The case was decided in the Federal Circuit almost a year ago, when the Federal Circuit held (contrary to a Fifth Circuit Decision in the 80s) that shrink-wrap provisions precluding reverse engineering are enforceable. The Supreme Court simply turned down (as they do most of the cases that apply) Baystate's petition for them to hear the case, which doesn't mean anything other than they had other things to do this year.
We filed a brief in this case on behalf of IEEE-USA and various library associations. The brief lays out our view, at least, of the importance of the case and the consequences of it remaining the law, at least, perhaps, in the First Circuit.
So long as RIAA is able to argue to the Congress (who, whether you buy it or not is quite convinced, as are the courts, that unauthorized file sharing with third parties is properly actionable under the copyright Act) that individual actions are impractical and useless, they will be able to agitate for more laws like the DMCA.
Copyright infringement is actionable, and if some particular conduct that involves file sharing is copyright infringement, then it is actionable. But as we all know, the technology admits a kazillion possibilities for non-actionable and socially useful results. It is the latter that I am concerned about protecting.
I *DO NOT WANT* to have RIAA argue that we should circumscribe and turn back fair use and the first sale doctrine. I *DO NOT WANT* to have RIAA argue for more, non-balanced non-IP rights such as the anticircumvention rights under DMCA.
So, if they have to sue a few hundred people who ARE infringing, so be it. This is as it should be. If RIAA can't stand the PR or sell the public on the idea that this is the right thing to do, that's their problem. If promiscuous file-sharers are using modern technology to obtain massive libraries of music that they didn't pay for, that, too, is their problem.
Me, I want fair use, the ability to conveniently have access to the media I purchased or licensed and the ability to share information in the modern age. And if the RIAA and promiscuous sharers don't like it, they can both go to hell.
Every musical recording (so-called phonorecord) potentially involves two copyrights, the copyright in the underlying musical work (that is, the song itself), and the copyright in the recording of the musical work (the tracks laid down by what you have been calling the "artists.")
For trivia buffs, the (p) p-in-circle symbol refers to the phonorecord copyright, and the (c) c-in-circle symbol refers to the copyright in the musical work.
At any rate, there is an 8% piece of the pie reserved for the rights to the song -- usually split between the publisher and the songwriter.
I'm no lawyer, but aren't there laws regarding selective enforcement? How were these people chosen over the rest of their p2p buddies?
You may be confusing trademark and copyright law. A trademark owner has to reasonably police a mark, or it is diluted and weakened thereby. A copyright owner is free to pick and choose how many, if any, of the battles he wants to fight.
Selective enforcement MAY in some cases give rise to antitrust claims, or MAY in some cases help to avoid a preliminary injunction, but is generally not relevant to overall liability questions.
You might not be permitted to avoid claims for infringement while you are infringing. What a shame.
I agree that language of theft and piracy is overbearing and inappropriate. So, too, however, is the manner by which so many slashdotters wave their pirate flag, all the time pretending that it is somehow just a white sheet.
Hmmm... Ever see a credit dunning letter? Oddly enough, businesses whose products have been used expect to be paid. It is a routine and common practice for businesses to respond, sometimes agressively, even against customers.
Obviously, there is a balance to be struct. In my view, the way to strike that balance is up to the business in question. But as I see it, suing or threatening to sue indiviiduals engaging in copyright infringement is precisely the appropriate conduct. The problem with the "go after the center" approach is that it shuts down lots of innocent users and gets stupid overreaching laws passed that actually stunt legitimate technology.
If you are infringing, and they sue you, and they prevail? They are the white hat, and you are the jerk.
Of course the debtor being dunned feels "put upon" by his creditors. Get over it. You play, you pay.
The biggest concern you express is this:
1. Label most of your customers as criminals. 2. Send them thretening [sic] letters
How, exactly, is an infringer a customer? A publisher seeing a "customer" who is sharing hundreds and hundreds of albums, few of which were properly purchased, is legitimately seen as someone who isn't much of a customer at all, if at all.
It has been demonstrated again and again that file trading is free promotion.
Somehow every infringer thinks that property owners should be flattered that their property is Soooo valuable that people would actually want to misappropriate it. If they want to "squander" their property, as you claim they are doing, it is theirs to squander.
My guess is, that as between your data and theirs, their business model may well be better informed by fact. But while I personally believe your argument is the better one, I do not presume to impose upon the owner of property how they will exercise their property rights -- that is the entire premise of the free marketplace. Which brings me to this:
Don't Buy CDs
Absolutely, you are free to and should boycott those who act in a manner you deem irresponsible, even if it makes no meaningful commercial sense for you to do so -- or benefit to you to do so -- as some will argue. this is the mirror of the argument you made above.
However, do not pretend that by exercising YOUR personal property rights as regards YOUR disposable assets, that you are entitled to simultaneously "boycott" and engage in file trading, on the theory that you are somehow doing labels a favor.
Having taken absolutist or extreme positions on an issue, you can't credibly defend yourself for things that most people would just shrug off.
Bill Bennet cannot credibly author a "Book of Virtues" in adult and children's editions, make $25,000 a speech daily, and then point out that most people gamble and private lives are nobody's business.
Rhonda Storms could not credibly call for the dismantling of Hillsborough Countie's Public Access stations for supposed IP abuses (after losing for years to overcome first amendment responses to her efforts to censor what she deemed offensive programming), requiring that all producers undertake IP sensitivity training, and then defend her unlicensed synchronized parody of the Beach Boys' tune "Help Me Rhonda" in an election commercial as a reasonable oversight.
Likewise, Orin Hatch cannot insist that a few infringements of a few tunes are evil enough to justify a government official's call for destruction of personal property without due process and simultaneously argue that he should be forgiven for not studying a licensing agreement.
That's your best shot? And these are examples of what, in your view?
Oddly enough, nobody has yet to cite the prior art invalidating the GIF patent. It will expire without a single incident of abuse or adjudication of invalidity. This is greater evidence of the robustness of the system than anything to the contrary.
As to Amazon, the Amazon preliminary injunction case at the Federal Circuit stands to me as a powerful example, precisely, of how the system works correctly. The tough standard articulated there has operated to avoid abuses, and the litigation ultimately turned up credible prior art sufficient to provoke a settlement of the case.
To Beszos credit, he affirmatively bankrolled the bountyquest searches on his own technology.
Rambus' claims are turning out to be rather more robust than originally anticipated, even by many legal observers.
Then there is xiph.org, why would such an organisation exist if the US patent system was not suppressing innovation and progress?
This is your evidence? The best you can do? Is the existence of xiph the only metric by which we can determine or measure the progress of the useful arts? Is the existence of the Klan, which has existed far longer -- likely has greater membership and supporters -- and appears more financially stable and robust, evidence of the viability of racism as a philosophy?
I'll happily take this debate on. But while we discuss the merits of xiph.org as evidence of suppression, of innovation and progress, let's talk about GDP and economic growth in the IT sector since Diamond v. Diehr . . .:)
Following hyperbolae with more of the same doesn't make either statement meaningful.
here are US patents on virtually every trivial aspect of software development, to the extent that IBM can (and has) gone to companies and essentially said "you are probably violating one of our patents - pay up!". See here for some examples.
Get real. At least, be prepared to back up what you suggest.
Please site a patent and claim number reading on every occurrence of use of a binary search; a bucket sort; an array in a computer program. Don't have the number on the tip of your tongue, or do you consider these not to be an "aspect of software development?" Or was that hyperbolae?
Now, in retrospect, who is doing the trolling?
Careful study of the web site discloses not a single instance of IBM going to a company with a hold-up. Nor does it evidence "US patents on virtually every trivial aspect of software development."
This is a wide-open door through which even the most rediculously obvious software patents could (and therefore will) slip.
This is clearly hyperbolae. The parade of horribles didn't happen in the U.S., it is unlikely to happen in the E.U. The U.S. patent office finally rejects hundreds of applications in software arts every day, and will continue to do so.
Nothing in the EU proposal permits (and the law actually precludes) the allowance of a patent claim, where the differences betweeen the claim and the prior art would be obvious to a person of ordinary skill in the art.
Wonderful, a technology for remote destruction of a computer. Gives new meaning to the term Denial of Service!
A single hack attack would destroy thousands of dollars of equipment, Even assuming no serious loss of data, how, exactly, are we going to prevent Bin Laden from destroying our economy with a single worm? or some corporate spy?
This "solution" appears just slightly shy of insane.
Don't be so certain that SCO is going to die here.
David Boies, who led charge for the White Plains Cravath office team defending IBM in the antitrust action, is now representing SCO.
In the '70s, IBM was facing the real risk of being split at a time when they were unquestionably the dominant player in the computer industry. There was not a dime IBM had it would not have spent in the defense of that action.
Now, IBM is a shadow of its former self, and this issue -- a license fee for Unix -- is not the same mission critical issue as the antitrust litigation.
Your first argument is discussed in a parallel thread. I won't repeat that here.
So how about actually answering my concern about the portfolio effect? Just once?
I'll summarize. Portfolios can be powerful, software or otherwise. But there is nothing in a large portfolio of patents that would make it inherently cover, as you suggest, every complex program, any more than does the existence of a kazillion airbag patents necessarily make any new one by a smaller vendor infringing. The devil is always in the details, and in practice, very few portfolio effects --as you use the term-- have existed historically, outside the beginning innovation of a pioneering technology. Those are often resolved either by anti-trust, or by the legitimate acceptance of a temporary monopoly on, say, the polaroid, semiconductor or copier industries. What ordinarily happens, though, is that a follower comes up with an incremental invention seminally important, and the cross-licensing associations begin. Historically, as in semi-conductors and the early calculator industry, this has been much more pro-competitive than anti-competitive.
In any case, the best counterexample is the US. I have been around and marketed many programs, never once having been hit by "the mob."
(If you now say that this is a new argument, then you really need to read up on this stuff, no offense meant. It is anything but new.)
Your ad hominem suggestions about me don't justify your ad hominem's against Ms. McCarthy. You are making a fool of yourself -- I am well-known for my appreciation of the subject matter.
I subscribe to the view that software is mathematics (my working with formal methods no doubt influences me in this), and maths has never been patentable, why start now?
Well, this is well-discussed in the applicable U.S. jurisprudence. Ideas and formulae, laws of nature and the like are all non-patentable. But while the law of gravity is non-patentable, a novel variation of the trebuchet would be. Software patents did predate the Diamond v. Diehr case by many years, and the best model, IMHO, for limiting this was the Alapatt case -- yeah, I think State Street Bank went too far as well. But the EU proposal is way less permissive than either of those standards.
The observation is that ever since the end of the 1960s, there has always been a "software crisis".
The term, first used by Dijkstra, I think, refers to the fact that software doesn't work, costs too much, and was largely unmaintainable. Since the U.S. patent cases didn't start until '84, and not really at all until '97, it would seem that your distinction is a wee bit difficult.
There are many arguments along the lines of the Shaw quote -- including a beautiful one by Jefferson about candles and tapers. They apply to all ideas and all patents. And yet, there is widespread appreciation for the utility, and among some (apparently other than yourself) for the necessity of a patent system. (Jefferson, a true monopoly skeptic, later supported the Patent clause of the Constitution and became the first Commissioner of Patents, by the way.)
She's contradicting herself in one and the same sentence, trying to spread FUD ("if we don't accept this guideline about software patents, big companies will cherrypick ideas and patent them").
Not necessarily FUD. The scenario to explain this was set forth above. Only large companies, or small companies with seminal technologies that have attracted investment have any plausible means to manage an international portfolio.
IBM has 30000+ software patents. How many programs do you think exist that do not infringe on at least one of those?
Most. How many do you think don't infringe at least one of them?
I don't think that traditional patents are plain bad. The problem is that software is entirely different. If you make a machine, in general it's covered by maybe one or two patents, so licensing is perfectly possible. However, software patents cover such small and sometimes even basic components, that a single program may infringe on hundreds of patents. You just cannot sell such a program if you need a license for all of those patents, unless the owners allow you to get a license for 0.0001% of the profits or so.
You basis for these radical assertions? What makes you think that any general category of patents are narrow or broad? In my experience as a patent lawyer, patents, including software patents, are actually quite narrow. Some, including software patents, are quite broad. There are a kazillion examples of each in every art area. And there are FAR more non-software patents than software patents. As to whether there are more in a particular art area, say automobiles, than software patents generally, which there are by most comentator's computation, depends so much on the definitions of those terms as to make any proposition non-falsifiable and unworthy of debate.
Software patents operate precisely the same as do non-software patents, generally helpful, sometimes hurtful. This is why the US marketplace for software still thrives, notwithstanding the law of the last decade.
Yes, it really boils down to extortion in some cases. IBM actively seeks out companies which have new technology that interests them and then uses their patent portfolio to force the other company to give them access to that technology as part of a cross licensing deal (look here).
Your argument seems to be thus: (1) a portfolio of 3000 software patents necessarily covers most programs; (2) IBM has it, and can use it to obtain a license from anybody from whom they want one; (3) this is unique to software patents and is bad.
Demonstrably false. IBM pays a lot in licensing fees, as they do collect quite a bit. They get dinged every now and then for patent infringement, as does Microsoft and every large corporation that engages in a wide area of R&D and commerce. Ergo, counterexamples exist. Does this make you a FUD-spreader? Or perhaps just a person with a particular view trying to make his case concisely in a forum that doesn't admit great detail to permit further analysis?
The fact that I believe I could wipe the floor with you on a debate of these issues, and you think likewise is beside the point.
My point is that ad hominem attacks on a person, rather than substantive responses to their arguments, will invariably marginalize the person purporting to make rebuttal, and not the target speaker, and not the target argument. In addition, it is uncivil. So why do it?
And of their is a way of protection for software, then you are subject to buying forced "protection" from big companies, like above, and give all your own inventions to them. It's almost a mob system (see some of the comments at the previous url). If there is no way of buying protection like that, then small companies have at least an advantage over copycats, in that they will always be a small step ahead (since they are the innovators).
And this is what she is talking about. Get real. You can't come close to supp
Man, you really need to know more before you form an opinion.
Merely because I disagree with you does not mean that I am misinformed. No substantive analysis is necessary whatsoever to have made the statements in my prior statement: that the original poster made no case whatsoever in support of his suggestion of misrepresentation.
As to your new claim of misdirection, the FUD in the cited URL and the RMS paper is as bad as the FUD in response. With all due respect, this issue is far more complex than any three paragraph posting here.
If you have an argument, please make one, by all means. So far, you are simply giving testimony of misdirection. How about providing a real argument for once?
Her several statements in the quoted article are reasonable, for the reasons stated in my original posting: the EU directive is more akin to the Alapatt, pre-State Street Bank position in the US than to the present, more liberal US position. It does not support business method protection outside of the context of an IT system. And the economy of the EU is not so different from that of the US as to make her question, if these issues are so bad, "why hasn't the parade of horribles befallen the US?"
Your example of misrepresentation appears to be an assertion that she has not recieved a number of letter from small to medium-sized enterprises in support of the proposal. I clearly cannot provide you with the evidence you require, I'm just a geek patent lawyer in the US -- can you provide me with proof that she has none?
I can, however, tell you that I represent many small to mid-sized enterprises for whom I have drafted software patents. Presumably they find some value in the process. Of course, this neither ratifies nor gainsays what you are suggesting, but so what?
I read your post. With all due respect, an honest disagreement over patent policy is hardly FUD.
I found little in your post that renders her discussion problematic. The argument you make is viable in markets that do not produce as much novel technology as they consumer. This is true for some EU nations, and not for others.
The question is whether or not you are innovative. If you are making technology, and your nation gives no protection, then you -- in your local market -- are subject to arbitrary freeloading. Sure, in foreign markets you can do OK, *IF* you are wealthy enough to pursue and enforce foreign protection. Most individuals can't do either. Most companies can't do foreign enforcement. Thus, she is quite correct, only the local fatcats can possibly benefit from foreign protection in such an evironment.
Yes, there are reasonable questions -- one way or the other -- as to whether a patent system is a good thing or a bad thing. But given that you are in a nation that has already made that determination -- why discriminate between technologies? The EU has rejected your position about patents generally -- why should they adopt your position for software inventions only?
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard).
Should have read
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and the proposed EU standard does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard).
Her article was, at least, responsive and reasonable. It is sophomoric and irresponsible merely to state, without more, that her arguments were misrepresentations, and such silly remarks tend to support the position she takes (that the "computer rights campaigners" need to get real.
RMS wrote a parade-of-horribles argument that doesn't distinguish "patents are horrible," from "software patents are horrible," from "bad software patents are horrible." Marking arguments mostly from the first and third category, he convinces nobody who isn't already convinced. Stating, without more, that patents are bad, will not dissuade anyone who has a patent system from extending it. Arguing that bad software patents are bad simply calls for better examination and rational enforement policies.
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard). And yet, the parade of horribles RMS states will befall the EU hasn't happened here. Arguments like this may make those already convinced feel perhaps better about their position, but is likely also to get those who hold that position marginalized as irrational kooks.
If you have an argument, by all means make it. If you think she has made a misrepresntation, by all means state it. Instead, all you did was gainsay a reasoned (and certainly weakish and incomplete) rebuttal to a not terribly well-articulated article criticizing software patents in the EU.
If you say so. You can count on your hands the number of companies that purchase "please don't use my mark generically" advertisements. While you obviously disagree as to whether Xerox is the poster-child of "at risk" genericide cases, it is apparent by their own conduct that Xerox did not.
I won't take the time to quibble with you on what is obvious to almost every trademark professional: Xerox has always gone to extraordinary lengths, and had to, because they dominated a market by doing an excellent job of promoting their brand during their seminal patent tenure. Examples evidencing this are trivial to find with the simplest Google search.
The article quoted in the story was posted in December -- all of this stuff REALLY isn't news. In August of 2002, the Ninth Circuit finally got fully fed up with Cohen, who continued to have lawyers work his case while abusing litigation process and with his fugitive status. Cohen's lawyers petitioned the Supreme Court to take up that decision -- the dismissal of Cohen's appeal, but retained the questions of the Kremen lawsuit as against all the remaining defendants.
On June 9th, the Supreme Court denied certiorari (that is, refused to take up the appeal of Dismissal of Cohen from the appeal under the fugitive disentitlement doctrine).
When I last checked, the main issues on appeal devolved to a question certified by the 9th circuit to the California Supreme Court on the question whether California law permitted a cause of action for "conversion" with respect to intangible contract rights, such as a domain name. (In an opinion by which Judge Kozinski wrote BOTH the prevailing opinion AND the dissent. Does anyone know the status of that portion of the case?
So, while Mr. Cohen is a ghost (both legally and fugitively), all of the issues in the case remain, and are likely to be litigated for so long as we breathe -- at least it would seem. NSI/Varisign has been, alas, too cavalier and arbitrary in their management of domain name reassignment and disputes, creating a great deal of trouble for those unfamiliar with how they operate -- even those who irrevocably lose control of a domain name. Holding them accountable might change some of their "policies," possibly for good or bad. That will be the only likely legacy of sex.com.
As far as I can see, the Unix trademark is better enforced than such common trademarks as "Kleenex" and "Xerox", and there's no sign that they're in trouble.
Is that why they buy national full-page ads with the phrase, "you can make a copy on a copier, but you can't xerox a xerox on a xerox?" Xerox has been plagued with risks of genericide for years. The only thing that changed that issue was their disasterous market share losses in the 90s. They are no longer the powerhouse they once were, so they have lost the mindshare they once held. However,in their heyday, they were at great risk.
Singer lost their marks during their heyday, as everybody then wanted to sew on a "singer." Amusingly, they ultimately regained their mark once the phrase flowed out of genericity.
Slashdot Mirror
The case was decided in the Federal Circuit almost a year ago, when the Federal Circuit held (contrary to a Fifth Circuit Decision in the 80s) that shrink-wrap provisions precluding reverse engineering are enforceable. The Supreme Court simply turned down (as they do most of the cases that apply) Baystate's petition for them to hear the case, which doesn't mean anything other than they had other things to do this year.
We filed a brief in this case on behalf of IEEE-USA and various library associations. The brief lays out our view, at least, of the importance of the case and the consequences of it remaining the law, at least, perhaps, in the First Circuit.
. . . nor is it necessarily a bad thing.
So long as RIAA is able to argue to the Congress (who, whether you buy it or not is quite convinced, as are the courts, that unauthorized file sharing with third parties is properly actionable under the copyright Act) that individual actions are impractical and useless, they will be able to agitate for more laws like the DMCA.
Copyright infringement is actionable, and if some particular conduct that involves file sharing is copyright infringement, then it is actionable. But as we all know, the technology admits a kazillion possibilities for non-actionable and socially useful results. It is the latter that I am concerned about protecting.
I *DO NOT WANT* to have RIAA argue that we should circumscribe and turn back fair use and the first sale doctrine. I *DO NOT WANT* to have RIAA argue for more, non-balanced non-IP rights such as the anticircumvention rights under DMCA.
So, if they have to sue a few hundred people who ARE infringing, so be it. This is as it should be. If RIAA can't stand the PR or sell the public on the idea that this is the right thing to do, that's their problem. If promiscuous file-sharers are using modern technology to obtain massive libraries of music that they didn't pay for, that, too, is their problem.
Me, I want fair use, the ability to conveniently have access to the media I purchased or licensed and the ability to share information in the modern age. And if the RIAA and promiscuous sharers don't like it, they can both go to hell.
Don't be silly, large corporations don't get hurt by patents - sheesh.
Except for when they do.
If what you say is so, why is the largest software patent award to date STAC's $150M verdict against tiny Microsoft?
And why individual inventor Lemelson got a $500M verdict against Ford?
Sure, large corporations don't ever get touched.
Every musical recording (so-called phonorecord) potentially involves two copyrights, the copyright in the underlying musical work (that is, the song itself), and the copyright in the recording of the musical work (the tracks laid down by what you have been calling the "artists.")
For trivia buffs, the (p) p-in-circle symbol refers to the phonorecord copyright, and the (c) c-in-circle symbol refers to the copyright in the musical work.
At any rate, there is an 8% piece of the pie reserved for the rights to the song -- usually split between the publisher and the songwriter.
I'm no lawyer, but aren't there laws regarding selective enforcement? How were these people chosen over the rest of their p2p buddies?
You may be confusing trademark and copyright law. A trademark owner has to reasonably police a mark, or it is diluted and weakened thereby. A copyright owner is free to pick and choose how many, if any, of the battles he wants to fight.
Selective enforcement MAY in some cases give rise to antitrust claims, or MAY in some cases help to avoid a preliminary injunction, but is generally not relevant to overall liability questions.
You might not be permitted to avoid claims for infringement while you are infringing. What a shame.
I agree that language of theft and piracy is overbearing and inappropriate. So, too, however, is the manner by which so many slashdotters wave their pirate flag, all the time pretending that it is somehow just a white sheet.
Send them thretening [sic] letters
Hmmm... Ever see a credit dunning letter? Oddly enough, businesses whose products have been used expect to be paid. It is a routine and common practice for businesses to respond, sometimes agressively, even against customers.
Obviously, there is a balance to be struct. In my view, the way to strike that balance is up to the business in question. But as I see it, suing or threatening to sue indiviiduals engaging in copyright infringement is precisely the appropriate conduct. The problem with the "go after the center" approach is that it shuts down lots of innocent users and gets stupid overreaching laws passed that actually stunt legitimate technology.
If you are infringing, and they sue you, and they prevail? They are the white hat, and you are the jerk.
Of course the debtor being dunned feels "put upon" by his creditors. Get over it. You play, you pay.
The biggest concern you express is this:
1. Label most of your customers as criminals.
2. Send them thretening [sic] letters
How, exactly, is an infringer a customer? A publisher seeing a "customer" who is sharing hundreds and hundreds of albums, few of which were properly purchased, is legitimately seen as someone who isn't much of a customer at all, if at all.
It has been demonstrated again and again that file trading is free promotion.
Somehow every infringer thinks that property owners should be flattered that their property is Soooo valuable that people would actually want to misappropriate it. If they want to "squander" their property, as you claim they are doing, it is theirs to squander.
My guess is, that as between your data and theirs, their business model may well be better informed by fact. But while I personally believe your argument is the better one, I do not presume to impose upon the owner of property how they will exercise their property rights -- that is the entire premise of the free marketplace. Which brings me to this:
Don't Buy CDs
Absolutely, you are free to and should boycott those who act in a manner you deem irresponsible, even if it makes no meaningful commercial sense for you to do so -- or benefit to you to do so -- as some will argue. this is the mirror of the argument you made above.
However, do not pretend that by exercising YOUR personal property rights as regards YOUR disposable assets, that you are entitled to simultaneously "boycott" and engage in file trading, on the theory that you are somehow doing labels a favor.
That said, maybe the prices of image editing applications will drop slightly when corporations don't have to pay fees to Unisys."
Assume they don't drop. What would you infer from that?
Having taken absolutist or extreme positions on an issue, you can't credibly defend yourself for things that most people would just shrug off.
Bill Bennet cannot credibly author a "Book of Virtues" in adult and children's editions, make $25,000 a speech daily, and then point out that most people gamble and private lives are nobody's business.
Rhonda Storms could not credibly call for the dismantling of Hillsborough Countie's Public Access stations for supposed IP abuses (after losing for years to overcome first amendment responses to her efforts to censor what she deemed offensive programming), requiring that all producers undertake IP sensitivity training, and then defend her unlicensed synchronized parody of the Beach Boys' tune "Help Me Rhonda" in an election commercial as a reasonable oversight.
Likewise, Orin Hatch cannot insist that a few infringements of a few tunes are evil enough to justify a government official's call for destruction of personal property without due process and simultaneously argue that he should be forgiven for not studying a licensing agreement.
That's your best shot? And these are examples of what, in your view?
:)
Oddly enough, nobody has yet to cite the prior art invalidating the GIF patent. It will expire without a single incident of abuse or adjudication of invalidity. This is greater evidence of the robustness of the system than anything to the contrary.
As to Amazon, the Amazon preliminary injunction case at the Federal Circuit stands to me as a powerful example, precisely, of how the system works correctly. The tough standard articulated there has operated to avoid abuses, and the litigation ultimately turned up credible prior art sufficient to provoke a settlement of the case.
To Beszos credit, he affirmatively bankrolled the bountyquest searches on his own technology.
Rambus' claims are turning out to be rather more robust than originally anticipated, even by many legal observers.
Then there is xiph.org, why would such an organisation exist if the US patent system was not suppressing innovation and progress?
This is your evidence? The best you can do? Is the existence of xiph the only metric by which we can determine or measure the progress of the useful arts? Is the existence of the Klan, which has existed far longer -- likely has greater membership and supporters -- and appears more financially stable and robust, evidence of the viability of racism as a philosophy?
I'll happily take this debate on. But while we discuss the merits of xiph.org as evidence of suppression, of innovation and progress, let's talk about GDP and economic growth in the IT sector since Diamond v. Diehr . . .
You are trolling right? If not, WAKE UP!!
Following hyperbolae with more of the same doesn't make either statement meaningful.
here are US patents on virtually every trivial aspect of software development, to the extent that IBM can (and has) gone to companies and essentially said "you are probably violating one of our patents - pay up!". See here for some examples.
Get real. At least, be prepared to back up what you suggest.
Please site a patent and claim number reading on every occurrence of use of a binary search; a bucket sort; an array in a computer program. Don't have the number on the tip of your tongue, or do you consider these not to be an "aspect of software development?" Or was that hyperbolae?
Now, in retrospect, who is doing the trolling?
Careful study of the web site discloses not a single instance of IBM going to a company with a hold-up. Nor does it evidence "US patents on virtually every trivial aspect of software development."
This is a wide-open door through which even the most rediculously obvious software patents could (and therefore will) slip.
This is clearly hyperbolae. The parade of horribles didn't happen in the U.S., it is unlikely to happen in the E.U. The U.S. patent office finally rejects hundreds of applications in software arts every day, and will continue to do so.
Nothing in the EU proposal permits (and the law actually precludes) the allowance of a patent claim, where the differences betweeen the claim and the prior art would be obvious to a person of ordinary skill in the art.
Wonderful, a technology for remote destruction of a computer. Gives new meaning to the term Denial of Service!
A single hack attack would destroy thousands of dollars of equipment, Even assuming no serious loss of data, how, exactly, are we going to prevent Bin Laden from destroying our economy with a single worm? or some corporate spy?
This "solution" appears just slightly shy of insane.
Don't be so certain that SCO is going to die here.
David Boies, who led charge for the White Plains Cravath office team defending IBM in the antitrust action, is now representing SCO.
In the '70s, IBM was facing the real risk of being split at a time when they were unquestionably the dominant player in the computer industry. There was not a dime IBM had it would not have spent in the defense of that action.
Now, IBM is a shadow of its former self, and this issue -- a license fee for Unix -- is not the same mission critical issue as the antitrust litigation.
states with laborlaws that "strictly limit what can be expected of a salary enmployee."
Your first argument is discussed in a parallel thread. I won't repeat that here.
So how about actually answering my concern about the portfolio effect? Just once?
I'll summarize. Portfolios can be powerful, software or otherwise. But there is nothing in a large portfolio of patents that would make it inherently cover, as you suggest, every complex program, any more than does the existence of a kazillion airbag patents necessarily make any new one by a smaller vendor infringing. The devil is always in the details, and in practice, very few portfolio effects --as you use the term-- have existed historically, outside the beginning innovation of a pioneering technology. Those are often resolved either by anti-trust, or by the legitimate acceptance of a temporary monopoly on, say, the polaroid, semiconductor or copier industries. What ordinarily happens, though, is that a follower comes up with an incremental invention seminally important, and the cross-licensing associations begin. Historically, as in semi-conductors and the early calculator industry, this has been much more pro-competitive than anti-competitive.
In any case, the best counterexample is the US. I have been around and marketed many programs, never once having been hit by "the mob."
(If you now say that this is a new argument, then you really need to read up on this stuff, no offense meant. It is anything but new.)
Your ad hominem suggestions about me don't justify your ad hominem's against Ms. McCarthy. You are making a fool of yourself -- I am well-known for my appreciation of the subject matter.
I subscribe to the view that software is mathematics (my working with formal methods no doubt influences me in this), and maths has never been patentable, why start now?
Well, this is well-discussed in the applicable U.S. jurisprudence. Ideas and formulae, laws of nature and the like are all non-patentable. But while the law of gravity is non-patentable, a novel variation of the trebuchet would be. Software patents did predate the Diamond v. Diehr case by many years, and the best model, IMHO, for limiting this was the Alapatt case -- yeah, I think State Street Bank went too far as well. But the EU proposal is way less permissive than either of those standards.
The observation is that ever since the end of the 1960s, there has always been a "software crisis".
The term, first used by Dijkstra, I think, refers to the fact that software doesn't work, costs too much, and was largely unmaintainable. Since the U.S. patent cases didn't start until '84, and not really at all until '97, it would seem that your distinction is a wee bit difficult.
There are many arguments along the lines of the Shaw quote -- including a beautiful one by Jefferson about candles and tapers. They apply to all ideas and all patents. And yet, there is widespread appreciation for the utility, and among some (apparently other than yourself) for the necessity of a patent system. (Jefferson, a true monopoly skeptic, later supported the Patent clause of the Constitution and became the first Commissioner of Patents, by the way.)
She's contradicting herself in one and the same sentence, trying to spread FUD ("if we don't accept this guideline about software patents, big companies will cherrypick ideas and patent them").
Not necessarily FUD. The scenario to explain this was set forth above. Only large companies, or small companies with seminal technologies that have attracted investment have any plausible means to manage an international portfolio.
IBM has 30000+ software patents. How many programs do you think exist that do not infringe on at least one of those?
Most. How many do you think don't infringe at least one of them?
I don't think that traditional patents are plain bad. The problem is that software is entirely different. If you make a machine, in general it's covered by maybe one or two patents, so licensing is perfectly possible. However, software patents cover such small and sometimes even basic components, that a single program may infringe on hundreds of patents. You just cannot sell such a program if you need a license for all of those patents, unless the owners allow you to get a license for 0.0001% of the profits or so.
You basis for these radical assertions? What makes you think that any general category of patents are narrow or broad? In my experience as a patent lawyer, patents, including software patents, are actually quite narrow. Some, including software patents, are quite broad. There are a kazillion examples of each in every art area. And there are FAR more non-software patents than software patents. As to whether there are more in a particular art area, say automobiles, than software patents generally, which there are by most comentator's computation, depends so much on the definitions of those terms as to make any proposition non-falsifiable and unworthy of debate.
Software patents operate precisely the same as do non-software patents, generally helpful, sometimes hurtful. This is why the US marketplace for software still thrives, notwithstanding the law of the last decade.
Yes, it really boils down to extortion in some cases. IBM actively seeks out companies which have new technology that interests them and then uses their patent portfolio to force the other company to give them access to that technology as part of a cross licensing deal (look here).
Your argument seems to be thus: (1) a portfolio of 3000 software patents necessarily covers most programs; (2) IBM has it, and can use it to obtain a license from anybody from whom they want one; (3) this is unique to software patents and is bad.
Demonstrably false. IBM pays a lot in licensing fees, as they do collect quite a bit. They get dinged every now and then for patent infringement, as does Microsoft and every large corporation that engages in a wide area of R&D and commerce. Ergo, counterexamples exist. Does this make you a FUD-spreader? Or perhaps just a person with a particular view trying to make his case concisely in a forum that doesn't admit great detail to permit further analysis?
The fact that I believe I could wipe the floor with you on a debate of these issues, and you think likewise is beside the point.
My point is that ad hominem attacks on a person, rather than substantive responses to their arguments, will invariably marginalize the person purporting to make rebuttal, and not the target speaker, and not the target argument. In addition, it is uncivil. So why do it?
And of their is a way of protection for software, then you are subject to buying forced "protection" from big companies, like above, and give all your own inventions to them. It's almost a mob system (see some of the comments at the previous url). If there is no way of buying protection like that, then small companies have at least an advantage over copycats, in that they will always be a small step ahead (since they are the innovators).
And this is what she is talking about. Get real. You can't come close to supp
Man, you really need to know more before you form an opinion.
Merely because I disagree with you does not mean that I am misinformed. No substantive analysis is necessary whatsoever to have made the statements in my prior statement: that the original poster made no case whatsoever in support of his suggestion of misrepresentation.
As to your new claim of misdirection, the FUD in the cited URL and the RMS paper is as bad as the FUD in response. With all due respect, this issue is far more complex than any three paragraph posting here.
If you have an argument, please make one, by all means. So far, you are simply giving testimony of misdirection. How about providing a real argument for once?
Her several statements in the quoted article are reasonable, for the reasons stated in my original posting: the EU directive is more akin to the Alapatt, pre-State Street Bank position in the US than to the present, more liberal US position. It does not support business method protection outside of the context of an IT system. And the economy of the EU is not so different from that of the US as to make her question, if these issues are so bad, "why hasn't the parade of horribles befallen the US?"
Your example of misrepresentation appears to be an assertion that she has not recieved a number of letter from small to medium-sized enterprises in support of the proposal. I clearly cannot provide you with the evidence you require, I'm just a geek patent lawyer in the US -- can you provide me with proof that she has none?
I can, however, tell you that I represent many small to mid-sized enterprises for whom I have drafted software patents. Presumably they find some value in the process. Of course, this neither ratifies nor gainsays what you are suggesting, but so what?
How about actually making an argument? Just one?
I read your post. With all due respect, an honest disagreement over patent policy is hardly FUD.
I found little in your post that renders her discussion problematic. The argument you make is viable in markets that do not produce as much novel technology as they consumer. This is true for some EU nations, and not for others.
The question is whether or not you are innovative. If you are making technology, and your nation gives no protection, then you -- in your local market -- are subject to arbitrary freeloading. Sure, in foreign markets you can do OK, *IF* you are wealthy enough to pursue and enforce foreign protection. Most individuals can't do either. Most companies can't do foreign enforcement. Thus, she is quite correct, only the local fatcats can possibly benefit from foreign protection in such an evironment.
Yes, there are reasonable questions -- one way or the other -- as to whether a patent system is a good thing or a bad thing. But given that you are in a nation that has already made that determination -- why discriminate between technologies? The EU has rejected your position about patents generally -- why should they adopt your position for software inventions only?
n.b.: In my prior posting:
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard).
Should have read
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and the proposed EU standard does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard).
Sorry.
Her article was, at least, responsive and reasonable. It is sophomoric and irresponsible merely to state, without more, that her arguments were misrepresentations, and such silly remarks tend to support the position she takes (that the "computer rights campaigners" need to get real.
RMS wrote a parade-of-horribles argument that doesn't distinguish "patents are horrible," from "software patents are horrible," from "bad software patents are horrible." Marking arguments mostly from the first and third category, he convinces nobody who isn't already convinced. Stating, without more, that patents are bad, will not dissuade anyone who has a patent system from extending it. Arguing that bad software patents are bad simply calls for better examination and rational enforement policies.
She correctly observes that the US patent system is FAR more liberal to software arts patents than the present directive, and does not permit business methods patents (like the US prior to the State Street Bank decision, under the old Alapatt standard). And yet, the parade of horribles RMS states will befall the EU hasn't happened here. Arguments like this may make those already convinced feel perhaps better about their position, but is likely also to get those who hold that position marginalized as irrational kooks.
If you have an argument, by all means make it. If you think she has made a misrepresntation, by all means state it. Instead, all you did was gainsay a reasoned (and certainly weakish and incomplete) rebuttal to a not terribly well-articulated article criticizing software patents in the EU.
She is right -- we do need to get real.
If you say so. You can count on your hands the number of companies that purchase "please don't use my mark generically" advertisements. While you obviously disagree as to whether Xerox is the poster-child of "at risk" genericide cases, it is apparent by their own conduct that Xerox did not.
I won't take the time to quibble with you on what is obvious to almost every trademark professional: Xerox has always gone to extraordinary lengths, and had to, because they dominated a market by doing an excellent job of promoting their brand during their seminal patent tenure. Examples evidencing this are trivial to find with the simplest Google search.
The article quoted in the story was posted in December -- all of this stuff REALLY isn't news. In August of 2002, the Ninth Circuit finally got fully fed up with Cohen, who continued to have lawyers work his case while abusing litigation process and with his fugitive status. Cohen's lawyers petitioned the Supreme Court to take up that decision -- the dismissal of Cohen's appeal, but retained the questions of the Kremen lawsuit as against all the remaining defendants.
On June 9th, the Supreme Court denied certiorari (that is, refused to take up the appeal of Dismissal of Cohen from the appeal under the fugitive disentitlement doctrine).
When I last checked, the main issues on appeal devolved to a question certified by the 9th circuit to the California Supreme Court on the question whether California law permitted a cause of action for "conversion" with respect to intangible contract rights, such as a domain name. (In an opinion by which Judge Kozinski wrote BOTH the prevailing opinion AND the dissent. Does anyone know the status of that portion of the case?
So, while Mr. Cohen is a ghost (both legally and fugitively), all of the issues in the case remain, and are likely to be litigated for so long as we breathe -- at least it would seem. NSI/Varisign has been, alas, too cavalier and arbitrary in their management of domain name reassignment and disputes, creating a great deal of trouble for those unfamiliar with how they operate -- even those who irrevocably lose control of a domain name. Holding them accountable might change some of their "policies," possibly for good or bad. That will be the only likely legacy of sex.com.
As far as I can see, the Unix trademark is better enforced than such common trademarks as "Kleenex" and "Xerox", and there's no sign that they're in trouble.
Is that why they buy national full-page ads with the phrase, "you can make a copy on a copier, but you can't xerox a xerox on a xerox?" Xerox has been plagued with risks of genericide for years. The only thing that changed that issue was their disasterous market share losses in the 90s. They are no longer the powerhouse they once were, so they have lost the mindshare they once held. However,in their heyday, they were at great risk.
Singer lost their marks during their heyday, as everybody then wanted to sew on a "singer." Amusingly, they ultimately regained their mark once the phrase flowed out of genericity.