I don't think there is any statutory exemption for the U.S. government in the patent act. (There is an express statement that States are not exempt, although the Supreme Court struck that down a few years back.) If I am mistaken, I'd be pleased to see a citation to the provision.
What government can do, of course, is to seize the patent, indeed ANY PROPERTY, all or in part through its power of eminent domain. Thus, no injunction can issue against the government. It's good to be the king.
The problem here is this -- it ain't free. The Fifth Amendment expressly provides that the taking of property for public use requires "just compensation." In fact, there is a special federal court that was created for and exists just to handle such claims: the United States Court of Claims.
Accordingly, I suggest that the iniitial poster was mistaken.
As easy as it is for me to want to side with RIM, and be excited that this last patent was thrown out...
That isn't the case. The USPTO, on its own motion, placed these patents through a process called reexamination, in which each patent claim allowed is subject to review for subtantial new questions of patentability not previously considered by the office. So an examiner takes a new bite at the apple, based on new prior art, and reexamines te claims in view of the new art.
All that happened here, is that what is called an "iniitial official action" was issued, laying out the examiner's case that there existed new prior art that could invalidate the patent. First action rejection of all claims, which didn't happen in this case, is ROUTINE in ALMOST EVERY patent examination, and rarely indicates that the patent claims are in doubt. The next step is that the applicant files a response, either defending the claims as originally allowed, or introducing amendments or amended claims and defending them. It is then ROUTINE in MOST applications, that some or all patent claims are allowed to issue, either as originally filed or with some amendments.
So, if a single claim of a single patent survives unscathed, or allowed and amended claims are narrower but still infringed, nothing gets better for RIM.
The fact of initial rejections indicate nothing -- it is just another point of leverage for a settlement negotiation.
This is not the first time this has been pointed out in these letters.
What does it say about the US Patent office and software patents that these patents have made it through trials, appeals, etc and only now has the Patent Office decided they weren't any good in the first place?
This is ridiculous question. What do you think it says? The timing arises from a corrupt decision led by pure politics, driven by the U.S. Senate, caused the PTO to take up a Commissioner's reexamination, to protect a non-US company from an injunction.
Does it mean that the initial examination by the PTO was substandard? Of course not -- in fact, that very question was the point of the trial and two appeals. RIM, spending kazillions to search the world for prior art and multi-kazillions on lawyers to tear the patent and PTO to shreds, couldn't convince either a jury or the Federal Circuit that the patents were less than airtight. It was simply the economic and political fallout of a possible injunction that led to this "hail mary" pass.
Does this mean that the present rejections raise new doubt about the patents? Not necessarily, and probably not. It is ROUTINE for the PTO to initially reject all claims of a patent on an initial office action, and this may be nothing more than a perfunctory "through the paces" rejection. I don't really know how much trouble the patents are in (and not all claims were rejected by the way), because I have not studied the documents, but I find it astonishing that there would be any better prior art than was considered by the courts before. So much money was spent to defend RIM in this all-or-nothing case, it is hard to believe that any substantial new question of patentability could now arise. In any case, only time will tell. And even if there is a final rejection of each adjudicated infringed claim in each patent, there will be an administrative appeal, and then an appeal to the Federal Courts, which have so far been unimpressed by the claims of invaliidty.
Do not be surprised, however, if the patents reissue with the original claims (only one claim of many asserted is needed!), or claims not materially weaker than they began.
Don't speak ill of the dead, particularly when you are clueless.
Jef was a beautiful man, a great father, husband and friend. He was a brilliant, playful, gentle, sweet and wonderful fellow, who was ever content with his life, his work and his family. While he was certainly disappointed by others from time to time in his remarkable life, and the world never quite accepted his iconoclastic sense of right and wrong, there was not a bitter bone in his body.
He had an inchoate vision of a "right" UI that strongly influenced those around him. Quibbling about his paternity of the "final form of the Macintosh" is foolish and futile, and ultimately misses the point. His influence remains for all to see. To the very end, he continued to evangelize for his vision of the ultimate personal computer, and he has left inspired progeny to carry that work forward.
His contributions were great. His visions were fascinating and tempting. Most of all, his passions were infectious and wonderful.
The issuance of non-final rejections in a patent case before the PTO is all but routine -- indeed, it is rare that the PTO does not issue at least one non-final rejection of one or more claims in a patent application or reexamined patent. Please take the time to learn what a non-final rejection is and means. To suggest that mailing of an office action constitutes "invalidation" of a patent is to manifest supreme ignorance of the patent process.
The Supreme Court did not give a reason for its rejection of Microsoft's appeal.
And they (almost) never do. Unlike appeals to Circuit courts, there is no right of appeal to the Supreme Court. Rather, a losing appellant in a Circuit court must petition the Supreme Court for certiorari (for an order directing the Circuit court to send them the record for review). The vast majority of these petitions are denied, the Court taking up only those cases raising important questions of law, and then only after there is a conflict among the Circuits or a matter of great public interest.
It takes four justices to grant cert. Petitions are routinely granted or denied in an order listing cases, although sometimes a dissent is written.
It really doesn't matter where you come out on the question whether ID is philosophy or science (of course, this isn't a close question -- clearly it is not science), the censorship of the use of good content beneficial to students because you don't like other things done by the school boards is a boneheaded idea.
The best cure for bad speech is more speech. Nothing at all, anywhere, keeps you from showing kids the probalems with ID. Spend your research there. Withhold accreditations, by all means, if non-science is taught as science (BUT BE CAREFUL -- legitimate criticisms about non-falsifiability can likewise be made about string theory), but don't withhold good stuff.
When scientists start censoring the truth, you just establish a vacuum for the witch-doctors to install their own content. Bad news all around.
Sounds like he is wishing there was an application like Aperture on his PC. Last week, he criticized journalists writing about Apple's inventiveness and capacity to create products customers want as having conflict-of-interest, because they use Apple products. Today, he wishes openly for innovation and commitment to product need.
if the eula is ridiculous, don't buy the code. buy someone else's or write your own.
I haven't seen too many over the top Eulas recently as to this issue, other than, you know, GPL and BPL, which assume no responsibility whatsoever, and strictly limit liability and warranty.
In contrast, of course, we have most commercial EULA's, which at least warrant substantial conformity to documentation, with a commitment to repair or replace or, at least, return your payments. For the most part, this is what the market really needs. They don't expect the vendor to be liable for loss of data that could be backed up, or the loss of business as a result of the failure of the software.
And if you are right that the market prefers that, then you can of course compete with a better warranty -- in which case you will have a competitive advantage. If you are mistaken, you will lose your shirt. That is the way it works.
First, of all, there is, so far as I can tell, there exist no non-tivial programs that are free from error. Indeed, there are no non-trivial programs sufficiently well-specified so that one can objectively discern whether there in fact exists an error. Even if I am wrong on these points, the outlier examples are so far, narrow and expensive as to be pointless -- nobdoy wants to pay what it costs to specify, design and impelment demonstrably correct code.
Given that code is buggy, all the law and market should do is efficiently and effectively allocate the risk and costs of error. The commercial law is, quite frankly, pretty good at this sort of thing.
Let the market decide how tolerant it will be about receiving buggy software. Let each business decide for itself how carefully it should produce code, so long as they are not fraudulent or misleading in selling their programs.
Let the market decide how much risk it is willing to accept for the consequences of the unavoidable reality of computer program error. If substantial conformity with documentation is enough -- almost certainly true for most consumer applications -- then let the market decide it doesn't want to pay for more.
Let the market decide how much of that risk it is willing to deal with -- what remedy do they want? Repair or replacement? Or money back? or more? If a party is willing to accept reaosnable efforts to repair followed by refund, a vendor is going to provide software for cheaper than if it were liable for consequential remedies.
Yes, we could pass laws to interfere with market forces. But would that be better or worse than the status quo?
Do you really believe that the operators of these on-line "casinos" are above playing poker against you while they can watch your hands, or when they can tell the computer what to deal next?
Of course. There simply isn't an economic incentive for them to cheat.
The money made by running a casino regarded as honest is simply too good to risk by lame expedients such as automated shilling and cheating. They take a percentage out of every hand, and run kazillions of hands a minute. Their customers are absolutely flexible to move from site to site, and typically do based upon the current range of promitions. The day they are tracked or caught, all that goes away.
Poker bots do not reduce the rake taken by the casino -- the house makes the same dollars every day.
Poker bots steal from the players -- the REAL PEOPLE who are being suckered. And what is worse, because these bots in fact suck, they only take money from the weakest tiers of players -- who are least likely to realize they are being taken.
Recalculate -- these guys are arrogant and evil. Is it any surprise this guy went to Oral Roberts U?
How can a newspaper setup an IT system that completely hides every trace (including emails, phone calls notes, logs and so forth) of an anonymous source's identity?"
How about this one:
How can a newspaper reporter rely on such a source under any circumstance?
As understoood, anonymous sources means that the source is not named, not that the reporter has no idea who he/she/it is. Reliance on someone who won't go on-record, and who won't even identify himself to the reporter is incompetent journalism, and I pray that the fourth estate is not so jaded as to believe there is any journalistic integrity to such a thing.
None of which rules out the possibility of the judge taking fiduciary action on all or some of Novell's claims.
These words are legal nonsense. Gobbledegook cobbled together from various phrases. Your willingness to not rule out arbitrary and capricious lawmaking has nothing to do with the case -- the analysis procedes simply and, certainly compared to this colloquy, logically: what is the legal standard -- the elements for a constructive trust, and whether the facts make out those elements. No amount of geekie wishmanship or gainsay will change the analysis.
What you're saying, just isn't true for MacOS. You can walk into a retail store and buy MacOS . ..
Sorry, you are simply mistaken, at least under applicable case law. State contract law will govern the nature of this transaction, and the vast majority of cases support the enforceability of the shrink-wrap and click-wrap provisions. Please carefully review your EULA today, and advise if you still think you own the copy.
Th ecounrt would not want to be in a situation where teh plaintiff gets to burn all their assets in litigation, flame out, and at last not have the money to pay the winner. That would be setting up the innocent parties in the lawsuit for a pyrrhic victory.
The court has no interest one way or another whether its judgment is collectible. That is the problem of the plaintiff. You are certainly right that there is little you can do to shut down a judgment-proof creditor, even while he has some cash left. It isn't right, it isn't fair. But the law only provides one remedy, in the absence of a fidcuiary duty or fraud: avoidance actions in bankruptcy to reverse fraudulent transfers.
Would we be in agreement that newSCO has some fiduciary responsibilities for existing contracts?
Not even close to agreement. Assumpsit, the law of contracts, is an entirely separate body of law. While a contract can expressly create a fiduciary duty ("If you pay me, I agree to be your trustee"), this doesn't come close to that pattern.
Are you saying that because newSCO ignored the contract to create new licenses they have no fiduciary duty to Novell on those licenses?
You miss my point. A constructive trust is an extraordinary form of relief. Absent fiduciary duty or fraud, a company is ordinarily free to act autonomously until a judgment is entered against it and the judgment has been executed. This will be even more unlikely in the absence of proof that SCO isn't trying to make money with its money -- courts do not presume to be able to do better investing the money than the defendant.
Despite your sense of what is right and what is just, the plaintiff in this case is only one of many potential creditors.
Tell you what. Let's wait and see what happens, and the reasons the court gives for it. That might give us a better sense of who is right.
how is paying for mac os x and installing it on an x86 computer you already own, copyright infringement?
You didn't pay for the software, you paid for a license with respect to the software. Your subsequent reproduction, distribution or derivation from the software is only permitted to the extent it is within the scope of your license. If the license doesn't permit you to install it on an x86 computer you already own, you have engaged in copyright infringement.
Section 117 of the Copyright Act won't help you unless you are an owner of the copy you possess. But read the fine print -- you didn't buy the copy, which was retained by apple, you bought the media on which the copy is stored. Legal title to the copy remained with Apple, so Sections 117 and 109 of the Act don't apply.
Damn, that sucks, but that's the way it is. . .
And oh, by the way, if you continue to sit tight and do nothing about this sucky state of the law, it will only get worse. The 8th Circuit is now deciding whether shrink-wrap contracts can permit a waiver of fair use, a decision already made by the Federal Circuit in an earlier case.
In the absence of a fiduciary duty or fraud, it would be extraordinary for a court to award money in the absence of entering judgment. This is particularly so if it would cripple the grantor to the constructive trust.
Consider the fairness to previously existing creditors, including secured creditors, who believe they might have priority as to these assets, particularly if there is a risk of bankruptcy.
The response is simple. If you want to secure your assets in any credit scenario, negotiate advances or a security interest, and then seek such relief you may want in bankruptcy.
I would be very surprised to see the Judge do anything, regardless of his sympathies on the merits.
Usually, you don't have to make a big proof of facts. During a deposition, you ask a witness whether the website said such-and-such at a given time. You show them the document, and ask again. Since there is high probability the archive.org content is unadulterated, the witness is usually pretty dumb to deny under oath, and more often will simply admit and authenticate the document.
Sometimes, they may shrug their shoulders, and the best you can get is a "dunno," and acknowledgment that they can't deny whether it said what it said at that time, but don't know that it did. Many witnesses cannot do this credibly, without diminishing their credibility when they later testify they are sure about something else, but the facts dictate the likelihood that depositions and admission can get you all the evidence you need, and the document becomes more of a demonstrative exhibit than principal evidence.
If that doesn't work, you have two threshold evidentiary issues: (1) authenticating the document as legit; and (2) overcoming the hearsay rule.
Authentication isn't hard. You get a declaration from archive.org saying it is a legit business record, and the other side rarely has any evidence to the contrary. That will be enough to get it in, and probably enough for the jury to give it credence.
Then you have the hearsay problem, which may be one-way or two-way hearsay. The document is a record of Archive saying that susie.com said "Jimmy eats rice" on a particular date, and is being offered for the truth of that statement. It may also be offered for the truth of the proposition that "Jimmy eats rice," as opposed to the mere proposition that "Suzie said 'Jimmy eats rice'" in which case it is double hearsay.
There are a host of exceptions that may be applicable in every particular case. The primary hearsay issue is routinely overcome using the business records exception, and other exceptions may or may not apply depending upon the nature of the statement, the party making the statment, independent indicia of credibility and so forth. It is both easier and harder than it seems to solve these problems, and this kind of stuff is why you pay lawyers the big bucks.
Maybe not conceptually, but before archive.org, there simply was no one doing this. We don't know today, which website pages today, if we could reconstruct them, would be worth $10M as evidence for a legal case. Wayback gives us the answer, because it captures nearly all the web.
The point is that in many cases today, the contents of a website over time can be gold. I have cracked many cases this way -- it used to be my secret weapon. Now everybody knows. Darn.
Give people what they want, and they will come. Free is nice, but nice is better! People want convenience, quality and convenience, and will pay for that.
RIAA couldn't deliver the promise of the tech with their business model, so they instead tried to shut down the tech. Hopefully, SCOTUS won't permit that, and we'll know soon enough.
Meanwhile, let it be remembered, you CAN compete with free.
Slashdot Mirror
I don't think there is any statutory exemption for the U.S. government in the patent act. (There is an express statement that States are not exempt, although the Supreme Court struck that down a few years back.) If I am mistaken, I'd be pleased to see a citation to the provision.
What government can do, of course, is to seize the patent, indeed ANY PROPERTY, all or in part through its power of eminent domain. Thus, no injunction can issue against the government. It's good to be the king.
The problem here is this -- it ain't free. The Fifth Amendment expressly provides that the taking of property for public use requires "just compensation." In fact, there is a special federal court that was created for and exists just to handle such claims: the United States Court of Claims.
Accordingly, I suggest that the iniitial poster was mistaken.
As easy as it is for me to want to side with RIM, and be excited that this last patent was thrown out...
That isn't the case. The USPTO, on its own motion, placed these patents through a process called reexamination, in which each patent claim allowed is subject to review for subtantial new questions of patentability not previously considered by the office. So an examiner takes a new bite at the apple, based on new prior art, and reexamines te claims in view of the new art.
All that happened here, is that what is called an "iniitial official action" was issued, laying out the examiner's case that there existed new prior art that could invalidate the patent. First action rejection of all claims, which didn't happen in this case, is ROUTINE in ALMOST EVERY patent examination, and rarely indicates that the patent claims are in doubt. The next step is that the applicant files a response, either defending the claims as originally allowed, or introducing amendments or amended claims and defending them. It is then ROUTINE in MOST applications, that some or all patent claims are allowed to issue, either as originally filed or with some amendments.
So, if a single claim of a single patent survives unscathed, or allowed and amended claims are narrower but still infringed, nothing gets better for RIM.
The fact of initial rejections indicate nothing -- it is just another point of leverage for a settlement negotiation.
This is not the first time this has been pointed out in these letters.
What does it say about the US Patent office and software patents that these patents have made it through trials, appeals, etc and only now has the Patent Office decided they weren't any good in the first place?
This is ridiculous question. What do you think it says? The timing arises from a corrupt decision led by pure politics, driven by the U.S. Senate, caused the PTO to take up a Commissioner's reexamination, to protect a non-US company from an injunction.
Does it mean that the initial examination by the PTO was substandard? Of course not -- in fact, that very question was the point of the trial and two appeals. RIM, spending kazillions to search the world for prior art and multi-kazillions on lawyers to tear the patent and PTO to shreds, couldn't convince either a jury or the Federal Circuit that the patents were less than airtight. It was simply the economic and political fallout of a possible injunction that led to this "hail mary" pass.
Does this mean that the present rejections raise new doubt about the patents? Not necessarily, and probably not. It is ROUTINE for the PTO to initially reject all claims of a patent on an initial office action, and this may be nothing more than a perfunctory "through the paces" rejection. I don't really know how much trouble the patents are in (and not all claims were rejected by the way), because I have not studied the documents, but I find it astonishing that there would be any better prior art than was considered by the courts before. So much money was spent to defend RIM in this all-or-nothing case, it is hard to believe that any substantial new question of patentability could now arise. In any case, only time will tell. And even if there is a final rejection of each adjudicated infringed claim in each patent, there will be an administrative appeal, and then an appeal to the Federal Courts, which have so far been unimpressed by the claims of invaliidty.
Do not be surprised, however, if the patents reissue with the original claims (only one claim of many asserted is needed!), or claims not materially weaker than they began.
Don't speak ill of the dead, particularly when you are clueless.
Jef was a beautiful man, a great father, husband and friend. He was a brilliant, playful, gentle, sweet and wonderful fellow, who was ever content with his life, his work and his family. While he was certainly disappointed by others from time to time in his remarkable life, and the world never quite accepted his iconoclastic sense of right and wrong, there was not a bitter bone in his body.
He had an inchoate vision of a "right" UI that strongly influenced those around him. Quibbling about his paternity of the "final form of the Macintosh" is foolish and futile, and ultimately misses the point. His influence remains for all to see. To the very end, he continued to evangelize for his vision of the ultimate personal computer, and he has left inspired progeny to carry that work forward.
His contributions were great. His visions were fascinating and tempting. Most of all, his passions were infectious and wonderful.
The issuance of non-final rejections in a patent case before the PTO is all but routine -- indeed, it is rare that the PTO does not issue at least one non-final rejection of one or more claims in a patent application or reexamined patent. Please take the time to learn what a non-final rejection is and means. To suggest that mailing of an office action constitutes "invalidation" of a patent is to manifest supreme ignorance of the patent process.
Isn't this preempted by FCC law?
The Supreme Court did not give a reason for its rejection of Microsoft's appeal.
And they (almost) never do. Unlike appeals to Circuit courts, there is no right of appeal to the Supreme Court. Rather, a losing appellant in a Circuit court must petition the Supreme Court for certiorari (for an order directing the Circuit court to send them the record for review). The vast majority of these petitions are denied, the Court taking up only those cases raising important questions of law, and then only after there is a conflict among the Circuits or a matter of great public interest.
It takes four justices to grant cert. Petitions are routinely granted or denied in an order listing cases, although sometimes a dissent is written.
It really doesn't matter where you come out on the question whether ID is philosophy or science (of course, this isn't a close question -- clearly it is not science), the censorship of the use of good content beneficial to students because you don't like other things done by the school boards is a boneheaded idea.
The best cure for bad speech is more speech. Nothing at all, anywhere, keeps you from showing kids the probalems with ID. Spend your research there. Withhold accreditations, by all means, if non-science is taught as science (BUT BE CAREFUL -- legitimate criticisms about non-falsifiability can likewise be made about string theory), but don't withhold good stuff.
When scientists start censoring the truth, you just establish a vacuum for the witch-doctors to install their own content. Bad news all around.
... who know how to use a Macintosh.
Sounds like he is wishing there was an application like Aperture on his PC. Last week, he criticized journalists writing about Apple's inventiveness and capacity to create products customers want as having conflict-of-interest, because they use Apple products. Today, he wishes openly for innovation and commitment to product need.
if the eula is ridiculous, don't buy the code. buy someone else's or write your own.
I haven't seen too many over the top Eulas recently as to this issue, other than, you know, GPL and BPL, which assume no responsibility whatsoever, and strictly limit liability and warranty.
In contrast, of course, we have most commercial EULA's, which at least warrant substantial conformity to documentation, with a commitment to repair or replace or, at least, return your payments. For the most part, this is what the market really needs. They don't expect the vendor to be liable for loss of data that could be backed up, or the loss of business as a result of the failure of the software.
And if you are right that the market prefers that, then you can of course compete with a better warranty -- in which case you will have a competitive advantage. If you are mistaken, you will lose your shirt. That is the way it works.
First, of all, there is, so far as I can tell, there exist no non-tivial programs that are free from error. Indeed, there are no non-trivial programs sufficiently well-specified so that one can objectively discern whether there in fact exists an error. Even if I am wrong on these points, the outlier examples are so far, narrow and expensive as to be pointless -- nobdoy wants to pay what it costs to specify, design and impelment demonstrably correct code.
Given that code is buggy, all the law and market should do is efficiently and effectively allocate the risk and costs of error. The commercial law is, quite frankly, pretty good at this sort of thing.
Let the market decide how tolerant it will be about receiving buggy software. Let each business decide for itself how carefully it should produce code, so long as they are not fraudulent or misleading in selling their programs.
Let the market decide how much risk it is willing to accept for the consequences of the unavoidable reality of computer program error. If substantial conformity with documentation is enough -- almost certainly true for most consumer applications -- then let the market decide it doesn't want to pay for more.
Let the market decide how much of that risk it is willing to deal with -- what remedy do they want? Repair or replacement? Or money back? or more? If a party is willing to accept reaosnable efforts to repair followed by refund, a vendor is going to provide software for cheaper than if it were liable for consequential remedies.
Yes, we could pass laws to interfere with market forces. But would that be better or worse than the status quo?
Do you really believe that the operators of these on-line "casinos" are above playing poker against you while they can watch your hands, or when they can tell the computer what to deal next?
Of course. There simply isn't an economic incentive for them to cheat.
The money made by running a casino regarded as honest is simply too good to risk by lame expedients such as automated shilling and cheating. They take a percentage out of every hand, and run kazillions of hands a minute. Their customers are absolutely flexible to move from site to site, and typically do based upon the current range of promitions. The day they are tracked or caught, all that goes away.
Poker bots do not reduce the rake taken by the casino -- the house makes the same dollars every day.
Poker bots steal from the players -- the REAL PEOPLE who are being suckered. And what is worse, because these bots in fact suck, they only take money from the weakest tiers of players -- who are least likely to realize they are being taken.
Recalculate -- these guys are arrogant and evil. Is it any surprise this guy went to Oral Roberts U?
How can a newspaper setup an IT system that completely hides every trace (including emails, phone calls notes, logs and so forth) of an anonymous source's identity?"
How about this one:
How can a newspaper reporter rely on such a source under any circumstance?
As understoood, anonymous sources means that the source is not named, not that the reporter has no idea who he/she/it is. Reliance on someone who won't go on-record, and who won't even identify himself to the reporter is incompetent journalism, and I pray that the fourth estate is not so jaded as to believe there is any journalistic integrity to such a thing.
None of which rules out the possibility of the judge taking fiduciary action on all or some of Novell's claims.
These words are legal nonsense. Gobbledegook cobbled together from various phrases. Your willingness to not rule out arbitrary and capricious lawmaking has nothing to do with the case -- the analysis procedes simply and, certainly compared to this colloquy, logically: what is the legal standard -- the elements for a constructive trust, and whether the facts make out those elements. No amount of geekie wishmanship or gainsay will change the analysis.
What you're saying, just isn't true for MacOS. You can walk into a retail store and buy MacOS . . .
Sorry, you are simply mistaken, at least under applicable case law. State contract law will govern the nature of this transaction, and the vast majority of cases support the enforceability of the shrink-wrap and click-wrap provisions. Please carefully review your EULA today, and advise if you still think you own the copy.
Th ecounrt would not want to be in a situation where teh plaintiff gets to burn all their assets in litigation, flame out, and at last not have the money to pay the winner. That would be setting up the innocent parties in the lawsuit for a pyrrhic victory.
The court has no interest one way or another whether its judgment is collectible. That is the problem of the plaintiff. You are certainly right that there is little you can do to shut down a judgment-proof creditor, even while he has some cash left. It isn't right, it isn't fair. But the law only provides one remedy, in the absence of a fidcuiary duty or fraud: avoidance actions in bankruptcy to reverse fraudulent transfers.
That's just the way it is.
Would we be in agreement that newSCO has some fiduciary responsibilities for existing contracts?
Not even close to agreement. Assumpsit, the law of contracts, is an entirely separate body of law. While a contract can expressly create a fiduciary duty ("If you pay me, I agree to be your trustee"), this doesn't come close to that pattern.
Are you saying that because newSCO ignored the contract to create new licenses they have no fiduciary duty to Novell on those licenses?
Yes.
You miss my point. A constructive trust is an extraordinary form of relief. Absent fiduciary duty or fraud, a company is ordinarily free to act autonomously until a judgment is entered against it and the judgment has been executed. This will be even more unlikely in the absence of proof that SCO isn't trying to make money with its money -- courts do not presume to be able to do better investing the money than the defendant.
Despite your sense of what is right and what is just, the plaintiff in this case is only one of many potential creditors.
Tell you what. Let's wait and see what happens, and the reasons the court gives for it. That might give us a better sense of who is right.
The United States Supreme Court struck down the Texas sodomy statutes in 2003 on privacy grounds, so fear not.
Maybe there is still a chance for technology?
how is paying for mac os x and installing it on an x86 computer you already own, copyright infringement?
You didn't pay for the software, you paid for a license with respect to the software. Your subsequent reproduction, distribution or derivation from the software is only permitted to the extent it is within the scope of your license. If the license doesn't permit you to install it on an x86 computer you already own, you have engaged in copyright infringement.
Section 117 of the Copyright Act won't help you unless you are an owner of the copy you possess. But read the fine print -- you didn't buy the copy, which was retained by apple, you bought the media on which the copy is stored. Legal title to the copy remained with Apple, so Sections 117 and 109 of the Act don't apply.
Damn, that sucks, but that's the way it is. . .
And oh, by the way, if you continue to sit tight and do nothing about this sucky state of the law, it will only get worse. The 8th Circuit is now deciding whether shrink-wrap contracts can permit a waiver of fair use, a decision already made by the Federal Circuit in an earlier case.
Pretty soon, you will have nothing left..
In the absence of a fiduciary duty or fraud, it would be extraordinary for a court to award money in the absence of entering judgment. This is particularly so if it would cripple the grantor to the constructive trust.
Consider the fairness to previously existing creditors, including secured creditors, who believe they might have priority as to these assets, particularly if there is a risk of bankruptcy.
The response is simple. If you want to secure your assets in any credit scenario, negotiate advances or a security interest, and then seek such relief you may want in bankruptcy.
I would be very surprised to see the Judge do anything, regardless of his sympathies on the merits.
Usually, you don't have to make a big proof of facts. During a deposition, you ask a witness whether the website said such-and-such at a given time. You show them the document, and ask again. Since there is high probability the archive.org content is unadulterated, the witness is usually pretty dumb to deny under oath, and more often will simply admit and authenticate the document.
Sometimes, they may shrug their shoulders, and the best you can get is a "dunno," and acknowledgment that they can't deny whether it said what it said at that time, but don't know that it did. Many witnesses cannot do this credibly, without diminishing their credibility when they later testify they are sure about something else, but the facts dictate the likelihood that depositions and admission can get you all the evidence you need, and the document becomes more of a demonstrative exhibit than principal evidence.
If that doesn't work, you have two threshold evidentiary issues: (1) authenticating the document as legit; and (2) overcoming the hearsay rule.
Authentication isn't hard. You get a declaration from archive.org saying it is a legit business record, and the other side rarely has any evidence to the contrary. That will be enough to get it in, and probably enough for the jury to give it credence.
Then you have the hearsay problem, which may be one-way or two-way hearsay. The document is a record of Archive saying that susie.com said "Jimmy eats rice" on a particular date, and is being offered for the truth of that statement. It may also be offered for the truth of the proposition that "Jimmy eats rice," as opposed to the mere proposition that "Suzie said 'Jimmy eats rice'" in which case it is double hearsay.
There are a host of exceptions that may be applicable in every particular case. The primary hearsay issue is routinely overcome using the business records exception, and other exceptions may or may not apply depending upon the nature of the statement, the party making the statment, independent indicia of credibility and so forth. It is both easier and harder than it seems to solve these problems, and this kind of stuff is why you pay lawyers the big bucks.
Maybe not conceptually, but before archive.org, there simply was no one doing this. We don't know today, which website pages today, if we could reconstruct them, would be worth $10M as evidence for a legal case. Wayback gives us the answer, because it captures nearly all the web.
The point is that in many cases today, the contents of a website over time can be gold. I have cracked many cases this way -- it used to be my secret weapon. Now everybody knows. Darn.
Give people what they want, and they will come. Free is nice, but nice is better! People want convenience, quality and convenience, and will pay for that.
RIAA couldn't deliver the promise of the tech with their business model, so they instead tried to shut down the tech. Hopefully, SCOTUS won't permit that, and we'll know soon enough.
Meanwhile, let it be remembered, you CAN compete with free.