. . . if they don't in 20 days, Red Hat will be entitled to a default judgment. Filing a response to a complaint isn't news, although missing their deadline -- THAT would be news.
False! Copyright may or may not be the issues. Copyright is the issue, unless the issues is trade secres, trade dress or design protection for the user inteface or patents or contracts or any of a kazillion issues underlying the work. Heck, if names or images appear on the work, there may even be right to publicity issues. The corporation might not actually own the IP, or may not control it. You simply cannot know from the facts recited whether "the issue is copyright."
If the copyright is owned by a corporation that no longer exists, then there's nobody to enforce it.
False! The personal property of a corporation that is liquidated is divided among its investors, depending on the articles and agreements of the individuals and/or state law. The copyrights will be distributed in accordance with those agreements, and with it -- the right to enforce.
If you release the code to the public domain (because I assume that you can't legally claim the copyright)
Only the owner of the copyright can dedicate it to the public domain.
I can fantasize all sorts of facts completely consistent with your story that would result in dramatically different answers. It just depends.
It depends on who owned the assets before the financial worries (determining clearance and ownership of any work is not always a trivial matter; who wrote the code, were they contractors or consultants, if contractors, what do the work for hire agreements say, how about other ip, what was it derived from, any third party incorporated codes, etc).
It depends on the structure of the company. Corporation, partnership, llp.
It depends how it shut down. Was it liquidated, with assets distributed? Bankruptcy.
It depends upon the agreements of everybody who worked on the software, and whether there were provisions that dealt with whatever eventualities occurred.
It depends upon the nation and, sometimes, the state in which these events occurred.
It depends.
Only a lawyer can ask the questions, determine all the issues and answer them, if an answer is available.
I am no expert on these issues -- isn't there something bizarre in the corpus of "mere entitlements" that can be taken away without compensation, and "property interests" which cannot be? or vice versa?
I read the article again to be sure, but I don't think the MPAA said anything about theft of automobiles. Your criminal responsibility, and your civil liability, for the conduct of your friend in that scenario may be dependent on a number of facts, but it frankly doesn't matter -- we are discussing copyright infringement.
To that end, you face serious problems with your jus tertii defense: (1) Copyright infringement requires no state of mind, not intent, not knowledge, not even negligence -- liability is strict liability; (2) even when you are not liable for copyright infringement, you can be liable for contribution and vicarious infringement.
Trust me, as between your legal analysis and MPAA's, theirs is far closer to the mark. Of course, each situtation depends heavily on the particular facts of each case -- however the "myth" that slashdotters seem so anxious to keep alive, that there is no liability for file sharing as a general proposition, is wrong.
It did not create "intellectual property", a highly offensive misnomer, it created a temporary loan from the public domain, to which all ideas belong once expressed.
Nonsense, the common law treated Copyright as intangible personal property since the adoption of the Statute of Anne, long before there was a United States or a United States Constitution. There are no significant differences between
Perhaps copyright should simply be abolished. Yes, that would take an amendment, but overturning extentions would only take simple legislation. Too bad the greedy profiteers who oppose it own congress. We need to vote the bums out!
Abolishment of Copyright clearly does not require an amendment to the Constitution -- nothing in the Constitution guarantees any author the right to the monopoly described in Article I, Section 8 -- the power to grant or deny Copyright is within the sound discretion of the Congress. An interesting question of whether the abolishment would constitute a "taking," however remains -- if the Congress took Disney's rights to its films, perhaps Disney would have rights under eminent domain to the value of the asset at the time of the taking.
Such speculations are pointless, for this will never happen, and so we needn't really spend too much time counting Angels on the head of the pin.
Article I, Section 8 of the Constitution is simply an enumeration of some of the powers granted to the Legislative Branch. In other words, it simply is a grant to the Congress of the power to pass a Copyright Act -- it does not require one. This is a point long-settled by the Supreme Court -- there is no right of an author, under the Constitution or otherwise, to any exclusive rights in Copyright, unless and until the Congress says so.
Normally I'd agree, but the typical technical patent simply is a restatement of the abstract, in all possible permutations of basic hardware and software setups
This is almost never true, in my experience, and these types of patents represent the corpus of my practice. Care to take one in particular? (Hint: the patent in the article isn't your best example.)
Generally speaking, while that may be useful in non-software domains, software patent claims are uselessly vague.
Nice pabulum, but what do you mean? Useless to whom? I litigate software arts patents all the time, and I am here to tell you that these claims are typically well-understood when applied with respect to relevant prosecution histories, specifications and the applicable law. Obviously you disagree, but you are mistaken about what is necessary to "certainly invalidate" a claim.
Just because patents make no sense to you, doesn't mean that they don't make sense.
This is a well-understood problem: enforcement of intellectual property rights at a large, national scale. ASCAP and BMI have been doing this for decades (except for a brief 4-5 year hiatus while successfully challenging a statute outlawing the practice).
BSA has been doing likewise.
This kind of litigation becomes a commodity practice, easily executed because of the verisimilitude of the litigation facts. Indeed, with a decent database and document assembly program, you can pretty much automate this, and train lawyers to do it at relatively low cost.
Because prevailing plaintiffs collect attorney fees almost 100% of the time, the hammer of this kind of litigation is significant: "Here's the deal, you can settle this case in advance for $XX,000. We can do this today, if you like, or if you would rather firght, tomorrow. I'll leave this offer open until a week before trial. The difference is that the clock is running -- the offer goes up as our attorney fee bill goes up. Let us know when you are too tired to go on."
Oh, and by the way, a judgment for Copyright infringement is not dischargable in bankruptcy.
Your spam may be my correspondence -- I may want to get mail from those whose conduct you find abhorrent. Today, a network may responsibly be censoring only unwanted and unsolicited commercial e-mail. Next week, the powers-that-be-in-the-networks start censoring geek news.
To protect our liberties, spam control should be decentralized -- as close to the last mile as possible. Yes, of course, this means that the supposed great harm of spam -- huge volume transmissions through the network -- will not be interdicted closer to the source. In my view, an effective end-point spam model is as likely to reduce volume as a network centered model: the idea is to reduce the INCENTIVE to spam -- that will reduce the volume.
Centralized technical measures simply invite the spam wars to continue, provide centralized points of failure, will not diminish spam, and will assure that powers-that-be have ample new abilities to censor speech.
The United States doesn't support droits morale (moral rights) such as rights to attribution and to maintain the integrity of a work, except in very narrow cases.
Intellectual property *is* all about economic incentive. So what?
People who are engaging in uncompensated file-sharing ARE subject to liability. What, precisely, is your problem with that?
I would far rather see serious enforcement against freeloaders who adopted an attitude that there are rights to receive data merely because it can be taken, than see the other backlash, which is the neutering and crippling of important technologies because the freeloaders have given RIAA sufficient --and legitimate-- bases to argue to the Congress for things like The Stupid Hollings Bill.
Get with it -- RIAA is, at last, doing the right thing. Better they sue infringers than technologies. It took the SONY Betamax case to get MPAA to change their model to make videotapes available at reasonable prices -- and everybody won. Likewise it will be with music.
But right now, if RIAA gets to argue they made the blitz and it was a bust, count on it -- there will never be another Betamax -- technology regulation will overwhelm intellectual property law, and it won't be a good thing.
A description in an abstract has no legal bearing on the scope of the patent granted, nor does excerpts of language drawn from the specification. The claim is the thing. Arguing in general terms from a broad sweeping apprimation of the patent craft is simply quibbling about a straw man. As to your conclusion, you might be right, you might be wrong -- but you haven't come anywhere near making a slightly credible case.
If you think a claim from a patent is valid, spell out the claim, offer a plausible construction of the claim and tell us what is the prior art. then we have a useful conversation going.
Note the different uses of terms "deep linking not illegal" and "deep linking illegal." The truth is almost always more interesting. Although some early cases in the UK (Shetland Times was it?) seemed to suggest courts might consider deep linking to be a form of IP violation, nobody seems to have taken this point terribly seriously as a general principal.
This does not mean that deep linking is somehow a blessed activity that can not give rise to liability, the HTML:
<A HREF="http://their.support.site">See my support site for further information</A>
or "See the sight of the murderer" or the like might well give rise to claims for unfair competition or defamation under appropriate circumstances. Thus, while deep linking, without more, is probably not actionable in most contexts, there are always going to be contexts where a deep link can be entirely actionable.
Can you cite that? I'm not saying you're wrong, I've just never heard of anything like that.
I'm quite right. It is set forth in the Federal Rules of Civil Procedure, Rule 26 ("sue or be sued"), an equal opportunity monstrosity.
And it seems wrong.
You have made very clear how much you don't like it. That doesn't make it right or wrong, however. It certainly doesn't make it illegal.
If this is the case, why doesn't the RIAA use this tactic?
I presume they decided it was unhelpful for them to provide anyone with a mailing list of all the defendants, and costly for them to seek class action proceedings.
Being wrong within an allegation doesn't make it objectively baseless, that is a sham.
It does make it objectiveley baseless and a sham if the allegation is made without any due diligence in determining whether the allegation is correct.
If you say so. I'm here to tell you that what you are stating wouldn't likely make the cut in the United States to avoid dismissal on pleadings or summary judgment dismissal of a barratry/abuse of process action. f you are right, the sham defendants may have a rule 11 claim, and will ream DirectTV in the end. If you are wrong, well, time will tell. Our gainsaying each other in this thread won't prove the point -- I was simply trying to show you the elements of barratry, and to indicate that what you describe probably isn't it.
We are a nation grounded in the right to petition, which includes that right to sue -- so long as the SOLE reason isn't to harm people -- even if the principal and guiding reason is to do so.
How can you actually believe that? [the elements of objectively baseless]
You confuse my statement about what is the law with a statement of my beliefs. However, to some extent, they conform:
I believe deeply in our constitution, and am informed by applicable case law. Check out the Noerr Pennington doctrine in Antitrust for an example of how this works in practice.
I agree that we have the right to sue people that harm us. But I don't think it is written anywhere that we have the right to sue anyone that we think may have harmed us or could have harmed us had they wanted to without having some significant evidence that suggests someone actually DID harm us.
Substitute free speech for "right to sue people," and you may begin to see my problem with your qualifications. Harm is in the eyes of the person sued. We cannot simultaneously protect a right to petition and place heavy burdens on a plaintiff to "be right in fact" or to make some heavy threshold of "due dilligence." Against the person who sues just to harm and without any probable cause, there are causes of action. However, objective baselessness of the lawsuit or threat of it is a heavy, constitutionally required, threshold designed to preserve our rights -- and it is a significant burden for the prevailing defendant to overcome.
I thought it was a travesty for the Nazis to march in Skokie. But I think there is little doubt in my mind that they had a right (no moral right, but a constitutional right) to do so. Likewise, I can't preserve your right to petition government and at the same time complain about not being able to limit lawsuits I don't like.
It seems that doing lawsuits en masse, by definition, are objectively baseless. If they analyze each case and make an objective decision then I wouldn't see it is barratry.
In the U.S., large corporations are sued by a kazillion plaintiffs in a single suit, often allegeing that entire classes of people suffered an identical injury. Such class actions are not considered inherently evil, though many class members may not be entitled to relief at all. There exist procedural grounds, often quite difficult to overcome, by which a single plaintiff can sue a kazillion defendants as a class. Neither procedural vehicle requires as a precondition that all the individual cases are resolved and determined before the suits are filed.
That these are handled in the present case as a kazillion suits instead of one doesn't change the analysis or make inherently wrong any of these efforts to remedy what some people consider to be a civil wrong.
But if they just get a mailing list of people that have bought these things and fire off these threats indiscriminantly then they ARE going to be wrong sometimes and they are objectively baseless in the sense that they didn't even make a reasonable effort to determine if an individual accusation is baseless.
Maybe, maybe not. I would think that characterizing all mass lawsuits en masse as objectively baseless is probably objectively baseless.
Devil is always in the details -- look to the merits, stop making broad and general statements. Being wrong within an allegation doesn't make it objectively baseless, that is a sham.
I am not suggesting either that this particular action is silly or reasonable -- just that the generalization is inappropriate, and that the structure of the suit is not, by itself, necessarily problematic. We are a nation grounded in the right to petition, which includes that right to sue -- so long as the SOLE reason isn't to harm people -- even if the principal and guiding reason is to do so. That's just the way it is. And quite possibly the way it should be.
The United States Constitution may have something to say about North Carolina's policy: the Supremacy Clause. Assuming, just for the sake of this argument, that the defendant's conduct was in fact copyright infringement, and there are no federal defenses, a State probably doesn't have the power to require, directly or indirectly, a compulsory license for which the Congress did not provide.
I think that everybody seems to have missed the boat, here. The issue is not selling the.mp3s, but selling the right to have, use and, interestingly enough, to distribute them to licensed recipients. Recording companies, while they have demonstrated competence at acquiring rights to these works, really haven't figured out the best way to package, format and distribute them.
It is EASY to separate concerns here. Let us not have RIAA members build some kind of stupid monolithic DRM-based server that won't really solve the problem, but rather build a license-server that grants rights in exchange for money.
If we could do that, then everybody who is actually good at building systems and writing code could compete for the middle-market -- packaging and repackaging the process. They could distribute their.mp3,.ogg or whatever formatted subject matter using whatever software to whomever they want. If the user showed they had a license, then the distributor could just share it. If they didn't, the distributor could just sell it.
Basically, what we need is simply an apparatus for reducing the transaction costs of obtaining file-sharing licenses. One example of how this has been done is the Copyright Clearance Center, which provides a mechanism for obtaining rights to make copies of magazine articles. Indeed, a Second Circuit case found the EXISTENCE of CCC to make licensing of article copies cheap and easy, precludes a fair use defense by R&D researchers who made routine "research file copies" in many cases.
Imagine for example, a simple, on-line, service that gave you the right to obtain a copy of a particular phonorecord of a particular musical work, from whatever source, in whatever format. Presume (for the sake of the argument) that adequate measures could be and were taken to assure privacy and to prevent "re-playing" of the license token by unauthorized users.
And the market would determine all of the relevant factors, including prices for distribution services and to a lesser extent, even prices for licenses. Metallica could continue to license albums only, and their competition could continue to license individual songs -- whatever their hearts desire.
Look at this from the point of view of what we all want. We want music to be (i) readily available; (ii) conveniently acquired; (iii) high-quality; (iv) easy to use in whatever format; and (v) free. They want music to be: (i) purchased; (ii) in a controllable and measurable manner; and (iii) to control the means of distribution.
We aren't entitled to free music, and they aren't entitled to regulate technology. So why not recognize this and compromise. Let them sell licenses -- what they are good at, and then we can come.
There are exciting issues here galore: privacy, encryption, transferrability of licenses, scope and nature of licenses. But if RIAA would just deal with the reality of file-sharing, and instead of trying to stop the technology, try to figure out how to properly profit from it, they can turn this litigation fest into a profit center.
A file-sharing system could be implemented, for example, that would provide a measurable challenge for a license for a requested song -- and even permit a real-time-on-line purchase thereof! -- and now both parties are actually engaging in lawful conduct. Whether anybody takes a rake on that transaction will be determined by market forces impacted by ease of use, flexibility, marketing and network effects -- but the RIAA would get their license fee, and we would get our music.
RIAA could BENEFIT from this free distribution process, simply clipping coupons at their SOAP-based service center (or whatever), if only they had a moment's foresight.
Judge Richard Posner, a highly regarded Seventh Circuit Judge recently wrote an opinion upholding the Aimster injunction that tends to suggest that identity protection for file sharing is more likely to support a claim for contributory infringement of the vendor than not. The opinion, while troublesome in many respects, is probably the most intelligently written articulation of the 9th Circuit Napster reasoning we are likely to see, and will likely be deemed a persuasive authority by most District Court Judges. That is, until and unless the Supreme Court speaks clearly on whether they meant what they said when they wrote in the Sony Betamax case, that regardless of evidence of wrongdoing there can be no contributory liability for distribution of technology that is capable of a substantial noninfringing use.
My problem with the Napster, and now Aimster, opinions is simply this: the 9th Circuit adopted a broader view of the liability of a technology manufacturer in the Sony Betamax case, essentially a "substantial infringing uses occur means infringement by vendor" test, which was discredited and reversed in Sony, which adopted the "substantial noninfringing use possible means no infringement by vendor," almost the very opposite result. It is hard for me to understand why, when the 9th Circuit essentially brought back the same analysis in its Napster opinion that got "sent home" in Sony, that Judge Posner would so freely adopt it here. To be fair, he explains his reasoning very, very well -- I just don't find it persuasive in view of the law and its underlying policies -- contribution isn't about expanding copyright to permit technology regulation.
To me, the question isn't whether the technology is being used poorly -- even by most users -- if it is capable of a substantial noninfringing use -- in which case there should be NO liability for contribution. (To get a sense how far the Supreme Court went, there was survey evidence before the District Court showing that 50% of the Betamax users were doing some infringement.) The question should be whether the technology vendor was affirmatively and actively inducing others to engage in infringement, as was the case in Napster and, arguably, Aimster.
Time will tell. But until the Supreme Court gets to this, it looks like the Posner account of Napster will be the final word on this question of law. Note, however, that his remarks on identity protection as indicia of wrongdoing are very troubling -- one of these days, perhaps in a few more years, perhaps, if we don't have any more tall buildings hit by planes, we really need to affirmatively try to get the courts and the Congress focused on privacy again.
One of the principal points against overreaching laws like the DMCA is that the RIAA never needed them in the first place. If the mere fact of responsible assertion of rights results in a reduction of measured likely infringing conduct, this indicates that the opponents of DMCA were right, and the RIAA was wrong in insisting that draconian laws are necessary to protect RIAA rights.
Exactly how many seminal ideas have truly been removed from the public domain? In particular, identify the business that could, but didn't because of a business process patent idea of the kind that the Fords and Waltons (both of whom own many patents, by the way) built their world upon?
You are guilty of infringement when you, yourself, reproduce, distribute or make derivative works without consent, unless certain defenses apply (fair use, first sale, more money than the plaintiff to defend yourself, etc.).
You may also be guilty of infringement if you contribute to another person's infringement (think "aiding and abetting"), or if you have a master-agent relationship with the infringer. However, you are not responsible under these rules all the time. As a threshold matter, you are never responsible unless the primary individual is actually guilty of an infringement (that is, you can assert all of his defenses). Also, both for contribution and vicarious infringement, you generally have to have a guilty state of mind, often requiring, at least, imputed knowledge of the direct infringement. For contribution, there is also a number of other rules, such as the modern version of the Supreme Court's Sony "substantial noninfringing use" test, whereby you are off the hook if the technology is capable of a substantial noninfringing use, except in cases where the defendant's corporate name ends in "ster."
When the Church of Scientology sued Netcom for contributing to the infringements of its customers, Netcom prevailed, as I recall on summary judgment, by pointing out that it had no reason to know of the infringement, and thus could not be liable for contribution. This District Court opinion was later codified in the DMCA "internet provider" safe harbor rules. Note that whether or not the DMCA gives Amazon a defense, Amazon can always fall back on general rules of contribution, including Netcom.
Slashdot Mirror
. . . if they don't in 20 days, Red Hat will be entitled to a default judgment. Filing a response to a complaint isn't news, although missing their deadline -- THAT would be news.
I'll just buy a new machine running MacOSX or Windoze, to which the OS comes free.
SCO apparently has no clue what it means to compete, either with free or proprietary products.
To what charge did he plead? Is it obvious that his only crime was the exercise of free speech?
Well, the issue here is the copyright.
False! Copyright may or may not be the issues. Copyright is the issue, unless the issues is trade secres, trade dress or design protection for the user inteface or patents or contracts or any of a kazillion issues underlying the work. Heck, if names or images appear on the work, there may even be right to publicity issues. The corporation might not actually own the IP, or may not control it. You simply cannot know from the facts recited whether "the issue is copyright."
If the copyright is owned by a corporation that no longer exists, then there's nobody to enforce it.
False! The personal property of a corporation that is liquidated is divided among its investors, depending on the articles and agreements of the individuals and/or state law. The copyrights will be distributed in accordance with those agreements, and with it -- the right to enforce.
If you release the code to the public domain (because I assume that you can't legally claim the copyright)
Only the owner of the copyright can dedicate it to the public domain.
and it is this: It depends.
I can fantasize all sorts of facts completely consistent with your story that would result in dramatically different answers. It just depends.
It depends on who owned the assets before the financial worries (determining clearance and ownership of any work is not always a trivial matter; who wrote the code, were they contractors or consultants, if contractors, what do the work for hire agreements say, how about other ip, what was it derived from, any third party incorporated codes, etc).
It depends on the structure of the company. Corporation, partnership, llp.
It depends how it shut down. Was it liquidated, with assets distributed? Bankruptcy.
It depends upon the agreements of everybody who worked on the software, and whether there were provisions that dealt with whatever eventualities occurred.
It depends upon the nation and, sometimes, the state in which these events occurred.
It depends.
Only a lawyer can ask the questions, determine all the issues and answer them, if an answer is available.
Anybody who pretends otherwise is lying to you.
I am no expert on these issues -- isn't there something bizarre in the corpus of "mere entitlements" that can be taken away without compensation, and "property interests" which cannot be? or vice versa?
I read the article again to be sure, but I don't think the MPAA said anything about theft of automobiles. Your criminal responsibility, and your civil liability, for the conduct of your friend in that scenario may be dependent on a number of facts, but it frankly doesn't matter -- we are discussing copyright infringement.
To that end, you face serious problems with your jus tertii defense: (1) Copyright infringement requires no state of mind, not intent, not knowledge, not even negligence -- liability is strict liability; (2) even when you are not liable for copyright infringement, you can be liable for contribution and vicarious infringement.
Trust me, as between your legal analysis and MPAA's, theirs is far closer to the mark. Of course, each situtation depends heavily on the particular facts of each case -- however the "myth" that slashdotters seem so anxious to keep alive, that there is no liability for file sharing as a general proposition, is wrong.
It did not create "intellectual property", a highly offensive misnomer, it created a temporary loan from the public domain, to which all ideas belong once expressed.
Nonsense, the common law treated Copyright as intangible personal property since the adoption of the Statute of Anne, long before there was a United States or a United States Constitution. There are no significant differences between
Perhaps copyright should simply be abolished. Yes, that would take an amendment, but overturning extentions would only take simple legislation. Too bad the greedy profiteers who oppose it own congress. We need to vote the bums out!
Abolishment of Copyright clearly does not require an amendment to the Constitution -- nothing in the Constitution guarantees any author the right to the monopoly described in Article I, Section 8 -- the power to grant or deny Copyright is within the sound discretion of the Congress. An interesting question of whether the abolishment would constitute a "taking," however remains -- if the Congress took Disney's rights to its films, perhaps Disney would have rights under eminent domain to the value of the asset at the time of the taking.
Such speculations are pointless, for this will never happen, and so we needn't really spend too much time counting Angels on the head of the pin.
Article I, Section 8 of the Constitution is simply an enumeration of some of the powers granted to the Legislative Branch. In other words, it simply is a grant to the Congress of the power to pass a Copyright Act -- it does not require one. This is a point long-settled by the Supreme Court -- there is no right of an author, under the Constitution or otherwise, to any exclusive rights in Copyright, unless and until the Congress says so.
Normally I'd agree, but the typical technical patent simply is a restatement of the abstract, in all possible permutations of basic hardware and software setups
This is almost never true, in my experience, and these types of patents represent the corpus of my practice. Care to take one in particular? (Hint: the patent in the article isn't your best example.)
Generally speaking, while that may be useful in non-software domains, software patent claims are uselessly vague.
Nice pabulum, but what do you mean? Useless to whom? I litigate software arts patents all the time, and I am here to tell you that these claims are typically well-understood when applied with respect to relevant prosecution histories, specifications and the applicable law. Obviously you disagree, but you are mistaken about what is necessary to "certainly invalidate" a claim.
Just because patents make no sense to you, doesn't mean that they don't make sense.
This is a well-understood problem: enforcement of intellectual property rights at a large, national scale. ASCAP and BMI have been doing this for decades (except for a brief 4-5 year hiatus while successfully challenging a statute outlawing the practice).
BSA has been doing likewise.
This kind of litigation becomes a commodity practice, easily executed because of the verisimilitude of the litigation facts. Indeed, with a decent database and document assembly program, you can pretty much automate this, and train lawyers to do it at relatively low cost.
Because prevailing plaintiffs collect attorney fees almost 100% of the time, the hammer of this kind of litigation is significant: "Here's the deal, you can settle this case in advance for $XX,000. We can do this today, if you like, or if you would rather firght, tomorrow. I'll leave this offer open until a week before trial. The difference is that the clock is running -- the offer goes up as our attorney fee bill goes up. Let us know when you are too tired to go on."
Oh, and by the way, a judgment for Copyright infringement is not dischargable in bankruptcy.
No thanks.
Your spam may be my correspondence -- I may want to get mail from those whose conduct you find abhorrent. Today, a network may responsibly be censoring only unwanted and unsolicited commercial e-mail. Next week, the powers-that-be-in-the-networks start censoring geek news.
To protect our liberties, spam control should be decentralized -- as close to the last mile as possible. Yes, of course, this means that the supposed great harm of spam -- huge volume transmissions through the network -- will not be interdicted closer to the source. In my view, an effective end-point spam model is as likely to reduce volume as a network centered model: the idea is to reduce the INCENTIVE to spam -- that will reduce the volume.
Centralized technical measures simply invite the spam wars to continue, provide centralized points of failure, will not diminish spam, and will assure that powers-that-be have ample new abilities to censor speech.
The United States doesn't support droits morale (moral rights) such as rights to attribution and to maintain the integrity of a work, except in very narrow cases.
Intellectual property *is* all about economic incentive. So what?
People who are engaging in uncompensated file-sharing ARE subject to liability. What, precisely, is your problem with that?
I would far rather see serious enforcement against freeloaders who adopted an attitude that there are rights to receive data merely because it can be taken, than see the other backlash, which is the neutering and crippling of important technologies because the freeloaders have given RIAA sufficient --and legitimate-- bases to argue to the Congress for things like The Stupid Hollings Bill.
Get with it -- RIAA is, at last, doing the right thing. Better they sue infringers than technologies. It took the SONY Betamax case to get MPAA to change their model to make videotapes available at reasonable prices -- and everybody won. Likewise it will be with music.
But right now, if RIAA gets to argue they made the blitz and it was a bust, count on it -- there will never be another Betamax -- technology regulation will overwhelm intellectual property law, and it won't be a good thing.
A description in an abstract has no legal bearing on the scope of the patent granted, nor does excerpts of language drawn from the specification. The claim is the thing. Arguing in general terms from a broad sweeping apprimation of the patent craft is simply quibbling about a straw man. As to your conclusion, you might be right, you might be wrong -- but you haven't come anywhere near making a slightly credible case.
If you think a claim from a patent is valid, spell out the claim, offer a plausible construction of the claim and tell us what is the prior art. then we have a useful conversation going.
Anything else is sloppy demagoguery.
Note the different uses of terms "deep linking not illegal" and "deep linking illegal." The truth is almost always more interesting. Although some early cases in the UK (Shetland Times was it?) seemed to suggest courts might consider deep linking to be a form of IP violation, nobody seems to have taken this point terribly seriously as a general principal.
This does not mean that deep linking is somehow a blessed activity that can not give rise to liability, the HTML:
<A HREF="http://their.support.site">See my support site for further information</A>
or "See the sight of the murderer" or the like might well give rise to claims for unfair competition or defamation under appropriate circumstances. Thus, while deep linking, without more, is probably not actionable in most contexts, there are always going to be contexts where a deep link can be entirely actionable.
Lexmark wasn't a DMCA case -- straightforward copyright infringement.
The biggest threat to R.E. these days, however, is the Federal Circuit opinion in Bowers v. Baystate.
Can you cite that? I'm not saying you're wrong, I've just never heard of anything like that.
I'm quite right. It is set forth in the Federal Rules of Civil Procedure, Rule 26 ("sue or be sued"), an equal opportunity monstrosity.
And it seems wrong.
You have made very clear how much you don't like it. That doesn't make it right or wrong, however. It certainly doesn't make it illegal.
If this is the case, why doesn't the RIAA use this tactic?
I presume they decided it was unhelpful for them to provide anyone with a mailing list of all the defendants, and costly for them to seek class action proceedings.
Being wrong within an allegation doesn't make it objectively baseless, that is a sham.
It does make it objectiveley baseless and a sham if the allegation is made without any due diligence in determining whether the allegation is correct.
If you say so. I'm here to tell you that what you are stating wouldn't likely make the cut in the United States to avoid dismissal on pleadings or summary judgment dismissal of a barratry/abuse of process action. f you are right, the sham defendants may have a rule 11 claim, and will ream DirectTV in the end. If you are wrong, well, time will tell. Our gainsaying each other in this thread won't prove the point -- I was simply trying to show you the elements of barratry, and to indicate that what you describe probably isn't it.
We are a nation grounded in the right to petition, which includes that right to sue -- so long as the SOLE reason isn't to harm people -- even if the principal and guiding reason is to do so.
How can you actually believe that? [the elements of objectively baseless]
You confuse my statement about what is the law with a statement of my beliefs. However, to some extent, they conform:
I believe deeply in our constitution, and am informed by applicable case law. Check out the Noerr Pennington doctrine in Antitrust for an example of how this works in practice.
I agree that we have the right to sue people that harm us. But I don't think it is written anywhere that we have the right to sue anyone that we think may have harmed us or could have harmed us had they wanted to without having some significant evidence that suggests someone actually DID harm us.
Substitute free speech for "right to sue people," and you may begin to see my problem with your qualifications. Harm is in the eyes of the person sued. We cannot simultaneously protect a right to petition and place heavy burdens on a plaintiff to "be right in fact" or to make some heavy threshold of "due dilligence." Against the person who sues just to harm and without any probable cause, there are causes of action. However, objective baselessness of the lawsuit or threat of it is a heavy, constitutionally required, threshold designed to preserve our rights -- and it is a significant burden for the prevailing defendant to overcome.
I thought it was a travesty for the Nazis to march in Skokie. But I think there is little doubt in my mind that they had a right (no moral right, but a constitutional right) to do so. Likewise, I can't preserve your right to petition government and at the same time complain about not being able to limit lawsuits I don't like.
It seems that doing lawsuits en masse, by definition, are objectively baseless. If they analyze each case and make an objective decision then I wouldn't see it is barratry.
In the U.S., large corporations are sued by a kazillion plaintiffs in a single suit, often allegeing that entire classes of people suffered an identical injury. Such class actions are not considered inherently evil, though many class members may not be entitled to relief at all. There exist procedural grounds, often quite difficult to overcome, by which a single plaintiff can sue a kazillion defendants as a class. Neither procedural vehicle requires as a precondition that all the individual cases are resolved and determined before the suits are filed.
That these are handled in the present case as a kazillion suits instead of one doesn't change the analysis or make inherently wrong any of these efforts to remedy what some people consider to be a civil wrong.
But if they just get a mailing list of people that have bought these things and fire off these threats indiscriminantly then they ARE going to be wrong sometimes and they are objectively baseless in the sense that they didn't even make a reasonable effort to determine if an individual accusation is baseless.
Maybe, maybe not. I would think that characterizing all mass lawsuits en masse as objectively baseless is probably objectively baseless.
Devil is always in the details -- look to the merits, stop making broad and general statements. Being wrong within an allegation doesn't make it objectively baseless, that is a sham.
I am not suggesting either that this particular action is silly or reasonable -- just that the generalization is inappropriate, and that the structure of the suit is not, by itself, necessarily problematic. We are a nation grounded in the right to petition, which includes that right to sue -- so long as the SOLE reason isn't to harm people -- even if the principal and guiding reason is to do so. That's just the way it is. And quite possibly the way it should be.
So... they're demanding to sue en masse like this? Using lawsuits and demanding massive settlements? Isn't this the definition of barratry
Only if they are wrong and their suits are objectively baseless.
The United States Constitution may have something to say about North Carolina's policy: the Supremacy Clause. Assuming, just for the sake of this argument, that the defendant's conduct was in fact copyright infringement, and there are no federal defenses, a State probably doesn't have the power to require, directly or indirectly, a compulsory license for which the Congress did not provide.
I think that everybody seems to have missed the boat, here. The issue is not selling the .mp3s, but selling the right to have, use and, interestingly enough, to distribute them to licensed recipients. Recording companies, while they have demonstrated competence at acquiring rights to these works, really haven't figured out the best way to package, format and distribute them.
.mp3, .ogg or whatever formatted subject matter using whatever software to whomever they want. If the user showed they had a license, then the distributor could just share it. If they didn't, the distributor could just sell it.
It is EASY to separate concerns here. Let us not have RIAA members build some kind of stupid monolithic DRM-based server that won't really solve the problem, but rather build a license-server that grants rights in exchange for money.
If we could do that, then everybody who is actually good at building systems and writing code could compete for the middle-market -- packaging and repackaging the process. They could distribute their
Basically, what we need is simply an apparatus for reducing the transaction costs of obtaining file-sharing licenses. One example of how this has been done is the Copyright Clearance Center, which provides a mechanism for obtaining rights to make copies of magazine articles. Indeed, a Second Circuit case found the EXISTENCE of CCC to make licensing of article copies cheap and easy, precludes a fair use defense by R&D researchers who made routine "research file copies" in many cases.
Imagine for example, a simple, on-line, service that gave you the right to obtain a copy of a particular phonorecord of a particular musical work, from whatever source, in whatever format. Presume (for the sake of the argument) that adequate measures could be and were taken to assure privacy and to prevent "re-playing" of the license token by unauthorized users.
And the market would determine all of the relevant factors, including prices for distribution services and to a lesser extent, even prices for licenses. Metallica could continue to license albums only, and their competition could continue to license individual songs -- whatever their hearts desire.
Look at this from the point of view of what we all want. We want music to be (i) readily available; (ii) conveniently acquired; (iii) high-quality; (iv) easy to use in whatever format; and (v) free. They want music to be: (i) purchased; (ii) in a controllable and measurable manner; and (iii) to control the means of distribution.
We aren't entitled to free music, and they aren't entitled to regulate technology. So why not recognize this and compromise. Let them sell licenses -- what they are good at, and then we can come.
There are exciting issues here galore: privacy, encryption, transferrability of licenses, scope and nature of licenses. But if RIAA would just deal with the reality of file-sharing, and instead of trying to stop the technology, try to figure out how to properly profit from it, they can turn this litigation fest into a profit center.
A file-sharing system could be implemented, for example, that would provide a measurable challenge for a license for a requested song -- and even permit a real-time-on-line purchase thereof! -- and now both parties are actually engaging in lawful conduct. Whether anybody takes a rake on that transaction will be determined by market forces impacted by ease of use, flexibility, marketing and network effects -- but the RIAA would get their license fee, and we would get our music.
RIAA could BENEFIT from this free distribution process, simply clipping coupons at their SOAP-based service center (or whatever), if only they had a moment's foresight.
Judge Richard Posner, a highly regarded Seventh Circuit Judge recently wrote an opinion upholding the Aimster injunction that tends to suggest that identity protection for file sharing is more likely to support a claim for contributory infringement of the vendor than not. The opinion, while troublesome in many respects, is probably the most intelligently written articulation of the 9th Circuit Napster reasoning we are likely to see, and will likely be deemed a persuasive authority by most District Court Judges. That is, until and unless the Supreme Court speaks clearly on whether they meant what they said when they wrote in the Sony Betamax case, that regardless of evidence of wrongdoing there can be no contributory liability for distribution of technology that is capable of a substantial noninfringing use.
My problem with the Napster, and now Aimster, opinions is simply this: the 9th Circuit adopted a broader view of the liability of a technology manufacturer in the Sony Betamax case, essentially a "substantial infringing uses occur means infringement by vendor" test, which was discredited and reversed in Sony, which adopted the "substantial noninfringing use possible means no infringement by vendor," almost the very opposite result. It is hard for me to understand why, when the 9th Circuit essentially brought back the same analysis in its Napster opinion that got "sent home" in Sony, that Judge Posner would so freely adopt it here. To be fair, he explains his reasoning very, very well -- I just don't find it persuasive in view of the law and its underlying policies -- contribution isn't about expanding copyright to permit technology regulation.
To me, the question isn't whether the technology is being used poorly -- even by most users -- if it is capable of a substantial noninfringing use -- in which case there should be NO liability for contribution. (To get a sense how far the Supreme Court went, there was survey evidence before the District Court showing that 50% of the Betamax users were doing some infringement.) The question should be whether the technology vendor was affirmatively and actively inducing others to engage in infringement, as was the case in Napster and, arguably, Aimster.
Time will tell. But until the Supreme Court gets to this, it looks like the Posner account of Napster will be the final word on this question of law. Note, however, that his remarks on identity protection as indicia of wrongdoing are very troubling -- one of these days, perhaps in a few more years, perhaps, if we don't have any more tall buildings hit by planes, we really need to affirmatively try to get the courts and the Congress focused on privacy again.
One of the principal points against overreaching laws like the DMCA is that the RIAA never needed them in the first place. If the mere fact of responsible assertion of rights results in a reduction of measured likely infringing conduct, this indicates that the opponents of DMCA were right, and the RIAA was wrong in insisting that draconian laws are necessary to protect RIAA rights.
Exactly how many seminal ideas have truly been removed from the public domain? In particular, identify the business that could, but didn't because of a business process patent idea of the kind that the Fords and Waltons (both of whom own many patents, by the way) built their world upon?
You are guilty of infringement when you, yourself, reproduce, distribute or make derivative works without consent, unless certain defenses apply (fair use, first sale, more money than the plaintiff to defend yourself, etc.).
You may also be guilty of infringement if you contribute to another person's infringement (think "aiding and abetting"), or if you have a master-agent relationship with the infringer. However, you are not responsible under these rules all the time. As a threshold matter, you are never responsible unless the primary individual is actually guilty of an infringement (that is, you can assert all of his defenses). Also, both for contribution and vicarious infringement, you generally have to have a guilty state of mind, often requiring, at least, imputed knowledge of the direct infringement. For contribution, there is also a number of other rules, such as the modern version of the Supreme Court's Sony "substantial noninfringing use" test, whereby you are off the hook if the technology is capable of a substantial noninfringing use, except in cases where the defendant's corporate name ends in "ster."
When the Church of Scientology sued Netcom for contributing to the infringements of its customers, Netcom prevailed, as I recall on summary judgment, by pointing out that it had no reason to know of the infringement, and thus could not be liable for contribution. This District Court opinion was later codified in the DMCA "internet provider" safe harbor rules. Note that whether or not the DMCA gives Amazon a defense, Amazon can always fall back on general rules of contribution, including Netcom.