I strongly respect Bruce's efforts, thinking this is an excellent approach to publishing, and do not intend this remark to diminish that effort in any way at all. Nor do I want to diminish P-H's contributions to technology -- P-H has been excellent with their technology books in the past, agreeing freely to publish one of my books in electronic form at no cost, substantially as they are doing for Bruce.
However, shouldn't we be somewhat more jealous how the term "Open Source" is used? Is this really open source in any meaningful way? Will I be able to use, make derivative works and republish from Bruce's book in any manner , or am I just being given a copy for personal use?
In short, docs are different from programs in several important ways, a point that many anti-copyright people repeatedly made in the past with respect to the copyright act being applied to software. Likewise, the needs for "open source" for code is fundamentally different from the utility of "open access" to text. All of this is different from freedom, as used by RMS and crew, which is a different thing altogether.
In short, are we confusing our message by using the terminology "open source" with respect to media and content that (1) doesn't have source; and (2) is distributed under terms quite different from OSI code?
Many good things come in different packages: (1) the harvard group's collaborative on-line brief-writing efforst; and (2) various "freer" versions of publishing. That I suggest we don't lend the term open source does not mean that I don't think they are as good or less good than open source software. but they are different, and we shouldn't confuse or diminish our mission.
While it sounds good in principle, it is almost certainly wrong. Subject to issues of IP exhaustion, mere ownership of a copy of a work or invention has never granted plenary rights to modify or make derivative works therefrom. The cases simply won't bear out the general proposition suggested here.
On the other hand, it would be quite interesting to imagine how Microsoft would try to stop someone who had discovered the key by legitimate means -- say brute-force efforts -- to produce one's own software to run on the machine. I doubt DMCA would provide Microsoft adequate relief against such an approach -- this key does not protect unlicensed content from copying, but rather permits content to run on a machine. As such, it might not be a measure that ''effectively controls access to a work'' within the meaning of the DMCA, because it may not control access to a copyrighted work per se.
A common pattern in the threads below is a sense of incredulity that something other than civil remedies are available for misappropriation of a trade secret. Criminal responsibility for trade secret theft is actually quite common, and there are statutes in most states addressing same.
Usually, DA's have better things to do than to prosecute causes for which civil remedies provide adequate deterrence, relying instead on the private actions to keep honest folks honest. But every now and then, civil remedies fail to adequately encourage good behavior -- particularly when the defendant is effectively judgment-proof -- and a state attorney may decide to try to get someone's attention.
At any rate, the Economic Espionage Act is simply a Federal law against theft of trade secrets. The remedies are tougher than most analogous state laws, but so are the reqirements. No doubt, the language is somewhat different from uniform acts, but it is hardly anything new or special -- and chances are that if it weren't applicable, one or more state laws would also be relevant.
Guilty as charged? So what? I am clearly a blowhard, lawyer and a technologist. Does calling me stupid actually constitute anything approximating a substantive reply?
The Xerox patents predate the Intertrust ones and they describe the essentials you need.
The issue isn't essentials -- the issue is claim limitations. If the prior art has each and every claim limitation, you would be right. If it doesn't, you would be wrong. The reason for doubting that you might actually have done your homework arises from the plain lack of specificity, either here or in your prior postings.
As for having to disprove each and every one of the 1500 claims before having standing to dispute Intertrust, that position is so stupid that you can only be a shill for them.
So, the patent is stupid, the applicant is stupid, and those who challenge the namecalling are making stupid argument and necessarily shills. An astonishing exercise in argumentum ad hominem, but so what? The name-calling is not only misplaced, but you are just plain wrong. Suffice it to say, I am not affiliated with any of these entities. However, it would not matter -- your name-calling doesn't respond on the merits of the arguments. Even if I was a shill, at least I made a sound argument.
Filing claims says nothing about their validity. I don't believe for a minute that the USPTO examiner actually read them all before giving them the rubber stamp.
of course you don't -- since you clearly have spent no time at all yourself analyzing their validity, why should you believe anyone else did? indeed, Microsoft will spend a fair amount of time on the subject and time will tell. In the meanwhile, we can give appropriate credit to those whose only argument is namecalling?
There is everything stupid about them. One of their 26 patents is 500 pages and lists clsoe to 1500 claims, or was it 2000? The text showed every sign of having been produced using an automated tool.
How exactly, does the fact of a large patent with many claims indicate that the patent is "stupid," whatever you mean by that? What possible implication are we to draw from "the text showed every sign of having been produced using an automated tool?" That a computer filed the application?
Clearly it is ludicrous to dispute whether or not a given patent is "stupid," the term has no precise meaning that can be proved or disproved. Accordingly, I won't join that debate except to note that the validity and enforceability of the patent is not implicated or even seriously challenged by any of these issues.
It is meaningless, therefore, to whine about a patent being "stupid." It is certainly meaningless to whine about being "stupid" for such reasons.
The field of DRM long predates Intertrust and their patents.
Better, as this suggests some appreciation of the notion of patent validity being related to prior art. However, this criticism ias stated is likewise meaningless, for it is true of virtually every valid patent that ever issued -- the "field of" the subject matter of a patent has nothing to do with the validity of its particular claims.
The question isn't whether a prior field or reference reads on (that is to say, encompasses) a patent claim, but to the contrary, whether the patent claim reads on a particular reference. While the field of chairs may have long pre-existed the invention of a rocking chair, the rocking chair may nevertheless be patentable by a properly differentiated claim.
If Zeinfeld disdains any particular one of the 1500 claims he considers stupid, a more particularized argument might be to identify the specific reference that he claims antedates the patent, and to point out that each and every limitation of the claim appears in that reference. Otherwise, he is simply spitting into the wind.
At this point the company is down to a bunch of lawyers and they have staked the entire company on the Microsoft suit. They don't have any engineering at this point, it is pure patent exploitation.
Define patent exploitation. (Or is it simply synonymous with "stupid"?) Certainly, the fact that the company might not have any engineers has nothing to do with whether the patent is enforceable against Microsoft. Indeed, Microsoft is NOTORIOUS for waiting out smaller companies, ignoring their IP and fighting a patent suit until the company has gone bankrupt. (The STAC case, which Microsoft ultimately lost to the tune of $100M is a case in point.) Indeed, in identifying who was the patent exploiter in STAC, a judge and jury found it was Microsoft, not the shell that remained of a formerly vital company when Microsoft was done beating on them.
It is not uncommon that a small company or individual inventor gets ignored, and defenders of the industry puff about "patent exploitation" by a non-practicing inventor or his successors-in-interest. It takes BIG bucks to assert a patent claim against a real, collectible company, often way more than any company might have. It is not uncommon that the assets end up in a corporation formed solely for the purpose of obtaining a judgment -- not because the new corporation is the patent exploiter, but because the corporation owned property that was exploited by the defendant.
It might certainly be the case that this plaintiff is overreaching with awful or invalid patents. It might certainly be the case that Microsoft simply has been thumbing its nose at a smaller company. But this critic simply hasn't made his case with the facts he asserts here.
Its not absurd merely because you say so. For the most part, the courts have long rejected your very narrow perspective on what are the limits of government regulated speech. My suggestion is that, while you don't like the argument, you may be skating on fairly thin legal ice to assert that the argument is wholly without merit.
Your mailbox and telephone are held out to the public as means to reach you. Nobody can know before they send you messages whether or not they are desired, and if it were impermissible to send undesired mails, nobody would get any bills. In practice, your use of the mail and connection with it relies on the public weal, and you are unlikely to have an action for someone sending an unwelcome message, although certain stuff --lying misrepresentation actual harassment and the like-- can be actionable.
However, free speech is PRECISELY why the government has difficulty regulating how your mailbox can be used, and it is largely why you get so much junk mail. It is also why most anti-spam legislation is pretty meek, because forced speech and undue limitations can well invalidate these laws.
Self-help is inadequate to solve this problem -- spam filters are never going to be good enough. There will always be false positives and false negatives. The spammer thus reduces the effectiveness of my e-mail process, without giving me any benefit. The limit of your right to move your fist ends at my face, and I have no problem with regulation to the extent it does not overreach.
But you are right to ask if less invasive means are possible -- too much regulation is as bad as too little. I believe there is.
Rather than requiring people to mark spam, or worse, to refrain from spamming, I would prefer to prevent them from making false representations about their spam. In particular, I would like to harshly punish someone who represents their e-mail to be non-spam, when in fact it is. Then, I can simply filter for people who DO NOT represent themselves as non-spammers, and have a remedy against the liars.
For this purpose, I would simply define spam liberally, as a form of broadcast. In particular, as any message which was sent (or substantially similar messages) within a reasonable period of time (few days) to more than a reasonable number of persons (say, 200) who did not previously subscribe to the broadcast.
Virtually every e-mail client can responsibly be changed to represent as non-broadcast all e-mails without long lists of recipients, and easily, and with 100% accuracy filter such mail. If folks need spam protection, this will become a standard and the network effect will take care of broadcast e-mail completely. If not, then the whole issue will blow over, and further regulation isn't necessary.
As to the spammer, their incentive to spam will be reduced, and thus the impact of the spam (which still is getting sent through the net, albeit filtered) will be reduced.
That is just one of several less invasive means for addressing the problem. The virtue of this one is that it doesn't require anything of the spammer, doesn't prohibit anything except misrepresntations and lies about clear factual issues, and doesn't require content-based analysis of what is spam.
Intellectual Property is a mixed bag, it gives incentive to technologists and capital markets to bring new technology to market on one hand, but creates limited monopolies that can stifle innovation, particularly incremental advances, on the other. When these two interests are adequately balanced, these rules make for killer economies.
However, the latest trends have led special-interest driven legislation to destroy that delicate balance and create what is no longer intellectual property, but special-interest technology regulation, such as the DMCA (which gives patent-like protection to unpatentable non-technologies), Dilution (which grants ownership of words), the upcoming broadcast flag regulation and more recent attempts such as "the Stupid Hollings Bill with Many Initials" to pass laws making computers non-computers.
These tech reg laws will destroy our competitive edge, in the name of protecting an industry more than adequately protected by existing laws. The content industry had their best year in recent history, and then they killed Napster, whining that Napster was killing them, and only then did the bottom fall out of the market. Permitting special interests to protect "turf" rather than permitting the free market to make dinosaurs of dinosaurs is killing us, only slowly at first, but it will be the end of technology at the end of the day.
Nobody is more pro-IP on this forum than myself. And I remain willing to defend traditional Copyright, Trademark and Patent law principles. But technology regulation is a gross error, and one that is subtly having a devastating impact on our economy.
We get it. You are an ideologue to whom argument doesn't much matter. So I'll simply stand by what I wrote and agree to disagree with your characterization of the discussion to date.
Two interesting points are raised by your amusing remarks:
1) Copyright isn't a "copy right." Copyright grants no right at all, merely a right to exclude. And ownership of a copyright doesn't insure the right to make copies of it -- you can own the copyright unencumbered to a work and still be barred from republication of your own work.
2) You are absolutely correct that copyright doesn't protect ideas. I'm not sure how you define "information," so I can't comment on the latter point. I don't particularly have any problem with or commitment to the term "Intellectual Property" -- as with most generic terms it suffers from not being wholly precise, but I don't think it requires or implies what you say it does, nor does it preclude it. Alas, IP as practiced does include many kinds of law that is not property, at least constitutionally, such as unfair competition rights and the like.
However, there is simply no credible quibble that copyrights and patents are not property. The proposition is losing on every front, whether legal, linguistic or practical (which is why he abandoned those points it for his new quibble about the term IP when confronted by someone who knew about what he was writing). For this reason, I stand by my suggestion that the prior remarks of my colleague manyoso are whooey.
It's an informative and accurate meme that need to be spread.
It's neither. It is, in fact, inaccurate and therefore misinforms. Two points:
1) In fact, the owner of a copyright is granted no right to copy. There is a subtle, but important difference between the right to do something, and having an exclusive right to do something. The former is a privilege to perform an act. The latter is the right to exclude another from performing the act.
In short, as an owner, I can use the power of the state to stop, punish or grant me damages if YOU infringe my copyright by making copies.
However, I can also own a copyright in a work, but not have the right to make copies. For example, let's say you permit me to make a derivative work of your book, provided I don't make any copies myself, although some specified publisher could be used for that purpose. I would OWN the exclusive right to keep others from copying (including the specified publisher) the derivative work. But you would OWN the exclusive right to keep me from making any copies of my own work. Weird, but illustrative.
Another common scenario is where I have assigned some, but not all of the exclusive rights to a copyright. If I grant you an exclusive license in my copyright, I can no longer make copies myself.
2) Copyright is not limited to rights to copy. There are six enumerated exclusive rights in a copyright set forth in 17 USC s. 106, reproduction being but one of them.
This idea breaks when you consider that corporations are legal persons, and that they can own copyrights.
Not a problem. At least not a logical problem.
A corporation cannot be an "author" of a copyright in the sense of the statute -- only a natural person. When a natural person assigns a work of authorship to the corporation, the term is measured by the life of the natural person, not the "corporation."
The only other case is the infamous "work made for hire," where the corporation is treated like an author. In the case of a work made for hire, however, the statute does not define the term of the copyright to be life-based, but rather for a (very long) fixed term, presently 120 years.
This is sheer wordplay. Through nothing more than namecalling and gainsay, the author tries to redefine the meaning of the word "property" to exclude things he would prefer not to consider property. His points fail on the merits on almost every reasonable basis
Of course, gainsaying gainsay proves nothing either, but this argument is so stupid that it almost deserves no more. Any plausible definition of property in a dictionary (plain or legal) belies the proposition: try Webster's Third New International, and Black's Law dictionary, which of course, includes Copyrights and Patents expressly.
Arguing that copyrights are not identical to real estate proves nothing, as does arguing that they are not identical to a car. True, intangible personal property is slightly different from tangible personal property, which in turn is slightly different from real property. They also have things in common (besides being forms of property) -- they grant exclusive rights.
The temporal argument is wildly incorrect. There are zillions of property rights that are time-limited. The gainsay above simply ignored the substantive response by saying, ludicrously, that time-limited rights are "not yours." (Try explaining that to any person who has been ejected from property that is merely a life estate, or who has been found liable for substantial damages for infringement).
The fair use argument is likewise losing. Many "social rights" are common to all forms of property. Your right in your home is not absolute. I am privileged in many cases to make uses of easements, easements by necessity, and otherwise to enter or to use your real or personal property under various circumstances. The circumstances are limited, prescribed for particular social purposes and do not make you house or car any less a "property" asset.
In short, the argument given by the author of the preceding note is sophomoric and patently incorrect. It was non-responsive to the well-considered argument preceding it that addressed the issues point-by-point. There may be an argument that IP isn't, but that certainly wasn't it.
Perhaps the author will respond, if at all, less with gainsay than with a substantive definition he proposes to substitute for the English word "property," and then explain why anyone else but him should be using it.
The links is way to conclusory for me even to figure out what they are talking about. It is unclear that this really has anything to do with the DMCA at all -- except to the extent that the DMCA affirmatively HELPS service providers with an express safe harbour. (That was more or less the state of the law after the Netcom case anyway.) It is possible also that the particular provider may have been scared off by his own overcautious counsel -- we just can't tell from what I can see.
Does anyone have a link to the actual demand/notice letters or a more detailed account so that we can figure out what is what?
Let the content providers whine -- it will ultimately undercut their chances in the relevant marketplace.
Imagine how MPAA will scream beforehand how this will kill their business. Imagine how few actual pirated copies will be released or available, PARTICULARLY if they do an even moderately decent job of policing.
Then, watch as the film in fact sets industry records as a blockbuster hit.
Thus, proving ultimately by clear example that the claims of DAMAGES from piracy are hopelessly overblown. Sure, a few potential future DVD sales may have been lost by such releases. (Count 'em on your hand!) So what? They will make a fortune.
Moreover, consider how absolutely ineffective anything but the most draconian technology regulation would be to slow or stop this minor dribble of piracy -- it will happen regardless of the fundamental social changes the content industry attempts to foist upon American and international technology markets, will accomplish little, and wasn't needed in the first place.
I do not account for the criminal terminology, as that is not my baliwick. In the civil domain, however, particular in patent litigation -- an area in which I practice, you have it exactly backwards.
A case dismissed with prejudice may not be renewed, permitting an absolute defense of claim or issue preclusion (res judicata and collateral estoppel). A case dismissed without prejudice may be renewed without permitting a prior adjudication defense, subject to statutes of limitation and other time bars that may get in the way.
Moreover, the voluntary dismissal might give rise to an inference that none of the alleged inferences create irreparable harm (otherwise how could they have dismissed?), possibly precluding certain forms of injunctive relief.
The most common kind of internet security failure derives, it would seem, from buffer overflows on the internet.
These buffer overflows invariably arise from unsatisfactory bound checking -- one of the simplest kinds of bugs, and are easily exploited these days by script kiddies.
I typed too quickly... I certainly didn't mean to suggest USA is barred to distribute its own public domain works when derived from non-GPL, but rather to note that it has no power to limit or restrict any person's use of those public domain aspects of the work. Hence the USA has no power to "cause" the derivative work "to be licensed as a whole . . . under the terms of the license."
Notwithstanding the assertion on the FSF site that "public domain" is GPL-compatible, I am led to wonder how. In particular, how can the USA, which has no lawful right to distribute its internally created derivative works (barred from Copyright Protection by express provision), compel any use or non-use whatsoever? In particular, assuming the USA makes a GPL derivative work, and would like to distribute it, how could it comply with the obligation under GPL to:
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
Thus, it would appear that the US could modify the work for its internal use, but would not be able to distribute it without breaching the GPL.
the courts told them to do so. What else could they do? The wiser move might well be to do something else, but whose wisdom should apply? I do not presume to be wiser than the French government, although upon noting this humble view, I respectfully find their speech regulation problematic and ultimately ineffective. Still, they, not I, get to decide what is French law. Google wants to participate in France. What else could they do?
I'd think any patent that uses phrases like "a variety of" is too vague.
Vagueness such as this rarely helps the plaintiff. Consider Claim 1:
1. A computerized system for selecting and ordering a variety of information, goods and services, which comprises
Ordinarily, the preamble is not read into the claim, although it certainly can be in appropriate cases. But here --assuming, a bad assumption, that it actually serves as a claim limitation--, the addition of the words "a variety of" works to the detriment of the plaintiff. (Consider the fragment with those words deleted). In the absence of the language, the fragment is far broader, referring to all information, goods and services. With the language, which must be read to mean SOMETHING, a narrower set of possibilities is considered.
Does it mean: more than one thing, where each thing is either information a good or service; more than one thing, and different things, where each thing in one of the categories; or more than one thing, with things in two or more of the categories? Answers are found in the spec, the prosecution history and elsewhere, and it is stuff like this that gives defendants a chance.
Dissing new media is the content-maker's well-honed tradition. The piano-roll was going to kill music sales. The radio would devastate music, as would the audio tapes. G-d save us from the death of everyone after the television. And the VCR case had to go to the Supreme Court. Then the DAT, the CD and now the DVD.
In every case, savvy content people got bigger and bigger and bigger, wealthier and wealthier, precisely because of the new media, not in sprite of it.
Yes, theatres and hollywood had better get the message clearly -- they serve a marketplace, not the other way around. Those that get it will prosper, those that don't will fail.
Slashdot Mirror
I strongly respect Bruce's efforts, thinking this is an excellent approach to publishing, and do not intend this remark to diminish that effort in any way at all. Nor do I want to diminish P-H's contributions to technology -- P-H has been excellent with their technology books in the past, agreeing freely to publish one of my books in electronic form at no cost, substantially as they are doing for Bruce.
However, shouldn't we be somewhat more jealous how the term "Open Source" is used? Is this really open source in any meaningful way? Will I be able to use, make derivative works and republish from Bruce's book in any manner , or am I just being given a copy for personal use?
In short, docs are different from programs in several important ways, a point that many anti-copyright people repeatedly made in the past with respect to the copyright act being applied to software. Likewise, the needs for "open source" for code is fundamentally different from the utility of "open access" to text. All of this is different from freedom, as used by RMS and crew, which is a different thing altogether.
In short, are we confusing our message by using the terminology "open source" with respect to media and content that (1) doesn't have source; and (2) is distributed under terms quite different from OSI code?
Many good things come in different packages: (1) the harvard group's collaborative on-line brief-writing efforst; and (2) various "freer" versions of publishing. That I suggest we don't lend the term open source does not mean that I don't think they are as good or less good than open source software. but they are different, and we shouldn't confuse or diminish our mission.
While it sounds good in principle, it is almost certainly wrong. Subject to issues of IP exhaustion, mere ownership of a copy of a work or invention has never granted plenary rights to modify or make derivative works therefrom. The cases simply won't bear out the general proposition suggested here.
On the other hand, it would be quite interesting to imagine how Microsoft would try to stop someone who had discovered the key by legitimate means -- say brute-force efforts -- to produce one's own software to run on the machine. I doubt DMCA would provide Microsoft adequate relief against such an approach -- this key does not protect unlicensed content from copying, but rather permits content to run on a machine. As such, it might not be a measure that ''effectively controls access to a work'' within the meaning of the DMCA, because it may not control access to a copyrighted work per se.
A common pattern in the threads below is a sense of incredulity that something other than civil remedies are available for misappropriation of a trade secret. Criminal responsibility for trade secret theft is actually quite common, and there are statutes in most states addressing same.
Usually, DA's have better things to do than to prosecute causes for which civil remedies provide adequate deterrence, relying instead on the private actions to keep honest folks honest. But every now and then, civil remedies fail to adequately encourage good behavior -- particularly when the defendant is effectively judgment-proof -- and a state attorney may decide to try to get someone's attention.
At any rate, the Economic Espionage Act is simply a Federal law against theft of trade secrets. The remedies are tougher than most analogous state laws, but so are the reqirements. No doubt, the language is somewhat different from uniform acts, but it is hardly anything new or special -- and chances are that if it weren't applicable, one or more state laws would also be relevant.
Guilty as charged? So what? I am clearly a blowhard, lawyer and a technologist. Does calling me stupid actually constitute anything approximating a substantive reply?
The Xerox patents predate the Intertrust ones and they describe the essentials you need.
The issue isn't essentials -- the issue is claim limitations. If the prior art has each and every claim limitation, you would be right. If it doesn't, you would be wrong. The reason for doubting that you might actually have done your homework arises from the plain lack of specificity, either here or in your prior postings.
As for having to disprove each and every one of the 1500 claims before having standing to dispute Intertrust, that position is so stupid that you can only be a shill for them.
So, the patent is stupid, the applicant is stupid, and those who challenge the namecalling are making stupid argument and necessarily shills. An astonishing exercise in argumentum ad hominem, but so what? The name-calling is not only misplaced, but you are just plain wrong. Suffice it to say, I am not affiliated with any of these entities. However, it would not matter -- your name-calling doesn't respond on the merits of the arguments. Even if I was a shill, at least I made a sound argument.
Filing claims says nothing about their validity. I don't believe for a minute that the USPTO examiner actually read them all before giving them the rubber stamp.
of course you don't -- since you clearly have spent no time at all yourself analyzing their validity, why should you believe anyone else did? indeed, Microsoft will spend a fair amount of time on the subject and time will tell. In the meanwhile, we can give appropriate credit to those whose only argument is namecalling?
There is everything stupid about them. One of their 26 patents is 500 pages and lists clsoe to 1500 claims, or was it 2000? The text showed every sign of having been produced using an automated tool.
How exactly, does the fact of a large patent with many claims indicate that the patent is "stupid," whatever you mean by that? What possible implication are we to draw from "the text showed every sign of having been produced using an automated tool?" That a computer filed the application?
Clearly it is ludicrous to dispute whether or not a given patent is "stupid," the term has no precise meaning that can be proved or disproved. Accordingly, I won't join that debate except to note that the validity and enforceability of the patent is not implicated or even seriously challenged by any of these issues.
It is meaningless, therefore, to whine about a patent being "stupid." It is certainly meaningless to whine about being "stupid" for such reasons.
The field of DRM long predates Intertrust and their patents.
Better, as this suggests some appreciation of the notion of patent validity being related to prior art. However, this criticism ias stated is likewise meaningless, for it is true of virtually every valid patent that ever issued -- the "field of" the subject matter of a patent has nothing to do with the validity of its particular claims.
The question isn't whether a prior field or reference reads on (that is to say, encompasses) a patent claim, but to the contrary, whether the patent claim reads on a particular reference. While the field of chairs may have long pre-existed the invention of a rocking chair, the rocking chair may nevertheless be patentable by a properly differentiated claim.
If Zeinfeld disdains any particular one of the 1500 claims he considers stupid, a more particularized argument might be to identify the specific reference that he claims antedates the patent, and to point out that each and every limitation of the claim appears in that reference. Otherwise, he is simply spitting into the wind.
At this point the company is down to a bunch of lawyers and they have staked the entire company on the Microsoft suit. They don't have any engineering at this point, it is pure patent exploitation.
Define patent exploitation. (Or is it simply synonymous with "stupid"?) Certainly, the fact that the company might not have any engineers has nothing to do with whether the patent is enforceable against Microsoft. Indeed, Microsoft is NOTORIOUS for waiting out smaller companies, ignoring their IP and fighting a patent suit until the company has gone bankrupt. (The STAC case, which Microsoft ultimately lost to the tune of $100M is a case in point.) Indeed, in identifying who was the patent exploiter in STAC, a judge and jury found it was Microsoft, not the shell that remained of a formerly vital company when Microsoft was done beating on them.
It is not uncommon that a small company or individual inventor gets ignored, and defenders of the industry puff about "patent exploitation" by a non-practicing inventor or his successors-in-interest. It takes BIG bucks to assert a patent claim against a real, collectible company, often way more than any company might have. It is not uncommon that the assets end up in a corporation formed solely for the purpose of obtaining a judgment -- not because the new corporation is the patent exploiter, but because the corporation owned property that was exploited by the defendant.
It might certainly be the case that this plaintiff is overreaching with awful or invalid patents. It might certainly be the case that Microsoft simply has been thumbing its nose at a smaller company. But this critic simply hasn't made his case with the facts he asserts here.
Another way to get on a no-call list is to interrupt the solicitor, and to direct them to place you on their no-call list.
Its not absurd merely because you say so. For the most part, the courts have long rejected your very narrow perspective on what are the limits of government regulated speech. My suggestion is that, while you don't like the argument, you may be skating on fairly thin legal ice to assert that the argument is wholly without merit.
Your mailbox and telephone are held out to the public as means to reach you. Nobody can know before they send you messages whether or not they are desired, and if it were impermissible to send undesired mails, nobody would get any bills. In practice, your use of the mail and connection with it relies on the public weal, and you are unlikely to have an action for someone sending an unwelcome message, although certain stuff --lying misrepresentation actual harassment and the like-- can be actionable.
However, free speech is PRECISELY why the government has difficulty regulating how your mailbox can be used, and it is largely why you get so much junk mail. It is also why most anti-spam legislation is pretty meek, because forced speech and undue limitations can well invalidate these laws.
Self-help is inadequate to solve this problem -- spam filters are never going to be good enough. There will always be false positives and false negatives. The spammer thus reduces the effectiveness of my e-mail process, without giving me any benefit. The limit of your right to move your fist ends at my face, and I have no problem with regulation to the extent it does not overreach.
But you are right to ask if less invasive means are possible -- too much regulation is as bad as too little. I believe there is.
Rather than requiring people to mark spam, or worse, to refrain from spamming, I would prefer to prevent them from making false representations about their spam. In particular, I would like to harshly punish someone who represents their e-mail to be non-spam, when in fact it is. Then, I can simply filter for people who DO NOT represent themselves as non-spammers, and have a remedy against the liars.
For this purpose, I would simply define spam liberally, as a form of broadcast. In particular, as any message which was sent (or substantially similar messages) within a reasonable period of time (few days) to more than a reasonable number of persons (say, 200) who did not previously subscribe to the broadcast.
Virtually every e-mail client can responsibly be changed to represent as non-broadcast all e-mails without long lists of recipients, and easily, and with 100% accuracy filter such mail. If folks need spam protection, this will become a standard and the network effect will take care of broadcast e-mail completely. If not, then the whole issue will blow over, and further regulation isn't necessary.
As to the spammer, their incentive to spam will be reduced, and thus the impact of the spam (which still is getting sent through the net, albeit filtered) will be reduced.
That is just one of several less invasive means for addressing the problem. The virtue of this one is that it doesn't require anything of the spammer, doesn't prohibit anything except misrepresntations and lies about clear factual issues, and doesn't require content-based analysis of what is spam.
Intellectual Property is a mixed bag, it gives incentive to technologists and capital markets to bring new technology to market on one hand, but creates limited monopolies that can stifle innovation, particularly incremental advances, on the other. When these two interests are adequately balanced, these rules make for killer economies.
However, the latest trends have led special-interest driven legislation to destroy that delicate balance and create what is no longer intellectual property, but special-interest technology regulation, such as the DMCA (which gives patent-like protection to unpatentable non-technologies), Dilution (which grants ownership of words), the upcoming broadcast flag regulation and more recent attempts such as "the Stupid Hollings Bill with Many Initials" to pass laws making computers non-computers.
These tech reg laws will destroy our competitive edge, in the name of protecting an industry more than adequately protected by existing laws. The content industry had their best year in recent history, and then they killed Napster, whining that Napster was killing them, and only then did the bottom fall out of the market. Permitting special interests to protect "turf" rather than permitting the free market to make dinosaurs of dinosaurs is killing us, only slowly at first, but it will be the end of technology at the end of the day.
Nobody is more pro-IP on this forum than myself. And I remain willing to defend traditional Copyright, Trademark and Patent law principles. But technology regulation is a gross error, and one that is subtly having a devastating impact on our economy.
We get it. You are an ideologue to whom argument doesn't much matter. So I'll simply stand by what I wrote and agree to disagree with your characterization of the discussion to date.
Two interesting points are raised by your amusing remarks:
1) Copyright isn't a "copy right." Copyright grants no right at all, merely a right to exclude. And ownership of a copyright doesn't insure the right to make copies of it -- you can own the copyright unencumbered to a work and still be barred from republication of your own work.
2) You are absolutely correct that copyright doesn't protect ideas. I'm not sure how you define "information," so I can't comment on the latter point. I don't particularly have any problem with or commitment to the term "Intellectual Property" -- as with most generic terms it suffers from not being wholly precise, but I don't think it requires or implies what you say it does, nor does it preclude it. Alas, IP as practiced does include many kinds of law that is not property, at least constitutionally, such as unfair competition rights and the like.
However, there is simply no credible quibble that copyrights and patents are not property. The proposition is losing on every front, whether legal, linguistic or practical (which is why he abandoned those points it for his new quibble about the term IP when confronted by someone who knew about what he was writing). For this reason, I stand by my suggestion that the prior remarks of my colleague manyoso are whooey.
It's an informative and accurate meme that need to be spread.
It's neither. It is, in fact, inaccurate and therefore misinforms. Two points:
1) In fact, the owner of a copyright is granted no right to copy. There is a subtle, but important difference between the right to do something, and having an exclusive right to do something. The former is a privilege to perform an act. The latter is the right to exclude another from performing the act.
In short, as an owner, I can use the power of the state to stop, punish or grant me damages if YOU infringe my copyright by making copies.
However, I can also own a copyright in a work, but not have the right to make copies. For example, let's say you permit me to make a derivative work of your book, provided I don't make any copies myself, although some specified publisher could be used for that purpose. I would OWN the exclusive right to keep others from copying (including the specified publisher) the derivative work. But you would OWN the exclusive right to keep me from making any copies of my own work. Weird, but illustrative.
Another common scenario is where I have assigned some, but not all of the exclusive rights to a copyright. If I grant you an exclusive license in my copyright, I can no longer make copies myself.
2) Copyright is not limited to rights to copy. There are six enumerated exclusive rights in a copyright set forth in 17 USC s. 106, reproduction being but one of them.
This idea breaks when you consider that corporations are legal persons, and that they can own copyrights.
Not a problem. At least not a logical problem.
A corporation cannot be an "author" of a copyright in the sense of the statute -- only a natural person. When a natural person assigns a work of authorship to the corporation, the term is measured by the life of the natural person, not the "corporation."
The only other case is the infamous "work made for hire," where the corporation is treated like an author. In the case of a work made for hire, however, the statute does not define the term of the copyright to be life-based, but rather for a (very long) fixed term, presently 120 years.
This is sheer wordplay. Through nothing more than namecalling and gainsay, the author tries to redefine the meaning of the word "property" to exclude things he would prefer not to consider property. His points fail on the merits on almost every reasonable basis
Of course, gainsaying gainsay proves nothing either, but this argument is so stupid that it almost deserves no more. Any plausible definition of property in a dictionary (plain or legal) belies the proposition: try Webster's Third New International, and Black's Law dictionary, which of course, includes Copyrights and Patents expressly.
Arguing that copyrights are not identical to real estate proves nothing, as does arguing that they are not identical to a car. True, intangible personal property is slightly different from tangible personal property, which in turn is slightly different from real property. They also have things in common (besides being forms of property) -- they grant exclusive rights.
The temporal argument is wildly incorrect. There are zillions of property rights that are time-limited. The gainsay above simply ignored the substantive response by saying, ludicrously, that time-limited rights are "not yours." (Try explaining that to any person who has been ejected from property that is merely a life estate, or who has been found liable for substantial damages for infringement).
The fair use argument is likewise losing. Many "social rights" are common to all forms of property. Your right in your home is not absolute. I am privileged in many cases to make uses of easements, easements by necessity, and otherwise to enter or to use your real or personal property under various circumstances. The circumstances are limited, prescribed for particular social purposes and do not make you house or car any less a "property" asset.
In short, the argument given by the author of the preceding note is sophomoric and patently incorrect. It was non-responsive to the well-considered argument preceding it that addressed the issues point-by-point. There may be an argument that IP isn't, but that certainly wasn't it.
Perhaps the author will respond, if at all, less with gainsay than with a substantive definition he proposes to substitute for the English word "property," and then explain why anyone else but him should be using it.
The links is way to conclusory for me even to figure out what they are talking about. It is unclear that this really has anything to do with the DMCA at all -- except to the extent that the DMCA affirmatively HELPS service providers with an express safe harbour. (That was more or less the state of the law after the Netcom case anyway.) It is possible also that the particular provider may have been scared off by his own overcautious counsel -- we just can't tell from what I can see.
Does anyone have a link to the actual demand/notice letters or a more detailed account so that we can figure out what is what?
Although they seem to be busting them for fraud via spam rather than just the fact that they spam,
This is unsurprising, because the FTC Act only governs conduct that constitutes "deceptive and unfair trade practices."
in areas that experience significant rainfall and rainy season storms?
Let the content providers whine -- it will ultimately undercut their chances in the relevant marketplace.
Imagine how MPAA will scream beforehand how this will kill their business. Imagine how few actual pirated copies will be released or available, PARTICULARLY if they do an even moderately decent job of policing.
Then, watch as the film in fact sets industry records as a blockbuster hit.
Thus, proving ultimately by clear example that the claims of DAMAGES from piracy are hopelessly overblown. Sure, a few potential future DVD sales may have been lost by such releases. (Count 'em on your hand!) So what? They will make a fortune.
Moreover, consider how absolutely ineffective anything but the most draconian technology regulation would be to slow or stop this minor dribble of piracy -- it will happen regardless of the fundamental social changes the content industry attempts to foist upon American and international technology markets, will accomplish little, and wasn't needed in the first place.
I do not account for the criminal terminology, as that is not my baliwick. In the civil domain, however, particular in patent litigation -- an area in which I practice, you have it exactly backwards.
A case dismissed with prejudice may not be renewed, permitting an absolute defense of claim or issue preclusion (res judicata and collateral estoppel). A case dismissed without prejudice may be renewed without permitting a prior adjudication defense, subject to statutes of limitation and other time bars that may get in the way.
Moreover, the voluntary dismissal might give rise to an inference that none of the alleged inferences create irreparable harm (otherwise how could they have dismissed?), possibly precluding certain forms of injunctive relief.
The most common kind of internet security failure derives, it would seem, from buffer overflows on the internet.
These buffer overflows invariably arise from unsatisfactory bound checking -- one of the simplest kinds of bugs, and are easily exploited these days by script kiddies.
Examples are too numerous to mention.
I typed too quickly... I certainly didn't mean to suggest USA is barred to distribute its own public domain works when derived from non-GPL, but rather to note that it has no power to limit or restrict any person's use of those public domain aspects of the work. Hence the USA has no power to "cause" the derivative work "to be licensed as a whole . . . under the terms of the license."
Thus, it would appear that the US could modify the work for its internal use, but would not be able to distribute it without breaching the GPL.
the courts told them to do so. What else could they do? The wiser move might well be to do something else, but whose wisdom should apply? I do not presume to be wiser than the French government, although upon noting this humble view, I respectfully find their speech regulation problematic and ultimately ineffective. Still, they, not I, get to decide what is French law. Google wants to participate in France. What else could they do?
Vagueness such as this rarely helps the plaintiff. Consider Claim 1:
Ordinarily, the preamble is not read into the claim, although it certainly can be in appropriate cases. But here --assuming, a bad assumption, that it actually serves as a claim limitation--, the addition of the words "a variety of" works to the detriment of the plaintiff. (Consider the fragment with those words deleted). In the absence of the language, the fragment is far broader, referring to all information, goods and services. With the language, which must be read to mean SOMETHING, a narrower set of possibilities is considered.
Does it mean: more than one thing, where each thing is either information a good or service; more than one thing, and different things, where each thing in one of the categories; or more than one thing, with things in two or more of the categories? Answers are found in the spec, the prosecution history and elsewhere, and it is stuff like this that gives defendants a chance.
Dissing new media is the content-maker's well-honed tradition. The piano-roll was going to kill music sales. The radio would devastate music, as would the audio tapes. G-d save us from the death of everyone after the television. And the VCR case had to go to the Supreme Court. Then the DAT, the CD and now the DVD.
In every case, savvy content people got bigger and bigger and bigger, wealthier and wealthier, precisely because of the new media, not in sprite of it.
Yes, theatres and hollywood had better get the message clearly -- they serve a marketplace, not the other way around. Those that get it will prosper, those that don't will fail.