NOW what is coming, and prepare for what you can do about it. This is one of the virtues of the 18-month prepublication rule.
The article appears to confuse an issued patent with a published patent applications, citing to one of the latter, recently published application 20030028685.
The conditions necessary to obtain a published patent application are these: (1) file one and pay a filing fee, including the proper formal documents (like an inventor's declaration; and (2) wait 18 months. An application creates no presently enforceable rights, and none will accrue until the patent actually issues.
Indeed, by beginning with the wildly broad claims (and they are pretty astonishing, I'll admit), any narrowing amendments entered during prosecution are likely to give rise to a much more limited patent.
Let's not get hysterical before there is something to get hysterical about. The.mono plan for managing the inevitable patents, the plan so excoriated in the register article, is perfectly responsible and while risk is ever-present in developing interoperable code, perfectly workable. The fact of 18-month publication facilitates and permits actually permits present projects to begin early on its search for prior art.
Fears regarding the quoted paragraph [0101] are misguided. It is routine boilerplate and primarily precatory, of virtually no importance concerning the meaning of the claims.
I am told that some of these new decaffinated brands are just as tasty as the regular stuff. Let's not go nuts, at least not before there is a reason to go nuts.
My opinion? Music PLAYERS (iTunes, iPod, speakers) would not violate. iTMS *DOES*. (Well, there is a subtle distinction in that Apple serves as a store, but in the modern computer age, distribution through the internet is just as good as manufacturing/label.
And therein lies the difference. iTMS may entail the delivery and distribution of music, but doesn't include the name "Apple." The Apple name has been significantly diluted by the overlapping uses, and I anticipate that Apple Computer is fed up with overreaching demands and looking to make some law on this point.
Both sides have sound and interesting arguments. Time will tell.
Silly as this all seems, spamming is big bucks. Remove the money, remove the problem.
This is precisely my point.
But you can't do that by suing all over the globe. You will do that when you stop lying, stealing scum suckers from being able to contact anyone in the first place.
If you say so, but really, all you have done here is say so. Being able to sue people has a remarkably palliative effect on the extent to which they are willing to stick their necks out -- particularly if they have money. My view is that I don't need to get the "scum suckers," per se, to stop them, just the more traditional people with the money who are funding them.
Because spamming slime have no problem at all with forging anything they want. Without accountabillity, nothing changes.
You seem to think I am concerned about trailing people by means of forensic analysis of the e-mail. I am not.
Ultimately, some commercial interest is involved, and someone is receiving the money -- there is an account into which funds are transferred, and therein arises the accountability. By making civilly responsible those folks in the money chain, we obtain leverage to find those they support and pay -- and by making criminals of all of them, we either deter them or turn the less bad ones on the worse ones. As with all crime and bad acting . . ..
Nothing is a panacea. But nothing at all is nothing at all. I'd rather do something that might work somewhat better than the status quo, without invading meaningful civil liberties in the process.
The CFAA actually does deter a fair amount of hacking, as do laws governing murder. As a civil lawyer who does quite a bit of litigation in this arena, I can tell you that CFAA litigation is a tremendously powerful tool. Of course, murder is criminal, and wrongful death and assault are civily actionable, yet murder persists. Does this mean these laws are useless? probably not.
Everybody's spam mix is different, but the spam I see tends to come from folks trying to make quick bucks by collecting money with "legitimate" but stupid businesses, rather than by various means of fraud. The criminals are likely to persist no matter what, I agree -- but it would be nice to deter those who are not, and thereby reduce the noise and volume of spam, and with it, much of the harm.
Nothing will "suddenly fix everything," but the proposal suggested above would be both constitutional and fairly effective in improving the situation. I commend it to your attention.
. . . the tag is all you really need to provide a legitimate, constitutional anti-spam process, and that can work just fine under SMTP without adopting a new transport protocol. What if we simply adopted the convention that adding the following header:
X-DISTRIBUTION 100 7
to mean something like "this e-mail, or copies substantially similar thereto, has been mailed to fewer than 100 different e-mail addresses, excepting to the e-mail of a person who has affirmatively requested the distribution and has not subsequently withdrawn the request, within the past 7 days."
The proposition is true for virtually all ordinary e-mail, including list services, so that ordinary mail can routinely place the listed message without misrepresentation. However, virtually every piece of spam including the header would affirmatively misrepresent its means of distribution. User clients could filter for or against appropriate X-DISTRIBUTION headings.
Add to this a legal regime making it strongly actionable, not to send lots of unwanted mail, but to send mail misrepresenting the manner by which it has been sent. Because it punishes only false statements, does not require any speech be added to existing e-mail, while still permitting anonymouscommunication, the First Amendment considerations are obviated. Now make the penalties as bad as needed to deter -- make it a crime, provide powerful civil statutory damages and automatic attorney fees and so forth. Make the penalties apply to everyone down the line facilitating the spam, including the persons commissioning the spam and those contributing to its production
True, the process doesn't meaningfully deter truly anonymous spam that doesn't seek any reply or reaction -- but most spam DOES actually try to sell me something or get me to look at a web site, and so forth. Provide a means to sell or obtain information about the receiver to somboedy, and you have provided a honeypot hook.
Reducing the incentive to engage in commercial spam could significantly reduce the commercial interest that drives much of modern spam and, visible prosecution or judgments against contemptible spammers could suffice to dramtiacally impact the problem.
IEEE is actually seeking affirmative legislation regarding the enforceability of shrinkwrap agreements. The IEEE proposal would permit enforceability, but only to the extent the shrinkwrap conforms to certain reasonable norms, with some presently common overreaching provisions never permitted.
With computer programs, there simply is not a viable distinction between "function" and "content".
Why? Because you say so and feel it supports your position? Or are you just defining what you mean by "function" and "content"? A few years ago, when that argument compelled the 9th Circuit to preclude enforcement of export rules against Professor Bernstein, the distinction seemed very sound. I think it is so today. Clearly there *IS* a different between expressive use of the program and the functional use of the same.
In this sense, a program is no different from any recipe or method specification (unsurprisingly), for which there is well-developed jurisprudence. My problem is NOT that the Courts have adopted those distinctions, but that they have chosen to avoid the well-developed notions to date.
You see this as very easy -- but really haven't supported your statement that there is no difference, except to restate it. I see it as quite difficult and deep, just as, apparently, the California state courts and the Second and Ninth Circuits.
While we wrestle with the problem that seems to require no further thought of yours, feel free to use some of those spare cycles to offer reasons for your distinctions. Theory of Computation seems to have no problem distinguishing between a Godel number or other expressive representation for a function and the function itself, noting for example, and significantly, that there is no bijection between the two. The courts even seem willing to contemplate making legal distinctions of that kind, for sound policy reasons. Why can't you?
As for Bunner, the appeals court had it right: trade secret injunctions applied to third parties _are_ unconstitutional
The Supreme Court isn't final because it is infallible, it is of course only infallible because it is final. On this point, I disagree both with your trivialization of the rule in suit, AND the Supreme Court's analysis. I can see many cases where a party not bound by contract should be held accountable to preserve secrecy. Its just that the instant case probably (facts yet to be developed) isn't one of them.
But the courts don't care; trade secrets, copyright, the DMCA, etc, all trump free speech.
Of course that isn't the law, notwithstanding the amusing demagoguing that seems to be going around in these letters. Campbell v. Acuff-Rose is but one of a kazillion counter-examples.
Whining may be the worst, most ineffective form of advocacy. (And I'm no advocate anyway.) But it is no worse than any of the others. At the end of the day, ALL forms of advocacy, aside from those of the RIAA, fail.
You nihilism is ludicrous. In fact, MPAA couldn't win in Universal Studios v. Sony -- and the Stupid Hollings Bill was, in fact, defeated last year. Each was an example of prevailing advocacy.
Look, if you want to whine, whine. Don't complain, however, that I call your whining what it is, and point out its uselessness for solving our community's problems. You may be right -- my more subtle efforts might well be ineffective in the end as are yours ineffective now. But at least I shall really be trying.
What's even more amazing, in this case, is that it is Microsoft playing "oops, backups? whats that?"
Gosh, I don't know. Given their decidedly naive understanding of security and accessibility, I wouldn't hold them in such high esteem on backup policy.
If you say so. You know, as a lawyer who has agressively and powerfully fought on behalf of real government speech impositions in truly egregious situations, I find your oversimplification of the matter laughable. The truth is rather more interesting.
I agree with the implied, if overtrivialized, argument you seem to be making about the Second Circuit's analysis of the first amendment issues in the DeCSS cases. Of this much, however, I am certain -- your unsubtle analysis of an absolutist freedom of speech that does not acknowledge the differences between functional and expressive speech, their respective benefits to society and the balancing of protectible and unprotected expression will never hold sway -- indeed it never did.
You say "the age of freedom is truly over." As you see it, it never began. Copyright and trade secret injunctions have been holdding back expressive speech for hundreds of years now -- and yet somehow most of us have felt adequately free.
The difficulty with the hysterical whining about the Bunner case is this: ALL trade secret injunctions relating to ANY methods bar speech. Duh. If they didn't, there wouldn't be any secrets at all. The issue in Bunner, though not all that popular for some of our technie-co-demagogues as the first amendment argument, which was always difficult for this reason, is whether the reverse engineering was in fact actionable and whether the reverse engineerable content constituted a trade secret. The problem here, is that Bunner lost the fact questions at trial. On remand, he will have solid representation, and hopefully we will see justice in that matter. But frankly, the reductio ad absurdum of the "pure freedom fighters" misunderstands the nature of the law, both on the IP and on the first Amendment side.
I, too, dislike the analysis used by the CA Supremes -- but I am not sure they reached the wrong result legally. I would have explained it differently, but still, I acknowledge the difficulty of these issues. You see things one way, and the judges don't have the convenience of adopting a single ideology and policy in finding their results.
But this much is certain, the whining is the absolute worst, most ineffective form of advocacy. It may make you feel happy, as losers, to whine about "the age of freedom" being over. Me, I prefer to win the day -- and this requires understanding and acknowledging the complexity of things -- and finding an argument that might actually work some day.
This isn't your strongest argument against software patents. Despite decades of litigation in the arena of software patents now (actually, since the early 80's Diamond v. Diehr case), not a single first amendment case has been raised. In sharp contrast, there have been scads of First Amendment issues raised in copyright. Why?
This is easy. Software most certainly is expressive conduct, but it is also most certainly functional as well. Used in connection with a machine for the purpose of the machine's execution, the expressive element of the code is not as signficant as its utility. Used for the purpose of explaining or conveying an algorithm, the utility is not as significant as its utility.
It is the difference between discussing the making of a bomb, and the building and use of one. The courts have finally glommed expressly on this distinction -- it is time our community (even our zealotes) acknowledged it.
Back to copyright and patent. Copyrights, protect expressive works of authorship fixed in tangible media, and it does it by governing how the work is copied, distributed or modified! Patents, in contrast, govern only the making, using or selling of claimed processes. Utlimately, the protection of copyrights are far more invasive in the first amendment sense than are patents,. at least to the extent of limiting the expressive use, not functional uses of the code. And then, of course, we have the recent Bunner decision in California, where the Supreme Court found that where a trade secret is embodied in code, the first amendment is essentially trumped by disclosure of the ideas in the work.
Indeed, most patent claims do not govern expressive uses of the program writing itself, but rather only the methods embodied therein -- you probably don't infringe unless you use your writings in connection with a machine to use its function, not its expression.
That said, the previous sentence isn't completely true: under patent law, the use of text to contribute to or induce infringement by another might be actionable if you expressed yourself with the intent of having another use the code by way of infringement. Moreover, there are such things as Beauregard claims, claims that are directed to the code itself embodied in fixed medium -- and these might be infringed by copyright-like distribution. Finally, copyright, at least, has a fair use exception that captures many first amendment uses (although it has been found of little utility in the DeCSS cases for example).
Yet, the case has yet to happen where a plaintiff has really hit on a first amendment patent case, despite extensive first amendment litigation in the context of copyright and trade secrets. Why?
Several reasons, perhaps. It is hard to use patents, even beauregard claims, to shut down speech. The litigation advantages in trade secret and copyright are not present: it is very difficult to get preliminary injunctions in a patent case, the asset is seriously at risk each time it is asserted and it is VERY expensive to prosecute. Unlike copyright and trade secrets, the first amendment/patent interface might well be open territory for creation of a judge-made first amendment defense. Unlike copyright and trade secrets, the purposes of the patent can well be satisfied without a blatant first amendment invasion.
In short, the argument isn't unique, or even particularly applicable to patents -- it spans each and every limtiation on the distribution of code, ranging from copyright to trade secrets. To the extent code is code and expression, the threats of copyright and expansion of copyright into non-IP protection, like DMCA are far more dangerous to freedom of expression.
Slashdot Mirror
Fully cognizant that it was antimajoritarian, the Constitutional Congress, after fairly extensive debate, adopted the bill of rights, which was ratified and made part of our organic document.
The fundamental premise of the bill of rights is precisely this: 50 million people CAN be wrong. The majority rules in virtually every area of our life, but cannot overreach into the protected areas set forth in the bill of rights. That requires a special supermajority of both houses and ratification of 3/5 of the states. Nothing less will do.
While a reasonable person may dispute whether this federal District Court Judge was correct, it is now for the Judiciary, particularly because they are appointed for life and not subject to the political whims of 50 million people who will make that call. There are stopgaps behind stopgaps. If one judge is wrong, a panel of three Circuit judges can correct it. If they are wrong, an en banc panel of the Circuit Court might correct it. And if they are wrong, and it matters, the Supreme Court can reach and give final breath into the result.
And if you don't like that, you will need a whole lot more than 50 million people, but certainly, you might try, to get a constitutional amendment passed.
I have no problem with your thinking that the Judge is wrong -- I haven't looked at the opinion yet, but the reports I have seen don't seem right to me either. Just don't pretend that there is anything unamerican or inappropriate about what this judge did.
Indeed, what the Judge did in this case is distinctly and clearly American -- exercise a special stopgap to keep a mob from controlling American free speech. Right or wrong from issue to issue, the founders got it right as a structure for organizing society. Majority rules, except where they shouldn't. Damned brilliant idea.
Alas and alack, Federal law and the law of most states provide for the legitimacy of an electronic record as a "signed writing" within the meaning of the law. Microsoft itself expressly lobbied for the Federal E-sign statute.
Of course. I was referring to the article rather than the particular opinion, which had a number of Kent snippets. They are both a hoot, no doubt.
Judge Kent is bar far one of the funniest judges on the federal bench. I strongly comment a quick read of his opinion in this case, which concerned a motion drafted in crayon.
actually, i suppose it woulde be for attacking someone whose name sounds like yours but is spelled differently.
You are certainly correct that this colloquy wasn't worth a spell check.
Please forgive me for presuming that you meant what you wrote in the post to which I responded. Despite the uncalled-for name-calling, you make two salient points: (i) many slashdotters are much smarter than the arguments they post here; and (ii) it is foolish to judge someone quickly based on a few posts. In view of your evaluation of me: pot-kettle-black.
If all of our advocacy were moderately placed and directed to the merits, fully supported and completely credible, you wouldn't feel the need to engage in Slashdot hyperbolae -- you might have won the day where it counted.
My criticisms should not be taken as a personal assault on you, but rather on the vast majority of our colleagues and, alas, virtually all of the anti-patent advocates who DID lobby the Parliament with blather and platitudes in lieu of argument.
Since we agree in principle, or so you say, there really isn't much more to say. I am pleased you are a solid balanced advocate. Alas, most of those who were players in this present debate were not, and THAT is why the resolution passed by a huge margin. The vast majority of postings in this forum presumed, cynically and naively, that the reason things went as they did, was cluelessness and self-interest. Again. Pot-kettle-black.
Seriously, one reason this bill passed without a sweat is simple: the anti-patent advocacy sucked. Filled with ridiculous claims of a parade of horribles that havent actually happened in the US despite nearly twenty-five years of software patents, the rhetoric fell flat on its own weight. Arguments that play well on Slashdot simply do not resonate and, quite frankly, are trivially shut down in a more moderate forum. You might as well have been donating to a pro-patent PAC by lending this form of advocacy to the anti-patent movement.
The antis made the wrong move here -- it was not to oppose, but to ameliorate. Not to speak in ridiculous and unsupportable grand strokes, but to limit the argument to statements that the balance is wrong, and needs to be carefully weighed. Or, if you REALLY believed your bullshit, to set up a sunset upon the happening of the parade of horribles, as a compromise.
The move was anything but to oppose completely a well-reasoned and more moderate bill, without offering a plausible alternative.
The antis here didn't get it. IP is ALWAYS a balancing of interests -- there is ALWAYS a winner and loser -- and there is ALWAYS some cases of problems arising from the system. So what if that is the case -- that actually is the point of IP law -- to strike an economic structure that is -- on balace -- more favorable to society as a whole than an unregulated commons of ideas and invention.
What the antis forgot here, is that this was NOT a referendum on the patent system -- the assumptions that a patent system is a good thing was not only established, but fundamental to the issues -- the question was not whether patent policy is good or bad, but whether society is better off if these good policies were extended to Information Technology inventions. Thus, on the spectrum of three primary arguments:
only the second could have any force or meaning. Almost every argument focused on challenging fundemental assumptions that support the patent system, or lamenting what happens if a bad patent were issued. Neither could be persuasive in this forum. Thus, the overarching demagoguing we saw here was ignored and pointless.
The argument, really the only play, is to acknowledge that --- to argue within that structure -- and to point out how the balance may be disturbed by new or existing rules, with meaningful alternatives that would correct the shortcomings.
Another opportunity for IP moderation was lost, because children wanted to fight in their playground of ideas. Get with it -- these arguments only win in Slashdot. And slashdotters don't get to vote on the laws.
Advocacy is not only about getting motivated people to march -- it is primarily about persuading moderates and those on the other side to see clearly your position. Nothing I have seen here indicates that the anti-software-patent movement has learned anything from its now twenty-five-years of failure to get anything done.
Sure, it must make you feel better to play the cynic or nihilist and assume that: (1) you must be right; and (2) they must have been corrupted by money. I'd just as soon you set those feelings aside, stop whining, and go to the beach or do something else productive -- so that those of us who actually do have arguments that can make a difference might get something done.
This is a prime example of government and business running rough-shod over the little guy. There will be no room for independent contractors or small software shops - or open source as the screws are tightened...
All actual evidence to the contrary.
1) Diamond v. Diehr, the Supreme Court case that opened the floodgates in the United States, came down almost 25 years ago, in March of 1981. Somehow, the record does not demonstrate a dearth of independent contractors, small software shops or lack of open source. Indeed, the height of the open source movement occurred in the prime of the software patent era.
2) The record verdict in patent infringement cases, when I last checked, remains STAC v. Microsoft, in which Microsoft (not the tinyist of companies), lost to the virtually bankrupt estate of tiny STAC.
3) The anti-patent movement has no serious traction among small businesses. Despite a kazillion chambers of commerce and small business associations across the nation -- all of whom have significant advocacy budgets, there is no meaningful and identifiable anti-patent constituency.
Quite seriously, the laws could use some trimming back, but so long as demagoguery such as this e-mail persists as the primary form of anti-patent advocacy, you guys might as well be donating to the pro-patent PACs. The ONLY way to be taken seriously, is to make arguments that stick, arguments that make sense, and arguments that are likely to lead to meaningful reform.
These parade of horribles arguments were laughed out of the Parliament, for one simple reason: U.S. Software remains vital despite 25 years of software patents.
By spending all of your energy making arguments that can't win, you will never stop the juggernaut, who need only make routine, defensible and pedestrian arguments to win the day. Challenge them more fundamentally -- make more modest demands and compromises -- and then you might have hopes for some change.
In a real sense, how "extreme" the concerns of the community in favor of freedom for computer users and developers are completely irrelevant.
No, the concerns become irrelevant when we make extreme and unsupportable statements. Take extreme views, and get ignored. You may think you need to go to a new country -- I have quite effectively lobbied against the very interests you claim to be untouchable -- and it was not by taking extreme positions.
Your nihilism is disturbing.
they will not voluntarily suspend SiteFinder.
They certainly didn't refuse. The letter simply stated that they felt it was premature to do so. Indeed, they might never acceed, but I was infuriated at Varisign when I read that they said the wouldn't voluntarily suspend, and then angry at the story when I realized this was a dangerous paraphrase.
not more hackers playing politics.
I have seen so many arguments alleging cluelessness on the parts of politicians, simply because you disagree with their positions and where in the end they might come out. This is naive and arrogant in the extreme. And the more we do this, the more we actually help those seeking stronger technology regulation. What fools we can be sometimes.
In the ongoing debates, I have pointed out the hopelessness and fallacy of taking extreme and unprovable positions in opposition to a bil, even though you may well believe deeply in the righteousness and correctness of your position. Politics doesn't work that way -- and neither does logic.
There is a fundamental difference between offering strong and nonfalsifiable rhethoric and making a strong and provable case. The problem is that a single plausible potential counterexample can shatter the credibility of the former. If you overreach with your rhetoric, you will simply talk yourself out of the debate -- as soon as someone begins to doubt the certainty of an extreme position, they wilt and start counting votes.
There is also a fundamental difference between making a strong and provable case that something might happen, and making a strong political case that it matters whether it happens. Even if you can demonstrate that bill A might cause effect B, you have to go much further, and show that the costs of B outweigh the benefits of passing A.
Finally, there are times to realize that something will happen, because a constiuency feels a need for something to happen, and that it is more important to have the bill that WILL be passed, not be the worst it can be.
ACM and academic groups made this mistake during DMCA debates in the US, missing many opportunities to slow down the train in the foolish hope of stopping it altogether. The end result is that it was almost the worst of all possible bills. The few gracious benefits derived from the efforts of those who fought for crypto and reverse engineering exceptions. Much more could have been done, but for the arrogance of those who thought they could kill it dead with raw rhetoric.
We don't just need more individual effort, we need better advice. We need lobbyists who can tell us effectively and impassively when we are simply going to lose, and it is time to salvage what we can, and when we are going to lose unless we temper our rhetoric. Sometimes (like last years Stupid Hollings Bills), we can kill a bad bill -- because the bill on its face is unneeded and is demonstrably dangerous. Othertimes we cannot.
Politics is a different system to hack, requiring significantly different skills. We need better political hackers, not more hackers trying to play politics.
The essential "property" attribute of "intellectual property" is this: the right to exclude. Like the right to have you ejected from my living room if you park there for lunch, my patent, copyright, trademark or trade secret ordinarily gives me the right to have you enjoined from infringing corresponding "exclusive" rights.
This right to exclude has some useful economic by-products that make up the package of incentives that are associated with the IP monopoly. An owner may use exclusive rights to exclude competitors from exploiting the technology to keep a competitive advantage, to license those rights to others to generate revenues, or to use exchanges of license to obtain freedom to act in other areas.
The idea is that the limitations on the IP monopoly (fair use in copyright, term in patents, and so forth) keep the exploitation of the rights in check, and the market can decide -- case by case -- as to the value of the property.
But there are other cases, where the very type of the IP makes the grant of an exclusive right inconsistent with the societal balance that IP is all about. In these cases, the Congress determines that it will permit the right to exist, but will not make the right exclusive -- the owner cannot prevent a user from using the right, but the user will have to pay something to proceed.
The difficulty with a so-called "compulsory" license, is that there is no market to determine its royalty price. The monopoly is treated much like any utility, and the government or some independent association is used to determine that price.
In short, a compulsory license is a license that the owner cannot prevent an individual from taking, subject to terms fixed by some independent agency. It is a mixed bag, yet another form of balancing the inherent conflicts of IP policy.
Microsoft has sought protection for a "programming language and compiler system capable of generating object code that performs comparably or better than C."
But if I'm a developer (of any type) I'm thinking "OK, but how does this help me?" Claim 1 is so broad it covers EVERYTHING I DO. If the patent issues in present form - and MS decides to enforce it - I am sunk. Fear sets in.
Look for prior art. Find it, and the fear goes away. Don't, and you should be properly concerned. You know what he is claiming, and if you can find art within the scope of a ridiculously broad claim, ideally your own, you are typically golden -- you will either invalidate the patent if it issues, or a narrower patent will issue that, under Festo, will not be entitled to protection under the Doctrine of Equivalents.
Then the uncertaintly. I start walking the halls mumbling to myself, "Should I abandon 2000 hours of programming and completely change what I am doing, or assume the patent office will substantially reduce the claim?"
A patent lawyer can help you in this regard. You have various options, including but not limited to putting art in the record. He can help you to evaluate your risk.
Then I start a serious effort into self-delusion and convince myself that "the patent office would never issue such a broad claim."
Then the doubt sets in.
If you have the art, you are fine. If you don't, you are not. If you want to stay a cynic about the process, I can't help that, but it doesn't guide how others should govern their conduct. If you want to do something about it, be happy that you know NOW what is coming, and prepare for what you can do about it. This is one of the virtues of the 18-month prepublication rule.
The article appears to confuse an issued patent with a published patent applications, citing to one of the latter, recently published application 20030028685.
.mono plan for managing the inevitable patents, the plan so excoriated in the register article, is perfectly responsible and while risk is ever-present in developing interoperable code, perfectly workable. The fact of 18-month publication facilitates and permits actually permits present projects to begin early on its search for prior art.
The conditions necessary to obtain a published patent application are these: (1) file one and pay a filing fee, including the proper formal documents (like an inventor's declaration; and (2) wait 18 months. An application creates no presently enforceable rights, and none will accrue until the patent actually issues.
Indeed, by beginning with the wildly broad claims (and they are pretty astonishing, I'll admit), any narrowing amendments entered during prosecution are likely to give rise to a much more limited patent.
Let's not get hysterical before there is something to get hysterical about. The
Fears regarding the quoted paragraph [0101] are misguided. It is routine boilerplate and primarily precatory, of virtually no importance concerning the meaning of the claims.
I am told that some of these new decaffinated brands are just as tasty as the regular stuff. Let's not go nuts, at least not before there is a reason to go nuts.
My opinion? Music PLAYERS (iTunes, iPod, speakers) would not violate. iTMS *DOES*. (Well, there is a subtle distinction in that Apple serves as a store, but in the modern computer age, distribution through the internet is just as good as manufacturing/label.
And therein lies the difference. iTMS may entail the delivery and distribution of music, but doesn't include the name "Apple." The Apple name has been significantly diluted by the overlapping uses, and I anticipate that Apple Computer is fed up with overreaching demands and looking to make some law on this point.
Both sides have sound and interesting arguments. Time will tell.
Silly as this all seems, spamming is big bucks. Remove the money, remove the problem.
This is precisely my point.
But you can't do that by suing all over the globe. You will do that when you stop lying, stealing scum suckers from being able to contact anyone in the first place.
If you say so, but really, all you have done here is say so. Being able to sue people has a remarkably palliative effect on the extent to which they are willing to stick their necks out -- particularly if they have money. My view is that I don't need to get the "scum suckers," per se, to stop them, just the more traditional people with the money who are funding them.
Because spamming slime have no problem at all with forging anything they want. Without accountabillity, nothing changes.
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You seem to think I am concerned about trailing people by means of forensic analysis of the e-mail. I am not.
Ultimately, some commercial interest is involved, and someone is receiving the money -- there is an account into which funds are transferred, and therein arises the accountability. By making civilly responsible those folks in the money chain, we obtain leverage to find those they support and pay -- and by making criminals of all of them, we either deter them or turn the less bad ones on the worse ones. As with all crime and bad acting . . .
Nothing is a panacea. But nothing at all is nothing at all. I'd rather do something that might work somewhat better than the status quo, without invading meaningful civil liberties in the process.
The CFAA actually does deter a fair amount of hacking, as do laws governing murder. As a civil lawyer who does quite a bit of litigation in this arena, I can tell you that CFAA litigation is a tremendously powerful tool. Of course, murder is criminal, and wrongful death and assault are civily actionable, yet murder persists. Does this mean these laws are useless? probably not.
Everybody's spam mix is different, but the spam I see tends to come from folks trying to make quick bucks by collecting money with "legitimate" but stupid businesses, rather than by various means of fraud. The criminals are likely to persist no matter what, I agree -- but it would be nice to deter those who are not, and thereby reduce the noise and volume of spam, and with it, much of the harm.
Nothing will "suddenly fix everything," but the proposal suggested above would be both constitutional and fairly effective in improving the situation. I commend it to your attention.
to mean something like "this e-mail, or copies substantially similar thereto, has been mailed to fewer than 100 different e-mail addresses, excepting to the e-mail of a person who has affirmatively requested the distribution and has not subsequently withdrawn the request, within the past 7 days."
The proposition is true for virtually all ordinary e-mail, including list services, so that ordinary mail can routinely place the listed message without misrepresentation. However, virtually every piece of spam including the header would affirmatively misrepresent its means of distribution. User clients could filter for or against appropriate X-DISTRIBUTION headings.
Add to this a legal regime making it strongly actionable, not to send lots of unwanted mail, but to send mail misrepresenting the manner by which it has been sent. Because it punishes only false statements, does not require any speech be added to existing e-mail, while still permitting anonymouscommunication, the First Amendment considerations are obviated. Now make the penalties as bad as needed to deter -- make it a crime, provide powerful civil statutory damages and automatic attorney fees and so forth. Make the penalties apply to everyone down the line facilitating the spam, including the persons commissioning the spam and those contributing to its production
True, the process doesn't meaningfully deter truly anonymous spam that doesn't seek any reply or reaction -- but most spam DOES actually try to sell me something or get me to look at a web site, and so forth. Provide a means to sell or obtain information about the receiver to somboedy, and you have provided a honeypot hook.
Reducing the incentive to engage in commercial spam could significantly reduce the commercial interest that drives much of modern spam and, visible prosecution or judgments against contemptible spammers could suffice to dramtiacally impact the problem.
IEEE is actually seeking affirmative legislation regarding the enforceability of shrinkwrap agreements. The IEEE proposal would permit enforceability, but only to the extent the shrinkwrap conforms to certain reasonable norms, with some presently common overreaching provisions never permitted.
With computer programs, there simply is not a viable distinction between "function" and "content".
Why? Because you say so and feel it supports your position? Or are you just defining what you mean by "function" and "content"? A few years ago, when that argument compelled the 9th Circuit to preclude enforcement of export rules against Professor Bernstein, the distinction seemed very sound. I think it is so today. Clearly there *IS* a different between expressive use of the program and the functional use of the same.
In this sense, a program is no different from any recipe or method specification (unsurprisingly), for which there is well-developed jurisprudence. My problem is NOT that the Courts have adopted those distinctions, but that they have chosen to avoid the well-developed notions to date.
You see this as very easy -- but really haven't supported your statement that there is no difference, except to restate it. I see it as quite difficult and deep, just as, apparently, the California state courts and the Second and Ninth Circuits.
While we wrestle with the problem that seems to require no further thought of yours, feel free to use some of those spare cycles to offer reasons for your distinctions. Theory of Computation seems to have no problem distinguishing between a Godel number or other expressive representation for a function and the function itself, noting for example, and significantly, that there is no bijection between the two. The courts even seem willing to contemplate making legal distinctions of that kind, for sound policy reasons. Why can't you?
As for Bunner, the appeals court had it right: trade secret injunctions applied to third parties _are_ unconstitutional
The Supreme Court isn't final because it is infallible, it is of course only infallible because it is final. On this point, I disagree both with your trivialization of the rule in suit, AND the Supreme Court's analysis. I can see many cases where a party not bound by contract should be held accountable to preserve secrecy. Its just that the instant case probably (facts yet to be developed) isn't one of them.
But the courts don't care; trade secrets, copyright, the DMCA, etc, all trump free speech.
Of course that isn't the law, notwithstanding the amusing demagoguing that seems to be going around in these letters. Campbell v. Acuff-Rose is but one of a kazillion counter-examples.
Whining may be the worst, most ineffective form of advocacy. (And I'm no advocate anyway.) But it is no worse than any of the others. At the end of the day, ALL forms of advocacy, aside from those of the RIAA, fail.
You nihilism is ludicrous. In fact, MPAA couldn't win in Universal Studios v. Sony -- and the Stupid Hollings Bill was, in fact, defeated last year. Each was an example of prevailing advocacy.
Look, if you want to whine, whine. Don't complain, however, that I call your whining what it is, and point out its uselessness for solving our community's problems. You may be right -- my more subtle efforts might well be ineffective in the end as are yours ineffective now. But at least I shall really be trying.
What's even more amazing, in this case, is that it is Microsoft playing "oops, backups? whats that?"
Gosh, I don't know. Given their decidedly naive understanding of security and accessibility, I wouldn't hold them in such high esteem on backup policy.
The age of freedom is truly over.
If you say so. You know, as a lawyer who has agressively and powerfully fought on behalf of real government speech impositions in truly egregious situations, I find your oversimplification of the matter laughable. The truth is rather more interesting.
I agree with the implied, if overtrivialized, argument you seem to be making about the Second Circuit's analysis of the first amendment issues in the DeCSS cases. Of this much, however, I am certain -- your unsubtle analysis of an absolutist freedom of speech that does not acknowledge the differences between functional and expressive speech, their respective benefits to society and the balancing of protectible and unprotected expression will never hold sway -- indeed it never did.
You say "the age of freedom is truly over." As you see it, it never began. Copyright and trade secret injunctions have been holdding back expressive speech for hundreds of years now -- and yet somehow most of us have felt adequately free.
The difficulty with the hysterical whining about the Bunner case is this: ALL trade secret injunctions relating to ANY methods bar speech. Duh. If they didn't, there wouldn't be any secrets at all. The issue in Bunner, though not all that popular for some of our technie-co-demagogues as the first amendment argument, which was always difficult for this reason, is whether the reverse engineering was in fact actionable and whether the reverse engineerable content constituted a trade secret. The problem here, is that Bunner lost the fact questions at trial. On remand, he will have solid representation, and hopefully we will see justice in that matter. But frankly, the reductio ad absurdum of the "pure freedom fighters" misunderstands the nature of the law, both on the IP and on the first Amendment side.
I, too, dislike the analysis used by the CA Supremes -- but I am not sure they reached the wrong result legally. I would have explained it differently, but still, I acknowledge the difficulty of these issues. You see things one way, and the judges don't have the convenience of adopting a single ideology and policy in finding their results.
But this much is certain, the whining is the absolute worst, most ineffective form of advocacy. It may make you feel happy, as losers, to whine about "the age of freedom" being over. Me, I prefer to win the day -- and this requires understanding and acknowledging the complexity of things -- and finding an argument that might actually work some day.
This isn't your strongest argument against software patents. Despite decades of litigation in the arena of software patents now (actually, since the early 80's Diamond v. Diehr case), not a single first amendment case has been raised. In sharp contrast, there have been scads of First Amendment issues raised in copyright. Why?
This is easy. Software most certainly is expressive conduct, but it is also most certainly functional as well. Used in connection with a machine for the purpose of the machine's execution, the expressive element of the code is not as signficant as its utility. Used for the purpose of explaining or conveying an algorithm, the utility is not as significant as its utility.
It is the difference between discussing the making of a bomb, and the building and use of one. The courts have finally glommed expressly on this distinction -- it is time our community (even our zealotes) acknowledged it.
Back to copyright and patent. Copyrights, protect expressive works of authorship fixed in tangible media, and it does it by governing how the work is copied, distributed or modified! Patents, in contrast, govern only the making, using or selling of claimed processes. Utlimately, the protection of copyrights are far more invasive in the first amendment sense than are patents,. at least to the extent of limiting the expressive use, not functional uses of the code. And then, of course, we have the recent Bunner decision in California, where the Supreme Court found that where a trade secret is embodied in code, the first amendment is essentially trumped by disclosure of the ideas in the work.
Indeed, most patent claims do not govern expressive uses of the program writing itself, but rather only the methods embodied therein -- you probably don't infringe unless you use your writings in connection with a machine to use its function, not its expression.
That said, the previous sentence isn't completely true: under patent law, the use of text to contribute to or induce infringement by another might be actionable if you expressed yourself with the intent of having another use the code by way of infringement. Moreover, there are such things as Beauregard claims, claims that are directed to the code itself embodied in fixed medium -- and these might be infringed by copyright-like distribution. Finally, copyright, at least, has a fair use exception that captures many first amendment uses (although it has been found of little utility in the DeCSS cases for example).
Yet, the case has yet to happen where a plaintiff has really hit on a first amendment patent case, despite extensive first amendment litigation in the context of copyright and trade secrets. Why?
Several reasons, perhaps. It is hard to use patents, even beauregard claims, to shut down speech. The litigation advantages in trade secret and copyright are not present: it is very difficult to get preliminary injunctions in a patent case, the asset is seriously at risk each time it is asserted and it is VERY expensive to prosecute. Unlike copyright and trade secrets, the first amendment/patent interface might well be open territory for creation of a judge-made first amendment defense. Unlike copyright and trade secrets, the purposes of the patent can well be satisfied without a blatant first amendment invasion.
In short, the argument isn't unique, or even particularly applicable to patents -- it spans each and every limtiation on the distribution of code, ranging from copyright to trade secrets. To the extent code is code and expression, the threats of copyright and expansion of copyright into non-IP protection, like DMCA are far more dangerous to freedom of expression.