Code should, so far as possible in context and langauge, be self-documenting, which is to say: the code by itself should lead me as far as it can in understanding. Good, well-designed OODLs make this somewhat easier than more traditional straigh-line imperative languages, but all high-level programming languages are capable of such practices.
This means coding standards -- all code doing substantially the same thing should probably look the same. Indentation style should be sound and consistent, and unless strong countervailing arguments exist, all procedures should be very short, very well-named, and be very straightforward. As others have noted, variable names should be as precise and accurate as possible -- and, believe it or not, naming variables and procedures properly all the time is VERY hard.
When code gets written, and you start smelling the "smells" of imperfect code, this means it is time to refactor: move variables out of objects to where they belong; collapse classes where appropriate, or break them up where appropriate; rename procedures. break procedures up to clarify (and rename), consolidate procedures to clarify (and rename) and so forth.
An excellent book on refactoring is "Refactoring" by Fowler. Refactor until you shouldn't refactor any more. Then the code, sans smells, should read like a charm.
Then, and only then, will you know what the comments need to say. Comments should be things not possible to express in the code per se, or which couldn't reasonably be understood without deeper analysis. For good, well-factored and self-documenting code, most comments are usually tight, short, rare and VERY helpful. Indeed, most comments in good well-factored code are usually unnecessary for experienced readers -- and too many comments actually get in the way of reading the code.
One last thing -- keep your code comments current. Too often, changes are made in code without countervailing updates in the comments (since compilers tend not to pick up such things. The single worst possible thing is a comment that is wrong. Worse than not commenting at all. And both are heinous. Almost as bad is commenting superfluously or too much.
My view -- write your code right. Then, the comments, when necessary, will be apparent -- kinda' like the code became apparent from writing right.
Indeed, it is one thing for critics of IP to diss technology regulation such as the DMCA and TLAVOTSHB (The Latest Acronym Version of the Stupid Hollings Bill). The key point here, is that principled advocates of strong intellectual property protection, such as myself, feel equally strongly that these laws have no place in America.
Technology regulation is an abomination to the careful balance of intellectual property rights, and affirmatively stunts economic and technological growth. Giving patent-like protections to copyright holders on unpatentable technologies for indefinite terms would be an anathema if proposed as an amendment to the patent system -- why does doing it in defense of the copyright laws make it less awful?
IP works if, and only if, the careful foundations on which it is predicated are followed. Technology regulation is a blight on the face of the IP universe, and is bad on balance for our nation and all of its authors and inventors, whether or not you are a critic of the Copyright Act in the first place.
And the Judin and Antonious cases. It is no longer safe for patent bullies to randomly attack defendants who might hire competent counsel to advise them. We recently used this to excellent effect to "encourage" a patent bully to file Notices of Voluntary Dismissal in seven separate cases. It works.
A cursory read of the website and the patents in suit discloses that these whiners really haven't been terribly well advised as to what is, and what is not claimed. A demand for $30,000 is large enough to justify spending some money on competent counsel to determine the costs and benefits of the settlement.
Suffice it to say, there is more here than meets the eye. These guys need a lawyer, not a website.
A federal court is requiring a private entity to invade the privacy of private citizens -- fascinating. I wonder how the Replay TV customers feel about their conduct being tracked at this degree of granularity. Is such even within the scope of ReplayTV's agreements with their customers?
It would be nice to get a class of consumers to intervene in that action, or to seek some sort of extraordinary write, perhaps a writ of prohibition to keep this court from doing to American citizens what no other branch of government can do.
The issue isn't whether the computer is owned, but whether the copy is owned by the person asserting the Section 109 or 117 right. There is more than ample case law, including the dicta in the cases already cited, the Apple and CMG cases and various other cases on point.
Once again, fair colleagues, rely not upon my ravings or those of my antagonists for your best advices, but rather on the advices of counsel you have hired -- this is hardly a slam-dunk question as some have characterized it, and it would be a shame to lose big because you relied upon the advices read here.
Yes, once upon a time the courts made that ruling. Then congress passed [Section 117]
Wrong, so wrong. Both the Southeastern and MAI cases postdated adoption of Section 117 of the Copyright Act. Both courts held that the defendant was not an "owner" of the copy (the legal significance of the "you are a bailee, not owner" arguments). Like it or not, the Congress reversed the "owner" issue in the MAI case as part of the DMCA, but only when the software is used to maintain a machine. Thus, while the Congress repaired the situation somewhat, at the same time they ratified the earlier Court's decision about its inapplicability to non-title-holders.
There are other cases (also post-Section 117) that tend to cast doubt on the broad construction you would like to assert.
As I said earlier -- don't rely on your own legal advices here, or free advice of others -- this is tricky stuff and you are sure to get your money's worth for the free advice.
Without the EULA, I am free to use my software within the bounds of copyright law.
Which may, in fact, be not at all. Absent the EULA, you have no license. Absent a license, the bounds of the copyright act preclude any reproduction, derivation or distribution of the copy you have. Since USE of software has been treated by the courts as a reproduction (since it entails loading a copy from a fixed disk to RAM), your unlicensed execution of the program may well be violating their copyright. The virtue of the EULA is it gives you a use license. Since you bypassed the EULA, it is unlikely you would prevail on any implied license theory.
In short, if you are serious about this as a legal strategy, please first consult with competent counsel you have engaged who has carefully studied the particular facts of your case. If you are reading this proposal, please consider the source and the possibility that the legal advice in the original posting (and this response -- which is not legal advice by the way) may be worth what you paid for it.
A careful reading of the RMS criticisms seems overreaching. The criticisms are relatively minor, and his commentary appear to be wild overreactions from here. Admittedly, these terms could be repaired, and if it matters someday, they probably will be. But to characterize the license as unacceptable or worse seems to me to go way too far.
I'm not sure what's wrong at the end of the day with a retaliation clause -- such an idea might profit free software products. Imagine if suing someone for infringing a patent by distributing open source software required a company to retask all its servers to use new proprietary systems software.
RMS also complains about the clause requiring commercial distributions to indemnify the supplier as wrongful because it is "quite obnoxious" to require users to indemnify. That clause doesn't apply to users, of course, but only to commercial contributors.
Sales might have had something to do with a global recession, or perhaps other significant events?
The only plausible account is the devastation of Napster. Prior to the Eleventh Circuit decision destroying Napster at the peak of its popularity and success, and flying in the face of the best year the music intustry ever had -- arguably because of massive "try and buy" conduct of an excited marketplace, the RIAA killed the entire rush -- reduced music sharing to a techie corner, and thereby killed one of the best business models for selling music to come in years.
Cause and effect? They killed Napster, now they are losing sales...
The problem with technology regulation is this: it stunts the competitiveness of an economy and depresses innovation and technological improvement. Some regulation, such as intellectual property rights, provide countervailing advantages. But the Hollings Bill does not -- indeed, it works directly contrary to fundamental intellectual property principles.
At its most basic level, the Hollings Bill requires existing technologists to make deals with existing content owners to develop a mutually satisfactory arrangement to provide DRM.
Here is PRECISELY the problem.
Technological innovation and improvement traditionally does not come from existing, vested, interests, but from small upstart entities that shake at their foundations. Sony might be sanguine about regulations that make it difficult to develop new competing formats and technologies, but America would not.
It is these new, inovative technologists, large and small, that the bill ignores -- but these are the people that could make the next "new economy."
And existing copyright owners are quite happy with DRM that protects their existing business models. But new, upstart content makers dissatisfied with existing owners views of a "fair deal," might want to experiment with new business models, perhaps those using new technologies. It is in *this* manner, that a free market promotes the progress of the Sciences and the Useful Arts -- monopolists who are too greedy lose to reasonable commercial substitutes.
In the 80s, smaller new software companies got the idea that customers would not tolerate copy protection any more as hard disks became common on most machines. They started eating large software companies lunch, and eventually the MARKET decreed that disk-based copy protection and code-wheels should be scrapped. Consumers won their victories. Small companies got to compete by taking chances, and new markets were made.
My concern about the stupid Hollings bill is this: it protects existing vested interests without giving these smaller, present non-entities a seat at the table. It enables the government and a few presently large companies to protect a market that a free market might otherwise have turned into a dinosaur.
Until they figure out a way to do DRM without imposing upon a free market for technological media AND IP business models, they can't --and should not-- pass a law of this kind. The movie industry screamed that the VCR would be their end, just as record companies wailed against radio and the tape recorder, let alone the DAT. Heck, people were whining about piano rolls. In each and every case, these technologies MADE money for content people, at least those smart enough to figure out how, despite their whining.
Government tech. reg. of DRM is bad for technological innovation and American competitiveness, bad for, atleast some, new content creators and as noted bad for the existing content creators. It is bad for America.
Most contracts do not require a signature as a legal precondition to their enforceability. It suffices that the plaintiff prove the elements of a contract (offer, acceptance, consideration or a substitute for consideration) and be done, although those elements are often easier to prove where there exists a written and signed contract.
However, certain contracts are only enforceable if there is a legally sufficient memorandum signed by the party against whom the contract is to be enforced. Among these contracts are those concerning the sale of an interest in real estate. The signature is a substantive requirement -- This so-called "statute of frauds" prevents enforcement of a contract, even when there is otherwise compelling evidence of a deal.
The question, then, is whether an e-mail can constitute a legally binding memorandum (is it a writing, is its content sufficient to memorialize the deal for the statute of frauds), and whether the e-mail is signed. Depending upon the e-mail -- and the devil is in the details -- the answer can be a clear and unequivocal "yes" in the United States. There is ample common law to support these cases, but the recently adopted E-SIGN legislation and the e-signature statutes adopted in many states make this a no-brainer in many case.
I don't have any fact sufficient to apply these general ideas to the given case, but that is the framework for analysis of these questions.
In short, typing your name at the end of an e-mail document can constitute a signature in many or most cases. However, this only starts the analysis -- there is also the matter of proving the alleged e-mails are authentic, and that they are unforged and unmodified. In some cases and statutes, there may also be an obligation to prove an "intent to authenticate."
While not the final word on the question, this is a huge issue. As reported, the Microsoft saga with the United States Patent and Trademark Office reflects significant issues with the registrability and enforceability of the WINDOWS mark, although they were ultimately resolved in Microsoft's favor after an appeal. The TARR report there interesting relates that the windows mark is presently the subject of a, perhaps unrelated, cancellation proceeding before the USPTO.
But the difference between a straightforward trademark claim, and one where a serious challenge will be mounted to a mission-critical asset (such as the WINDOWS mark), makes a responsible company far more interested in reaching a settlement or accomodation. But this is Microsoft, who isn't even afraid of the United States Government.
As comfortable as it may seem to think otherwise, there are sometimes when you simply need the advice of counsel. Period.
Do not try this at home, folks. In addition to helping you to be alive to issues that the plain language does not clearly raise, an experienced professional "knows" which terms are truly written in stone, which are routinely dropped when you ask for it, and which are going to require some degree (or a lot) of negotiation depending upon the circumstances.
Get an agent. If its a big deal, get a lawyer just for you, as well as the lawyer the agent uses. Don't give this a second thought -- the costs of negotiating these properly makes all of the difference in the world. Get an agent. Really. Just do it.
Competent representation can alleviate much of these issues. As recently as my last book deal (two years ago), publishers were still following pretty much the standard "dance," with terms no more egregious after negotiations than you might responsibly expect. On the other hand, without advice of counsel, substantial research or experience, you may find the agreement something of a minefield.
The Devil is in the Details
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Abusing the GPL?
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· Score: 3, Interesting
Any lawyer who opines upon such a scenario in the abstract is likely committing malpractice. The Devil is in the details. However, it seems apparent to me that the risk of getting such a blatant end-around probably wildly exceeds any perceived benefits derived therefrom.
I can think of a zillion reasons why the proposition described above would not work, but there simply isn't enough information to answer the question in slam-dunk fashion. Suffice it to say, however, that I am seriously doubtful that such a trivial pretense as a byte-code or object-code copy produced by other means could avoid a claim for copyright infringement.
Even so, to the extent that an "on the edge" defense is being prepared, the defendant had better be right. With such willfullness, a prevailing plaintiff is likely to obtain substantial statutory damages, perhaps as much as $150,000, an award of attorney fees, and an injunction against release of the product. If they made profits from the product in excess of that amount attributable to the taking, a prevailing plaintiff could elect for the greater amount.
In short, a commercial entity that tries to do so may well be poorly advised. But once again, I don't know enough particulars to make a determination one way or the other.
The question they have to ask themselves, "do I feel lucky?"
This means the email connection is 'always on' and the battery life should be good.
Now, I love my Blackberry (although, please consider whether you ever want to be this wired), but my reaction is very much to the contrary.
My experience with my blackberry is that I need to replace the AA almost every other week, even with the "battery saving" option that turns it off at night. I cannot imagine how I could use it in connection with a telephone and expect things to be any better.
Even when you actually were served and given due notice and an opportunity to be heard.
If the facts are as indicated, that no serious effort was made to give the constutitonally required notice before proceeding to seek a default, not only will it be straightforward to obtain vacation, but there may may sometimes be recourse against an attorney who had overreached, and the client on whose behalf it was done.
There will be no trouble vacating a default judgment, but defending the action itself will be another story. One which will depend upon the merits, with respect to which we haven't yet heard the full story.
The "Stupid Hollings Bill," (or TSHB) as we have come to call it, is bad for us and bad for America. It is bad because it is blatant protectionism of a small class of persons (who already have received their Constitutional quota of protection with respect to the underlying rights in a Copyright and Patent) at great cost to the rest of us. It is bad for the same reasons that all economic regulation is bad -- it invites capital to go to places other than America.
Whatever can be said about intellectual property laws, they are grounded in a fundamental need to balance conflicting interests -- the interest in giving incentives to talent to create, and the interest of giving those who follow and stand on the shoulders of those giants to innovate therefrom. IP, when properly balanced, stimulates growth and innovation. When unbalanced, one way or the other, leads at best, to stagnation.
But TSHB serves none of these policies. It dumbs down and compromises technologies that are at the very economic core of our modern economy, for no reason at all, but for the litigation convenience of a political constituency that, apparently has more dollars than sense.
This is the same constituency that years ago whined about its death in the face of the piano rolls, then the radio, then the television, then the audio tape, then the video tape, then the DAT, and now the Internet. In every case, they lost their war to regulate technology and media, and despite themselves, profited immensely. Losing the Betamax case was the single best thing that happened to the movie industry, except for the few dinosaurs who liked too much their old ways.
And America benefitted from such changes, despite the whinings of the powers that be. Each new technology meaningfully changed our lives in useful ways, created growth and jobs, and most important, made new and greater incentives for people of talent to create.
Imagine if each and every new medium and technology was subject to regulation and review, subject to vetting by every content provider. Who is going to pay for test-drives of new media? Answer: noone, at least noone in the United States. Capital will be invested elsewhere, and the innovators who brought to us these wonderful technologies will go to medical school, law school or elsewhere.
This much we know. The "parade of horribles" of the RIAA and MPAA against underregulation never happened. None of these industries were destroyed by any of the aforementioned technologies. We have seen regulation, however, keep novel technologies from prospering. (And, although cause and effect is certainly not evident, I take great pride in noting that RIAA had their best year in history the year before the Napster decision, when they were terrified that Napster would kill it, but virtually contemporaneously with their 9th Circuit victory, found themselves suddenly unable to sell records.)
TSHB is bad for America because it is unnecessary trade regulation. It is bad for America because it deters creativity from the very sector that has provided the most vital growth (jobs and GNP) to the new economy, in favor of a whining constituency that has ALWAYS argued they were about to die, but has never really needed the protectionism for which they continue to fight.
TSHB is bad for America because it is, at its heart and sole, unAmerican. We need to foster technology, not regulate it. We need to encourage growth in new media, not to staunch its flow. Hollings would make the Commerce Department the gatekeeper of new media, serving as lapdog to content creators.
And in so doing, will only deprive them of the very success that new media technologists have provided in the past, and can always provide in the future.
New technology is driven by natural market forces. Regulation stops these things from working. Content people are the least qualified of all to vet and evaluate new media, except perhaps, for Commerce Department regulators. (And these remarks are coming from a "left of Che" liberal!)
TSHB will not help anything, for there is no real problem here, but it will cause harm. In my view, grievous harm, to America.
On the other hand, think of the opportunities this will create for EC economic and content development! (Has anyone checked for foreign contributors to Hollings campaigns?)
This is a common bit of Open Source mythology that was at one time a reasonable approximation of the truth. But it simply isn't the law. Whatever may be the way we wish it were, the cases do not support this proposition.
In fact, the cases support the contrary proposition: that running software typically entails loading content from some medium onto RAM, and thereby constitutes a "reproduction" under Section 106 of the Copyright Act. Thus, without a license, the owner of the copyright has an exclusive right to preclude a user from running the software.
Not that this result isn't controversial -- academics have assailed these cases in law reviews, and the Congress recently limited their applicability in certain cases that are not relevant here (embedded operating system software in connection with purchase of hardware).
But controversy doesn't change the law. While the previous author clearly spouted the "ole FSF party line," that party line isn't consistent with the Copyright Act and corresponding case law.
Have you ever read the DMCA? That's rhetorical, because you obviously have not.
You are mistaken.
Do you think they just pulled a law out of their ass that says "Breaking or circumventing encryption is illegal", and that's it? Wake up, cluebag. The DMCA is all about protecting copyright, not encryption schemes.
Of course, since the author of the preceding uncivil posting claims to have carefully reviewed and read the DMCA, he would know that it provides no other relevant remedy meaningfully related to the subject of his posting. Reasonable people may decide for themselves which of the two posts, his and mine, more clearly addresses the merits; and in this case, why one of us posts as an Anonymous Coward, but the other does not.
If it is merely a flash memory, how, exactly is it circumventing an encryption scheme? Obviously something is going on there, else we would be unlikely to see the Verisign logo so prominently displayed at the web site. If anybody knows what is going on there, I'd be most interested.
As to "pro bono" attorneys, why would you ever need to rely on that? You're just the buyer of a vendor's accused product. As the buyer of goods under the Uniform Commercial Code, you generally receive them subject to an implied warranty against infringement. Ordinarily, even if the warranty is expressly disclaimed, purchase orders still provide for indemnification of IP claims. Why not call the vendor and ask them why their "for a buck" lawyer isn't protecting you for free? You might also ask your insurance company if you have any coverage under you general umbrella, either for advertising injury or otherwise.
Of course, this isn't legal advise one way or the other. There aren't sufficient facts presented to indicate whether or not you would be liable, not liable for the demand or have, not have a claim for contribution from your vendors or distributors. It would make sense, and you really, really have to do this now, to have a lawyer at least look at the coverage questions.
The legal status of review and interception of unencrypted communications is a deep and fascinating inquiry. Virtually all these questions come down to the simple-sounding issue of whether the communicating parties had a "reasonable expectation of privacy."
The fundamental difference between telephone lines and internet communications derives from its "party line" nature -- interception isn't necessarily interception per se. Indeed, e-mail is in many respects much more like a postcard than a sealed envelope, and it is well-settled that postcard communications are NOT "private," although entering land to open a mailbox to see it WOULD be a violation.
But such analogies are fruitless, for they are always flawed. This is neither a postcard nor a sealed envelope nor a proprietary switching network -- it is an internet communication. There are separate laws that govern conduct on such networks, and these laws are different from general wiretap laws.
Lawyers have been battling over the question whether the use of unencrypted e-mail for attorney/client discussions constitutes breach of attorney/client privilege or the attorney's obligation to maintain a client's confidentiality. Unsurprisingly, the issue comes down to the same basic question -- reasonableness of the conduct and a reasonable expectation of privacy.
The vast majority of ethics rulings (non-binding administrative opionions published by state bars and the ABA) seem to treat e-mail the same as telephone communications, because there exist laws, in particular the ECPA and the CFAA that criminalize interception of transmissions. But those opinions may not be the law -- and certainly they were based upon a severely flawed (that is, oversimplified) understanding of both the relevant laws (which do not apply to many third parties, such as ISPs and the police in particular) and the technology itself.
This case may hit on those questions as they necessarily address "reasonable expectation of privacy." It will be fun to watch. Hopefully something useful will result.
The Sony Betamax case established the standard for testing the propriety of these types of devices. If the device is capable of a substantial non-infringing use, such as time-shifting a broadcast movie for later viewing at one's convenience, such as, a VCR and a PTR, there is no contributory liability for copyright infringement.
A no-brainer case. It would be amusing to see Sony again as the defendant in a Supreme Court appeal, since the 9th Circuit seems hell-bent on reversing the basic rules in this arena.
The Softman case is significant, if not for anything else, than for the plain, common sense, view that whether or not a sale is a sale, depends, upon whether or not the sale is treated by the parties as a sale. Thus, a person who purchased the software, but who has not loaded the software (submitting to the click-wrap) is typically able to rely upon the first sale doctrine (the rule that allows you to resell books that you have bought).
Slashdot Mirror
Code should, so far as possible in context and langauge, be self-documenting, which is to say: the code by itself should lead me as far as it can in understanding. Good, well-designed OODLs make this somewhat easier than more traditional straigh-line imperative languages, but all high-level programming languages are capable of such practices.
This means coding standards -- all code doing substantially the same thing should probably look the same. Indentation style should be sound and consistent, and unless strong countervailing arguments exist, all procedures should be very short, very well-named, and be very straightforward. As others have noted, variable names should be as precise and accurate as possible -- and, believe it or not, naming variables and procedures properly all the time is VERY hard.
When code gets written, and you start smelling the "smells" of imperfect code, this means it is time to refactor: move variables out of objects to where they belong; collapse classes where appropriate, or break them up where appropriate; rename procedures. break procedures up to clarify (and rename), consolidate procedures to clarify (and rename) and so forth.
An excellent book on refactoring is "Refactoring" by Fowler. Refactor until you shouldn't refactor any more. Then the code, sans smells, should read like a charm.
Then, and only then, will you know what the comments need to say. Comments should be things not possible to express in the code per se, or which couldn't reasonably be understood without deeper analysis. For good, well-factored and self-documenting code, most comments are usually tight, short, rare and VERY helpful. Indeed, most comments in good well-factored code are usually unnecessary for experienced readers -- and too many comments actually get in the way of reading the code.
One last thing -- keep your code comments current. Too often, changes are made in code without countervailing updates in the comments (since compilers tend not to pick up such things. The single worst possible thing is a comment that is wrong. Worse than not commenting at all. And both are heinous. Almost as bad is commenting superfluously or too much.
My view -- write your code right. Then, the comments, when necessary, will be apparent -- kinda' like the code became apparent from writing right.
Indeed, it is one thing for critics of IP to diss technology regulation such as the DMCA and TLAVOTSHB (The Latest Acronym Version of the Stupid Hollings Bill). The key point here, is that principled advocates of strong intellectual property protection, such as myself, feel equally strongly that these laws have no place in America.
Technology regulation is an abomination to the careful balance of intellectual property rights, and affirmatively stunts economic and technological growth. Giving patent-like protections to copyright holders on unpatentable technologies for indefinite terms would be an anathema if proposed as an amendment to the patent system -- why does doing it in defense of the copyright laws make it less awful?
IP works if, and only if, the careful foundations on which it is predicated are followed. Technology regulation is a blight on the face of the IP universe, and is bad on balance for our nation and all of its authors and inventors, whether or not you are a critic of the Copyright Act in the first place.
And the Judin and Antonious cases. It is no longer safe for patent bullies to randomly attack defendants who might hire competent counsel to advise them. We recently used this to excellent effect to "encourage" a patent bully to file Notices of Voluntary Dismissal in seven separate cases. It works.
A cursory read of the website and the patents in suit discloses that these whiners really haven't been terribly well advised as to what is, and what is not claimed. A demand for $30,000 is large enough to justify spending some money on competent counsel to determine the costs and benefits of the settlement.
Suffice it to say, there is more here than meets the eye. These guys need a lawyer, not a website.
A federal court is requiring a private entity to invade the privacy of private citizens -- fascinating. I wonder how the Replay TV customers feel about their conduct being tracked at this degree of granularity. Is such even within the scope of ReplayTV's agreements with their customers?
It would be nice to get a class of consumers to intervene in that action, or to seek some sort of extraordinary write, perhaps a writ of prohibition to keep this court from doing to American citizens what no other branch of government can do.
Same way you can own a bank account without owning the ledger. Title to intangible personal property is an interesting thing.
The issue isn't whether the computer is owned, but whether the copy is owned by the person asserting the Section 109 or 117 right. There is more than ample case law, including the dicta in the cases already cited, the Apple and CMG cases and various other cases on point.
Once again, fair colleagues, rely not upon my ravings or those of my antagonists for your best advices, but rather on the advices of counsel you have hired -- this is hardly a slam-dunk question as some have characterized it, and it would be a shame to lose big because you relied upon the advices read here.
Yes, once upon a time the courts made that ruling. Then congress passed [Section 117]
Wrong, so wrong. Both the Southeastern and MAI cases postdated adoption of Section 117 of the Copyright Act. Both courts held that the defendant was not an "owner" of the copy (the legal significance of the "you are a bailee, not owner" arguments). Like it or not, the Congress reversed the "owner" issue in the MAI case as part of the DMCA, but only when the software is used to maintain a machine. Thus, while the Congress repaired the situation somewhat, at the same time they ratified the earlier Court's decision about its inapplicability to non-title-holders.
There are other cases (also post-Section 117) that tend to cast doubt on the broad construction you would like to assert.
As I said earlier -- don't rely on your own legal advices here, or free advice of others -- this is tricky stuff and you are sure to get your money's worth for the free advice.
Without the EULA, I am free to use my software within the bounds of copyright law.
Which may, in fact, be not at all. Absent the EULA, you have no license. Absent a license, the bounds of the copyright act preclude any reproduction, derivation or distribution of the copy you have. Since USE of software has been treated by the courts as a reproduction (since it entails loading a copy from a fixed disk to RAM), your unlicensed execution of the program may well be violating their copyright. The virtue of the EULA is it gives you a use license. Since you bypassed the EULA, it is unlikely you would prevail on any implied license theory.
In short, if you are serious about this as a legal strategy, please first consult with competent counsel you have engaged who has carefully studied the particular facts of your case. If you are reading this proposal, please consider the source and the possibility that the legal advice in the original posting (and this response -- which is not legal advice by the way) may be worth what you paid for it.
A careful reading of the RMS criticisms seems overreaching. The criticisms are relatively minor, and his commentary appear to be wild overreactions from here. Admittedly, these terms could be repaired, and if it matters someday, they probably will be. But to characterize the license as unacceptable or worse seems to me to go way too far.
I'm not sure what's wrong at the end of the day with a retaliation clause -- such an idea might profit free software products. Imagine if suing someone for infringing a patent by distributing open source software required a company to retask all its servers to use new proprietary systems software.
RMS also complains about the clause requiring commercial distributions to indemnify the supplier as wrongful because it is "quite obnoxious" to require users to indemnify. That clause doesn't apply to users, of course, but only to commercial contributors.
Sales might have had something to do with a global recession, or perhaps other significant events?
The only plausible account is the devastation of Napster. Prior to the Eleventh Circuit decision destroying Napster at the peak of its popularity and success, and flying in the face of the best year the music intustry ever had -- arguably because of massive "try and buy" conduct of an excited marketplace, the RIAA killed the entire rush -- reduced music sharing to a techie corner, and thereby killed one of the best business models for selling music to come in years.
Cause and effect? They killed Napster, now they are losing sales...
The problem with technology regulation is this: it stunts the competitiveness of an economy and depresses innovation and technological improvement. Some regulation, such as intellectual property rights, provide countervailing advantages. But the Hollings Bill does not -- indeed, it works directly contrary to fundamental intellectual property principles.
At its most basic level, the Hollings Bill requires existing technologists to make deals with existing content owners to develop a mutually satisfactory arrangement to provide DRM.
Here is PRECISELY the problem.
Technological innovation and improvement traditionally does not come from existing, vested, interests, but from small upstart entities that shake at their foundations. Sony might be sanguine about regulations that make it difficult to develop new competing formats and technologies, but America would not.
It is these new, inovative technologists, large and small, that the bill ignores -- but these are the people that could make the next "new economy."
And existing copyright owners are quite happy with DRM that protects their existing business models. But new, upstart content makers dissatisfied with existing owners views of a "fair deal," might want to experiment with new business models, perhaps those using new technologies. It is in *this* manner, that a free market promotes the progress of the Sciences and the Useful Arts -- monopolists who are too greedy lose to reasonable commercial substitutes.
In the 80s, smaller new software companies got the idea that customers would not tolerate copy protection any more as hard disks became common on most machines. They started eating large software companies lunch, and eventually the MARKET decreed that disk-based copy protection and code-wheels should be scrapped. Consumers won their victories. Small companies got to compete by taking chances, and new markets were made.
My concern about the stupid Hollings bill is this: it protects existing vested interests without giving these smaller, present non-entities a seat at the table. It enables the government and a few presently large companies to protect a market that a free market might otherwise have turned into a dinosaur.
Until they figure out a way to do DRM without imposing upon a free market for technological media AND IP business models, they can't --and should not-- pass a law of this kind. The movie industry screamed that the VCR would be their end, just as record companies wailed against radio and the tape recorder, let alone the DAT. Heck, people were whining about piano rolls. In each and every case, these technologies MADE money for content people, at least those smart enough to figure out how, despite their whining.
Government tech. reg. of DRM is bad for technological innovation and American competitiveness, bad for, atleast some, new content creators and as noted bad for the existing content creators. It is bad for America.
Most contracts do not require a signature as a legal precondition to their enforceability. It suffices that the plaintiff prove the elements of a contract (offer, acceptance, consideration or a substitute for consideration) and be done, although those elements are often easier to prove where there exists a written and signed contract.
However, certain contracts are only enforceable if there is a legally sufficient memorandum signed by the party against whom the contract is to be enforced. Among these contracts are those concerning the sale of an interest in real estate. The signature is a substantive requirement -- This so-called "statute of frauds" prevents enforcement of a contract, even when there is otherwise compelling evidence of a deal.
The question, then, is whether an e-mail can constitute a legally binding memorandum (is it a writing, is its content sufficient to memorialize the deal for the statute of frauds), and whether the e-mail is signed. Depending upon the e-mail -- and the devil is in the details -- the answer can be a clear and unequivocal "yes" in the United States. There is ample common law to support these cases, but the recently adopted E-SIGN legislation and the e-signature statutes adopted in many states make this a no-brainer in many case.
I don't have any fact sufficient to apply these general ideas to the given case, but that is the framework for analysis of these questions.
In short, typing your name at the end of an e-mail document can constitute a signature in many or most cases. However, this only starts the analysis -- there is also the matter of proving the alleged e-mails are authentic, and that they are unforged and unmodified. In some cases and statutes, there may also be an obligation to prove an "intent to authenticate."
While not the final word on the question, this is a huge issue. As reported, the Microsoft saga with the United States Patent and Trademark Office reflects significant issues with the registrability and enforceability of the WINDOWS mark, although they were ultimately resolved in Microsoft's favor after an appeal. The TARR report there interesting relates that the windows mark is presently the subject of a, perhaps unrelated, cancellation proceeding before the USPTO.
But the difference between a straightforward trademark claim, and one where a serious challenge will be mounted to a mission-critical asset (such as the WINDOWS mark), makes a responsible company far more interested in reaching a settlement or accomodation. But this is Microsoft, who isn't even afraid of the United States Government.
As comfortable as it may seem to think otherwise, there are sometimes when you simply need the advice of counsel. Period.
Do not try this at home, folks. In addition to helping you to be alive to issues that the plain language does not clearly raise, an experienced professional "knows" which terms are truly written in stone, which are routinely dropped when you ask for it, and which are going to require some degree (or a lot) of negotiation depending upon the circumstances.
Get an agent. If its a big deal, get a lawyer just for you, as well as the lawyer the agent uses. Don't give this a second thought -- the costs of negotiating these properly makes all of the difference in the world. Get an agent. Really. Just do it.
Competent representation can alleviate much of these issues. As recently as my last book deal (two years ago), publishers were still following pretty much the standard "dance," with terms no more egregious after negotiations than you might responsibly expect. On the other hand, without advice of counsel, substantial research or experience, you may find the agreement something of a minefield.
Any lawyer who opines upon such a scenario in the abstract is likely committing malpractice. The Devil is in the details. However, it seems apparent to me that the risk of getting such a blatant end-around probably wildly exceeds any perceived benefits derived therefrom.
I can think of a zillion reasons why the proposition described above would not work, but there simply isn't enough information to answer the question in slam-dunk fashion. Suffice it to say, however, that I am seriously doubtful that such a trivial pretense as a byte-code or object-code copy produced by other means could avoid a claim for copyright infringement.
Even so, to the extent that an "on the edge" defense is being prepared, the defendant had better be right. With such willfullness, a prevailing plaintiff is likely to obtain substantial statutory damages, perhaps as much as $150,000, an award of attorney fees, and an injunction against release of the product. If they made profits from the product in excess of that amount attributable to the taking, a prevailing plaintiff could elect for the greater amount.
In short, a commercial entity that tries to do so may well be poorly advised. But once again, I don't know enough particulars to make a determination one way or the other.
The question they have to ask themselves, "do I feel lucky?"
I'm not sure what was meant by the remark:
This means the email connection is 'always on' and the battery life should be good.
Now, I love my Blackberry (although, please consider whether you ever want to be this wired), but my reaction is very much to the contrary.
My experience with my blackberry is that I need to replace the AA almost every other week, even with the "battery saving" option that turns it off at night. I cannot imagine how I could use it in connection with a telephone and expect things to be any better.
Even when you actually were served and given due notice and an opportunity to be heard.
If the facts are as indicated, that no serious effort was made to give the constutitonally required notice before proceeding to seek a default, not only will it be straightforward to obtain vacation, but there may may sometimes be recourse against an attorney who had overreached, and the client on whose behalf it was done.
There will be no trouble vacating a default judgment, but defending the action itself will be another story. One which will depend upon the merits, with respect to which we haven't yet heard the full story.
The "Stupid Hollings Bill," (or TSHB) as we have come to call it, is bad for us and bad for America. It is bad because it is blatant protectionism of a small class of persons (who already have received their Constitutional quota of protection with respect to the underlying rights in a Copyright and Patent) at great cost to the rest of us. It is bad for the same reasons that all economic regulation is bad -- it invites capital to go to places other than America.
Whatever can be said about intellectual property laws, they are grounded in a fundamental need to balance conflicting interests -- the interest in giving incentives to talent to create, and the interest of giving those who follow and stand on the shoulders of those giants to innovate therefrom. IP, when properly balanced, stimulates growth and innovation. When unbalanced, one way or the other, leads at best, to stagnation.
But TSHB serves none of these policies. It dumbs down and compromises technologies that are at the very economic core of our modern economy, for no reason at all, but for the litigation convenience of a political constituency that, apparently has more dollars than sense.
This is the same constituency that years ago whined about its death in the face of the piano rolls, then the radio, then the television, then the audio tape, then the video tape, then the DAT, and now the Internet. In every case, they lost their war to regulate technology and media, and despite themselves, profited immensely. Losing the Betamax case was the single best thing that happened to the movie industry, except for the few dinosaurs who liked too much their old ways.
And America benefitted from such changes, despite the whinings of the powers that be. Each new technology meaningfully changed our lives in useful ways, created growth and jobs, and most important, made new and greater incentives for people of talent to create.
Imagine if each and every new medium and technology was subject to regulation and review, subject to vetting by every content provider. Who is going to pay for test-drives of new media? Answer: noone, at least noone in the United States. Capital will be invested elsewhere, and the innovators who brought to us these wonderful technologies will go to medical school, law school or elsewhere.
This much we know. The "parade of horribles" of the RIAA and MPAA against underregulation never happened. None of these industries were destroyed by any of the aforementioned technologies. We have seen regulation, however, keep novel technologies from prospering. (And, although cause and effect is certainly not evident, I take great pride in noting that RIAA had their best year in history the year before the Napster decision, when they were terrified that Napster would kill it, but virtually contemporaneously with their 9th Circuit victory, found themselves suddenly unable to sell records.)
TSHB is bad for America because it is unnecessary trade regulation. It is bad for America because it deters creativity from the very sector that has provided the most vital growth (jobs and GNP) to the new economy, in favor of a whining constituency that has ALWAYS argued they were about to die, but has never really needed the protectionism for which they continue to fight.
TSHB is bad for America because it is, at its heart and sole, unAmerican. We need to foster technology, not regulate it. We need to encourage growth in new media, not to staunch its flow. Hollings would make the Commerce Department the gatekeeper of new media, serving as lapdog to content creators.
And in so doing, will only deprive them of the very success that new media technologists have provided in the past, and can always provide in the future.
New technology is driven by natural market forces. Regulation stops these things from working. Content people are the least qualified of all to vet and evaluate new media, except perhaps, for Commerce Department regulators. (And these remarks are coming from a "left of Che" liberal!)
TSHB will not help anything, for there is no real problem here, but it will cause harm. In my view, grievous harm, to America.
On the other hand, think of the opportunities this will create for EC economic and content development! (Has anyone checked for foreign contributors to Hollings campaigns?)
You do not need a license to run software
This is a common bit of Open Source mythology that was at one time a reasonable approximation of the truth. But it simply isn't the law. Whatever may be the way we wish it were, the cases do not support this proposition.
In fact, the cases support the contrary proposition: that running software typically entails loading content from some medium onto RAM, and thereby constitutes a "reproduction" under Section 106 of the Copyright Act. Thus, without a license, the owner of the copyright has an exclusive right to preclude a user from running the software.
Not that this result isn't controversial -- academics have assailed these cases in law reviews, and the Congress recently limited their applicability in certain cases that are not relevant here (embedded operating system software in connection with purchase of hardware).
But controversy doesn't change the law. While the previous author clearly spouted the "ole FSF party line," that party line isn't consistent with the Copyright Act and corresponding case law.
Have you ever read the DMCA? That's rhetorical, because you obviously have not.
You are mistaken.
Do you think they just pulled a law out of their ass that says "Breaking or circumventing encryption is illegal", and that's it? Wake up, cluebag. The DMCA is all about protecting copyright, not encryption schemes.
Except where it isn't. I refer any genuinely interested person to review the relevant statute, codified in Title 17 here, at section 1201, which bars circumvention of effective copyright protection systems and here, at section 1202, which bars messing with copyright management information.
Of course, since the author of the preceding uncivil posting claims to have carefully reviewed and read the DMCA, he would know that it provides no other relevant remedy meaningfully related to the subject of his posting. Reasonable people may decide for themselves which of the two posts, his and mine, more clearly addresses the merits; and in this case, why one of us posts as an Anonymous Coward, but the other does not.
If it is merely a flash memory, how, exactly is it circumventing an encryption scheme? Obviously something is going on there, else we would be unlikely to see the Verisign logo so prominently displayed at the web site. If anybody knows what is going on there, I'd be most interested.
As to "pro bono" attorneys, why would you ever need to rely on that? You're just the buyer of a vendor's accused product. As the buyer of goods under the Uniform Commercial Code, you generally receive them subject to an implied warranty against infringement. Ordinarily, even if the warranty is expressly disclaimed, purchase orders still provide for indemnification of IP claims. Why not call the vendor and ask them why their "for a buck" lawyer isn't protecting you for free? You might also ask your insurance company if you have any coverage under you general umbrella, either for advertising injury or otherwise.
Of course, this isn't legal advise one way or the other. There aren't sufficient facts presented to indicate whether or not you would be liable, not liable for the demand or have, not have a claim for contribution from your vendors or distributors. It would make sense, and you really, really have to do this now, to have a lawyer at least look at the coverage questions.
The legal status of review and interception of unencrypted communications is a deep and fascinating inquiry. Virtually all these questions come down to the simple-sounding issue of whether the communicating parties had a "reasonable expectation of privacy."
The fundamental difference between telephone lines and internet communications derives from its "party line" nature -- interception isn't necessarily interception per se. Indeed, e-mail is in many respects much more like a postcard than a sealed envelope, and it is well-settled that postcard communications are NOT "private," although entering land to open a mailbox to see it WOULD be a violation.
But such analogies are fruitless, for they are always flawed. This is neither a postcard nor a sealed envelope nor a proprietary switching network -- it is an internet communication. There are separate laws that govern conduct on such networks, and these laws are different from general wiretap laws.
Lawyers have been battling over the question whether the use of unencrypted e-mail for attorney/client discussions constitutes breach of attorney/client privilege or the attorney's obligation to maintain a client's confidentiality. Unsurprisingly, the issue comes down to the same basic question -- reasonableness of the conduct and a reasonable expectation of privacy.
The vast majority of ethics rulings (non-binding administrative opionions published by state bars and the ABA) seem to treat e-mail the same as telephone communications, because there exist laws, in particular the ECPA and the CFAA that criminalize interception of transmissions. But those opinions may not be the law -- and certainly they were based upon a severely flawed (that is, oversimplified) understanding of both the relevant laws (which do not apply to many third parties, such as ISPs and the police in particular) and the technology itself.
This case may hit on those questions as they necessarily address "reasonable expectation of privacy." It will be fun to watch. Hopefully something useful will result.
The Sony Betamax case established the standard for testing the propriety of these types of devices. If the device is capable of a substantial non-infringing use, such as time-shifting a broadcast movie for later viewing at one's convenience, such as, a VCR and a PTR, there is no contributory liability for copyright infringement.
A no-brainer case. It would be amusing to see Sony again as the defendant in a Supreme Court appeal, since the 9th Circuit seems hell-bent on reversing the basic rules in this arena.
The Softman case is significant, if not for anything else, than for the plain, common sense, view that whether or not a sale is a sale, depends, upon whether or not the sale is treated by the parties as a sale. Thus, a person who purchased the software, but who has not loaded the software (submitting to the click-wrap) is typically able to rely upon the first sale doctrine (the rule that allows you to resell books that you have bought).