Sure, M$ has it in mind to overreach on this one, but I gotta tell you, a lawyer advising M$ who didn't advise her client to get express permission to check and pass data to a server risks claims of Computer Fraud and Abuse. I'm here to tell you that CFAA class actions have been asserted for far less.
Since CFAA claims today can result in severe civil liability and serious criminal responsibility, I'm actually inclined to cut Microsoft a break this time.
There is no substitute when dealing with bullies like the BSA: make sure you are well-advised. They misrepresent the extent of their powers and advantages in these threatened litigations, wildly mistate their rights under the law and appropriate burdens of proof; but they do have significant advantages that you should never underestimate.
While BSA likes to compare themselves to other licensing enforcement operations, such as ASCAP/BMI, there are fundamental differences, and at the end of the day, these can make substantial differences in the result if you are willing to duke it out.
A truly compliant entity, even poorly documented, can turn the tables powerfully on such a bully. Indeed, even a party who is slightly out-of-compliance can do so, by using a number of devices available at law, such as Offers of Judgment, to turn the tables or test the will of a BSA threat. (Indeed, it may be wise -- again YMMV -- to consider filing a preemptive declaratory judgment action against them for several reasons.)
ASCAP/BMI, when asked, will produce actual opinions of actual cases where they have collected actual damages at trial in comparable enforcement scenarios. Ask a similar question of the BSA -- they will cite to the cases of the Performing Rights Societies and not to those of the BSA.
Ex parte seizures or searches can backfire seriously as well. A 6th Circuit case not too long ago found that a defendant who can show a seizure to have been improper can proceed past a motion to dismiss on a civil rights and trespass claim not only against the overreaching plaintiff, but also against their attorneys. It is a good idea to put them on notice of this fact early in the correspondence.
And from this article, I learned something quite interesting -- their constituents only get the license fees, they retain the multiples they extract. Not so with Performing Rights Societies, who, as understood, are non-profit entities that return their proceeds after costs to the composers and rights owners they represent.
It is therefore essential to get solid representation from someone who knows what they are doing. A stone wall could expose you to substantial liability. On the other hand,
Please do not consider any of the above to be legal advisc beyond the following: get a lawyer who is highly competent in this area to advise you. Specific legal advise is highly fact-dependent, and subtle differences in facts can often necessitate dramatically different strategies. Accordingly, no "cookbook" or single posting can provide you with a clear, definitive solution -- get competent advice and act on it.
Clearly, it depends upon the exact facts of the commercial relationship between the developer and beta tester. It depends upon the specific nature of the advice and the circumstances under which they were given.
It depends upon so many things, that anyone who tells you the answer is clear on the outline provided is clearly just selling something. I *AM* a lawyer, and I am here to say this: that right now you need to stop asking general advices of the technical community and begin speaking to a competent lawyer upon whose advices you can reasonably rely.
This much is certain, these issues will ALWAYS be more expensive after they have exploded than beforehand. The time to call a lawyer was when beginning to distribute the software and disclose the object code to third parties.
Then, as now, there is only one answer to this question:
The FTC (not FCC) is a federal agency that has authority delegated to the executive by the Legislature under the Commerce Clause by the appropriately named "FTC Act," which generally governs among other things, deceptive and unfair trade practices.
Florida, and most other states, have their own versions of the FTC Act, often referred to as their "Little FTC Acts." There is even a proposed uniform act, the so called UDUTPA. Florida doesn't adopt UDUTPA, but has its own FDUTPA, the Florida Deceptive and Unfair Trade Practices Act. And yes, the act expressly defers to the construction by courts of the Federal FTC Act. But No, this does not guarantee deference to decisions of FTC administrators.
While we might at one time have thought the law well-settled concerning the copyright issues of parody as fair use, the truth is far more interesting.
Clearly, we know that a rap reworking of O Pretty Woman, parodizing the song as an unrealisticly romanticized account of the horrific life of a prostitute on the street is fair use, for the Supremes told us so in Campbell v. Acuff Rose.
Alas, the Courts in infinite wisdom have distinguished with a fine hair the parodizing of a work of authorship with the satirizing of a societal issue by reference to a work, for example the Dr. Seuss-esque storybook about the O.J. Simpson Trial, the "Cat NOT in the hat, which was held NOT to be fair use. There was an interesting article about this case in the Cardozo Law Journal. (big pdf file)
Finally, we have the recent reworking of the civil war epic "The Wind Done Gone," which led to one of the more important recent copyright and parody decisions, and an excellent Eleventh Circuit opinion.
And that's just the Copyright issues. There remain the trademark parody cases, which have an even odder range of uncertainty. Certainly, there are a host of cases where trademark parodies have been found permissible and protected (I think "Off the wall-street journal" was an example of one that passed), but apparently there is an invisible (or at least very gray at the fringe) line of cases where the use is so offensive to the trademark that it borders on unfair competition. (I think Jordache with a depicted butt and Cocaine with the Coca-cola commercial style failed, but again, I may be misremembering).
I had a case not too long ago when I analyzed these issues and this absolutely murky hunk of case law. The best I could approximate is the SDR&R standard: "it is ok to parody a trademark, unless you make reference to sex, drugs or rock & roll."
Interestingly, these standards (trademark and copyright) are NOT consistent. The Campbell Copyright case was a fact pattern as egregiously offensive to the Orbison estate as Cocaine was to the Coca Cola Company. Yet there, it was protected expression.
It would be interesting to see a case well-resolved that addresses these conflicting areas of law clearly. But at any rate, I wouldn't presume without seeing ALL the facts and ALL the arguments that either side has a clear win. This is one of the truly gray margins of the law, except in the few arenas where the conduct has already been litigated. Unless your case lies foursquare on the facts of an existing, controlling case, this is as uncertain an area as it gets.
Unobvious doesn't mean what you think it means
on
AvantGo Gets a Patent
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· Score: 2
It is long well-settled that section 103 unobviousness cannot be determined by a hindsight review of a solution and a casual estimation of how "good" or "clever" is the solution.
Being first to "stumble" upon a problem is often itself part of invention. The difference between invention, discovery and dumb luck, in this regard, is metaphysical at most. But the manner of making an invention cannot negative its patentability. No spark of genius, or even radical variation is required.
The question is whether it was inventive, that is, first. What was the prior art, and would Verne, if he knew it all, think to put it together to make an Avant Go.
In short, the meaning of unobviousness isn't all that obvious, as the law of patents goes. Your standard, however interesting, doesn't relate to the standard used for the Patent act.
I am sympathetic to those of my colleagues who have written that an honorable company need not fear anything. I do concur with those who have responded so are, indeed, naive. Documents can be very costly and damaging, even as against the innocent, a "smoking gun document," need not have actually been the murder weapon to cast doubt on the innocence of the innocence. Many are the times a close case swings because of a random, ambiguous and otherwise innocuous document.
On the other hand, my colleagues who have written on the utility of unfiled archives are also correct. Few things are more valuable, and numerous are the times one can "save the day," by a few hours of rummaging to find the "holy grail document."
The problem is that there is no way to have prior knowledge which are the smoking gun documents and which are the holy grail documents. The HG docs can save your life, but the SG docs can kill you. And the likelihood of either situation is rare (although the costs and benefits, respectively, often are astronomical).
Meanwhile, having recent documents around is, simply put, necessary to the efficient operation of a business. That said, e-mails, because of the culture of e-mail use, these days are the single best source of SGDs in modern litigation.
So, a decent (that is responsible) retention policy should balance effectively these competing concerns, even for a truly and genuinely honorable commercial entity. The key idea is this, the retention period should be long enough that the likelihood that the HG-ness of a document will be recognized prior to destruction, and longer than the general utility of having any document handy, but no longer. Guess is somewhere between 18 months and three years, depending on the business.
The retention policy will have exceptions for important instruments, but will require an affirmative effort be made to avoid the axe. Thus, docs identified as HG in nature, after the period, like deeds, source code, contracts with term longer than retention, and special documents are automatically reupped, despite the policy.
content industry working to convince congress that not introducing hardware copyright protection . . . would eventually lead to the "industry's destruction", as put by Michael Eisner.
Of course, this has been the content industry's siren song for almost a century. Virtually every major new form of automation has been labeled a harbinger of death to copyright, to with:
Piano Rolls
Radio
Audio Tape
Television
Video Tape
DAT
Other digital sound media
Every one of these technologies were identified as a damning threat to the "content industry," and to an extent, this is true, when the "content industry" is defined as an entity committed to entrenched business models and technology for exploiting works of authorship.
As it turns out, all these things ever turned out to be, were changes. For the most part, each new technology enriched our nation, and enriched those in the "content industry" smart enough to effectively exploit them.
The reason great technologies occur, is because innovators are free in our market to test the value of their inventions. Alas, these content "moguls" are not only seeking to protect the works of authors they have exploited, but also to control and limit innovation and develop new "threatening" technologies.
And this is why technology regulation is not intellectual property law -- it is precisely the opposite of the policies justifying IP. Instead of glorifying and supporting the market, record companies and movie companies are seeking the right to shut down those who are neither copying nor duplicating their works, but who are simply innovating their works into irrelevance.
Such pro-dinosaur economics can only lead to the ruin of the new economy, and at a moment it is at its most tenuous position. Sure, a few will stay rich, for awhile -- but at what cost?
Cuz remember programmers: in the real world you are fired if you consult with a co-worker
This casual quip misses the point. One does not produce identical answers to nontrivial assignments merely by "consulting." The most common cause of identical duplication typically derives from non-collegial efforts, such as "frat house sharing" (not limited to fraternities) and other modes of mass-distribution of a single individual's work.
This casual quip further misses the point. Each student who cheats in this manner, however collegially, typically has violated an express oath and promise taken at some point. YMMV as to specific honor codes. It is one thing to break the rules because one thinks one knows better -- it is another to lie about it.
The purpose of these exercises is to train each individual so they can later be part of a team. In my view, pair programming should also be taught as an inherent and principal development skill -- but a particular mode of pedagogy is the discretion of the professor.
I must confess that one of the most difficult moments of my young adult life was serving as a teaching assistant for an introductory programming course at Cornell (hundreds and hundreds of students). A massive amount of cheating was discovered, and we ultimately sorted and compared all assignments and then called in the groups, one-at-a-time, giving them an opportunity to account for the similiarities. It was horrible, for me, the professor and the students alike.
People cheating just because they (thought they) could. It was a very sad thing.
supposedly identified as busted or bustable by Mr. Aharonian have survived scrutiny over the years.
Greg has a tendency, as do many patent critics, to casually review patents without applying the appropriate rules of law, presume their scope are much broader than they actually are, and then conclude that they read upon prior art. This would be unrelated to the law.
In practice, the rules of patent construction and patentability are far more complicated than he appears to suppose. At least, he no longer presumes --as he did at one time-- that patents are defined by their abstracts.
The fundamental difference between code and text is this: a principal purpose for the code is the execution of the code. With programs, almost nobody cares about the code itself, but the experience of its execution.
On the other hand, while most of the value of the code lies in the execution, the Copyright Act doesn't actually --and cannot-- cover the functionality, per se. 17 USC s. 102(b). It is for these reasons that protection of copyright is a peculiar province. Copyright has been quite neutered for software in the past 15 years -- providing strong protections only for literal infringements. The licenses have been pumped up, in part, to counterbalance those properties.
As to the question, "why are software licenses more restrictive than books," it is clear: The market tolerates limitations of software licenses, but would not do so with books. if the market really gave the slightest d*#$ about software licenses, they wouldn't buy the software -- but as a whole, we don't, so they do.
When you purchase a DVD, you are paying for the ability to play it on players approved by the people who made the disc
Not close. You are just making this up as you go along. As owner of title in and to the copy of the work I purchased, I am free to exercise any right in the work not contracted away, subject to the limitations of the Copyright Act. "Playing on players approved by the Copyright Owner" is not one of the exclusive rights provided in 17 USC section 106.
In short, if that were the basis for the argument, MPAA would be out of luck. This is why MPAA needed the DMCA to shut down DeCSS -- the copyright Act expressly permits creation of and most uses of the software.
I obtained title to my DVD's by paying for them. That title was the consideration for my yankee dollars. The only way they could change the deal after the fact was to change the law -- so they did, circumventing the copyright act with anticircumvention laws. But that has nothing whatsoever to do with the above-quoted suggestion, which isn't the law anywhere.
Ford failed to prove these things, thus the injunction was denied. It's a nice finding, but the outcome of the trial remains to be seen.
* * * *
While the case is far from over, it doesn't look good for Ford.
Yes, but its worse for Ford than you have suggested. In another ruling, issued the same day, the Court granted defendant's motion to dismiss for failure to state a claim.
This meant that the Defense was able to prove that, even assuming that every allegation present in the complaint was absolutely true, that the facts nevertheless failed to state a claim upon which relief can be granted under the law -- that is, Ford doesn't have a case.
to negotiate the cross license and stipulate to a consent judgment as to validity of each other's patents. Then, armed with the consent decree, they can use the vehicle to support preliminary injunctive relief as against third parties.
Relax, this is just how the game is played. Its the birth of a new enterprise and industry, with a pretty cool and different product that changes the way people enjoy consumer electronics. This is going to set the framework for development, and indeed, will assure at least a pair of effective and worthy competitors poised to beat up on Microsoft when they try to come to play.
Do you have data for this, anecdotal or otherwise?
lot's of it. But here are a few data points. The largest software arts patent verdict was STAC v. Microsoft, >$110M for STAC (and a $10M counterclaim for Microsoft in return).
Outside software arts are the famous cases of Jerry Lemelson, who got huge verdicts from Ford and other players with his greater than 500-strong patent portfolio.
Other cases that come to mind involve upstart Amazon versus big brick and mortar Barnes & Noble. And of course there's Eolas v. Microsoft, Priceline v. Microsoft, and so it goes. Apple bought itself some space (and cash) by settling its patent case against Microsoft days after Jobs rejoined.
Big companies used to be the only guys that filed patents.
Hardly. The independent inventor movement is and has been one of the most significant political forces driving the patent system. Although it is true that the Fortune 500 is littered with big companies that derived from little guys inventive and patented successes that allowed small and mid-sized companies to grow large.
The language is what I find scary, it all sounds as if some sort of physical theft had taken place.
Your problem with language doesn't inform the question -- the word means what it means. A quick glance at three dictionaries, including OED and Webster's Third New International, disclosed many definitions of "steal" that did not require tangible theft. Indeed, some specific examples entail takings of intangibles.
That said, not all stealing is criminal, perhaps not even wrongful. I might steal a kiss and be naughty, but not necessarily commit a crime. Moreover, even conduct contrary to the law -- even some bearing criminal penalties -- need not be wrong per se. The law distinguishes between crimes that are malum prohibitum (wrong because prohibited) and malum in se (wrong in themselves).
Copyright infringement is often stealing, sometimes criminal, and certainly at most malum prohibitum.
But so what? Trying to control language is a terrible way to inform a debate. The words mean what they mean, but when used ambiguously, with loaded words like "stealing," that in some cases can be salutary conduct, slightly naughty conduct, or a serious crime isn't great debating technique. Just as poor, however, is pretending that the words don't mean what they mean.
The vast majority of patent cases are fought between the small to mid-sized company against much larger entities. Patents are the vehicle by which small and mid-sized companies --like TiVo--can effectively compete on an equal playing field with their much larger, better capitalized competitors.
It is what drives venture money to support start ups for companies founded by dudes with big ideas, and without which, nobody would ever want to be first to market with a big-R&D project.
Behemoth Microsoft is the perpetual defendant, not plaintiff, in these cases. It is the agile, flexible, upstarts who tend to benefit from the patent system, not the monoliths.
How does a tiny company win entry into the "cross-licensing" wars? That's easy, build some serious incremental inventions that improve the technology, and draft your own patent application. Yes, the newly "big boys" will try, at first, to toss you about -- and yes, they will be able to keep you at bay for awhile. But remember, there will be two companies cross-licensing their patents one against each other. If your technology is any good, the one who deals with you first wins! This means that both have to deal with you and guess what? Your good technology generates opportunity and value.
This is what mid-sized Japanese companies did to American consumer electronics in the 70s through the 80s. You decide for yourself who had the edge, those with the foundation patents, or those with the new technologies covered by blocking patents?
Great companies, big and small can be players --ALWAYS-- if they have: (1) technology and (2) savvy. It is true that cheesy, non-technology contributing companies cannot freeload off of the work of those who went before them and compete against TiVo with only TiVo's technology. The benefit of rewarding people who productize and bring to us the PVR as these guys did far outweighs the social costs of the marginal markups.
TiVos are cheap -- very cheap compared to their value. And they are excellent products that have been far more savvy about and friendly to their hacker communities than other counterparts. They deserve all they can milk form this.
In what world? I just bought the Phillips for essentially retail, because they were charging an Arm and a leg for the Sony. If you can give me a cite or a link, I can get some of those yankee bucks back. PLEASE, if there is a $90 Tivo out there at Circuit City or a competitor, post it by all means.
This only affect international disputes, say those in Canada.
To quote: "federal courts have jurisdiction over international domain name disputes".
ACPA and Lanham Act section 43(c) provide all the relief a nasty plaintiff might want in a domestic dispute. Nothing more is necessary. Any suggestion that the Court passed on or limited domestic complaints turns the case on its head -- this one addressed international complaints because the application of ACPA in that context raises significant constitutional issues under article III, and some treaty law questions.
This still won't take all the power away from WIPO and ICANN that it needs, but it's a step towards better arbitration. Domain names are not trademarks!
No, they are not. But once you use them in commerce, which is actually pretty not hard to do, that USE can give rise to trademark infringement. Even if it doesn't, there is a basis for a legal claim for dilution for ANY use "in commerce," even if it doesn't compete. Finally, even if none of those things happen, there is always a claim under ACPA.
This has always been the case, the UN has no direct legal authority to do anything at all, unless it involves wars between different countries.
WIPO arbitration has always been that, arbitration. Not legally binding. (of course, who knows what kind of contract stuff you implicitly signed on for when you purchased your domain)
The UN has no jurisdiction whatsoever, but the analysis fails from there going forward. Registrars under the ICANN must have registrants contractually bound to the UDRP, which means that the ICANN-sponsored arbitrators arbitrate the "ownership" of the domain name -- which is just a contract between the registrant and registrar to maintain the DNS records.
The arbitration result is legally enforceable in the United States, without review on the merits, as the arbitration is a final, unreviewable, determination on the merits of the CONTRACT between the registrant and the registrar. This doesn't mean that a losing complainant couldn't sue under ACPA, unfair comeptition and trademark law after losing, to enjoin the USE of the domain name by the registrant.
Oddly enough, the first circuit held that ACPA appears to effectively 'horn in" on that process, and would certainly preempt contract law to the extent that it does.
But make no mistake, UDRP dispute resolution is hardly a non-binding process. If a court order isn't sought and does not issue, a lost domain name is gone, gone, gone.
The arbitration under the UDRP is binding, to the extent that the registrar must comply with the result unless otherwise ordered by a Court of competent jurisdiction. Unless a losing party gets an order from a Court, the loser is out of luck.
Because the ICANN rules permit the petitioner to select the forum (the arb), is it at all unsurprising that when a lawyer (me too) is filing one of these things, she will obtain the statistics for the various arbs to determine which group, if any, is more pro-petitioner than another.
Since an arb result is unappealable, every arb result is final. There is therefore no downside for an arb to be pro-petitioner. Since the petitioner gets to decide which forum gets the fee, why would any arb panel ever consider doing anything other than hiring a bunch of pro-petitioner arbitrators, and eventually phasing out anyone who drops the panel's statistics?
For the respondants, by the way, the strategy is to pay extra for the three-judge panel. The statistics drop from something like 88% pro-petitioner for single-arb panels to mid-sixties.
And don't freak too much about the numbers -- the vast majority of cases I have seen are serious cybersquatting cases. Despite the statistics, I have yet to lose a case due to perceived bias, though I have seen some howler opinions elsewhere. I wonder if those result as much from poor or pro-se representation as from bad arbitration?
At any rate, the RULES create an inherently unbalanced world. ICANN, or preferably a panel responsible to the public, and not the petitioner, should select the panel by random drawing, and should supervise and investigate allegations of bias. Even though the decisions themselves are not reviewable, the arbitrator should be accountable to someone to do justice, not merely "help up the stats."
One other thing. Do you think that the kinds of terrorists to whom the USA/PATRIOT laws are directed are subject to intellectual arguments of deterrence? Do you seriously argue that ANY law would have deterred a person willing to turn himself into a human bomb?
No, we are only deterring normal people from doing normal things, as our life is turned upside down from statist overreaching. The terrorists are unaffected by legislative efforts to "deter" their conduct.
But most hackers are in a sense terrorist.
Just some bother more people than others. Yes a 12 year old who sits at his parents computer and launches DoS attack against companies or just Marge reading her AOL mail should be considered a criminal.
The crime is easy to commit, and hard to deter since audit trails are small to none. So the punishment must be bad enough to scare you away from doing these things.
Ridiculous, when you compare the costs of such threats. Yes, your daughter is more severely deterred from hacking, but the cost is that virtually every computer consultant today is inherently liable for extraordinary liability under the Computer Fraud and Abuse Act, by the mere shift of a few words. It seems that whatever marginal "deterrence" is gained by the USA/PATRIOT Act was lost by the years of productivity and commerce due to the unceasing caution and uncertainty caused to those who provide technical services.
By regulating technology more closely, so too are we choking one of our nation's greatest engines of commerce.
Slashdot Mirror
Sure, M$ has it in mind to overreach on this one, but I gotta tell you, a lawyer advising M$ who didn't advise her client to get express permission to check and pass data to a server risks claims of Computer Fraud and Abuse. I'm here to tell you that CFAA class actions have been asserted for far less.
Since CFAA claims today can result in severe civil liability and serious criminal responsibility, I'm actually inclined to cut Microsoft a break this time.
Yes, I am.
There is no substitute when dealing with bullies like the BSA: make sure you are well-advised. They misrepresent the extent of their powers and advantages in these threatened litigations, wildly mistate their rights under the law and appropriate burdens of proof; but they do have significant advantages that you should never underestimate.
While BSA likes to compare themselves to other licensing enforcement operations, such as ASCAP/BMI, there are fundamental differences, and at the end of the day, these can make substantial differences in the result if you are willing to duke it out.
A truly compliant entity, even poorly documented, can turn the tables powerfully on such a bully. Indeed, even a party who is slightly out-of-compliance can do so, by using a number of devices available at law, such as Offers of Judgment, to turn the tables or test the will of a BSA threat. (Indeed, it may be wise -- again YMMV -- to consider filing a preemptive declaratory judgment action against them for several reasons.)
ASCAP/BMI, when asked, will produce actual opinions of actual cases where they have collected actual damages at trial in comparable enforcement scenarios. Ask a similar question of the BSA -- they will cite to the cases of the Performing Rights Societies and not to those of the BSA.
Ex parte seizures or searches can backfire seriously as well. A 6th Circuit case not too long ago found that a defendant who can show a seizure to have been improper can proceed past a motion to dismiss on a civil rights and trespass claim not only against the overreaching plaintiff, but also against their attorneys. It is a good idea to put them on notice of this fact early in the correspondence.
And from this article, I learned something quite interesting -- their constituents only get the license fees, they retain the multiples they extract. Not so with Performing Rights Societies, who, as understood, are non-profit entities that return their proceeds after costs to the composers and rights owners they represent.
It is therefore essential to get solid representation from someone who knows what they are doing. A stone wall could expose you to substantial liability. On the other hand,
Please do not consider any of the above to be legal advisc beyond the following: get a lawyer who is highly competent in this area to advise you. Specific legal advise is highly fact-dependent, and subtle differences in facts can often necessitate dramatically different strategies. Accordingly, no "cookbook" or single posting can provide you with a clear, definitive solution -- get competent advice and act on it.
It depends. Call a lawyer.
Clearly, it depends upon the exact facts of the commercial relationship between the developer and beta tester. It depends upon the specific nature of the advice and the circumstances under which they were given.
It depends upon so many things, that anyone who tells you the answer is clear on the outline provided is clearly just selling something. I *AM* a lawyer, and I am here to say this: that right now you need to stop asking general advices of the technical community and begin speaking to a competent lawyer upon whose advices you can reasonably rely.
This much is certain, these issues will ALWAYS be more expensive after they have exploded than beforehand. The time to call a lawyer was when beginning to distribute the software and disclose the object code to third parties.
Then, as now, there is only one answer to this question:
It depends. Call a lawyer.
Right. Here's the deal.
The FTC (not FCC) is a federal agency that has authority delegated to the executive by the Legislature under the Commerce Clause by the appropriately named "FTC Act," which generally governs among other things, deceptive and unfair trade practices.
Florida, and most other states, have their own versions of the FTC Act, often referred to as their "Little FTC Acts." There is even a proposed uniform act, the so called UDUTPA. Florida doesn't adopt UDUTPA, but has its own FDUTPA, the Florida Deceptive and Unfair Trade Practices Act. And yes, the act expressly defers to the construction by courts of the Federal FTC Act. But No, this does not guarantee deference to decisions of FTC administrators.
While we might at one time have thought the law well-settled concerning the copyright issues of parody as fair use, the truth is far more interesting.
Clearly, we know that a rap reworking of O Pretty Woman, parodizing the song as an unrealisticly romanticized account of the horrific life of a prostitute on the street is fair use, for the Supremes told us so in Campbell v. Acuff Rose.
Alas, the Courts in infinite wisdom have distinguished with a fine hair the parodizing of a work of authorship with the satirizing of a societal issue by reference to a work, for example the Dr. Seuss-esque storybook about the O.J. Simpson Trial, the "Cat NOT in the hat, which was held NOT to be fair use. There was an interesting article about this case in the Cardozo Law Journal. (big pdf file)
Finally, we have the recent reworking of the civil war epic "The Wind Done Gone," which led to one of the more important recent copyright and parody decisions, and an excellent Eleventh Circuit opinion.
And that's just the Copyright issues. There remain the trademark parody cases, which have an even odder range of uncertainty. Certainly, there are a host of cases where trademark parodies have been found permissible and protected (I think "Off the wall-street journal" was an example of one that passed), but apparently there is an invisible (or at least very gray at the fringe) line of cases where the use is so offensive to the trademark that it borders on unfair competition. (I think Jordache with a depicted butt and Cocaine with the Coca-cola commercial style failed, but again, I may be misremembering).
I had a case not too long ago when I analyzed these issues and this absolutely murky hunk of case law. The best I could approximate is the SDR&R standard: "it is ok to parody a trademark, unless you make reference to sex, drugs or rock & roll."
Interestingly, these standards (trademark and copyright) are NOT consistent. The Campbell Copyright case was a fact pattern as egregiously offensive to the Orbison estate as Cocaine was to the Coca Cola Company. Yet there, it was protected expression.
It would be interesting to see a case well-resolved that addresses these conflicting areas of law clearly. But at any rate, I wouldn't presume without seeing ALL the facts and ALL the arguments that either side has a clear win. This is one of the truly gray margins of the law, except in the few arenas where the conduct has already been litigated. Unless your case lies foursquare on the facts of an existing, controlling case, this is as uncertain an area as it gets.
It is long well-settled that section 103 unobviousness cannot be determined by a hindsight review of a solution and a casual estimation of how "good" or "clever" is the solution.
Being first to "stumble" upon a problem is often itself part of invention. The difference between invention, discovery and dumb luck, in this regard, is metaphysical at most. But the manner of making an invention cannot negative its patentability. No spark of genius, or even radical variation is required.
The question is whether it was inventive, that is, first. What was the prior art, and would Verne, if he knew it all, think to put it together to make an Avant Go.
In short, the meaning of unobviousness isn't all that obvious, as the law of patents goes. Your standard, however interesting, doesn't relate to the standard used for the Patent act.
I am sympathetic to those of my colleagues who have written that an honorable company need not fear anything. I do concur with those who have responded so are, indeed, naive. Documents can be very costly and damaging, even as against the innocent, a "smoking gun document," need not have actually been the murder weapon to cast doubt on the innocence of the innocence. Many are the times a close case swings because of a random, ambiguous and otherwise innocuous document.
On the other hand, my colleagues who have written on the utility of unfiled archives are also correct. Few things are more valuable, and numerous are the times one can "save the day," by a few hours of rummaging to find the "holy grail document."
The problem is that there is no way to have prior knowledge which are the smoking gun documents and which are the holy grail documents. The HG docs can save your life, but the SG docs can kill you. And the likelihood of either situation is rare (although the costs and benefits, respectively, often are astronomical).
Meanwhile, having recent documents around is, simply put, necessary to the efficient operation of a business. That said, e-mails, because of the culture of e-mail use, these days are the single best source of SGDs in modern litigation.
So, a decent (that is responsible) retention policy should balance effectively these competing concerns, even for a truly and genuinely honorable commercial entity. The key idea is this, the retention period should be long enough that the likelihood that the HG-ness of a document will be recognized prior to destruction, and longer than the general utility of having any document handy, but no longer. Guess is somewhere between 18 months and three years, depending on the business.
The retention policy will have exceptions for important instruments, but will require an affirmative effort be made to avoid the axe. Thus, docs identified as HG in nature, after the period, like deeds, source code, contracts with term longer than retention, and special documents are automatically reupped, despite the policy.
Of course, this has been the content industry's siren song for almost a century. Virtually every major new form of automation has been labeled a harbinger of death to copyright, to with:
Piano Rolls
Radio
Audio Tape
Television
Video Tape
DAT
Other digital sound media
Every one of these technologies were identified as a damning threat to the "content industry," and to an extent, this is true, when the "content industry" is defined as an entity committed to entrenched business models and technology for exploiting works of authorship.
As it turns out, all these things ever turned out to be, were changes. For the most part, each new technology enriched our nation, and enriched those in the "content industry" smart enough to effectively exploit them.
The reason great technologies occur, is because innovators are free in our market to test the value of their inventions. Alas, these content "moguls" are not only seeking to protect the works of authors they have exploited, but also to control and limit innovation and develop new "threatening" technologies.
And this is why technology regulation is not intellectual property law -- it is precisely the opposite of the policies justifying IP. Instead of glorifying and supporting the market, record companies and movie companies are seeking the right to shut down those who are neither copying nor duplicating their works, but who are simply innovating their works into irrelevance.
Such pro-dinosaur economics can only lead to the ruin of the new economy, and at a moment it is at its most tenuous position. Sure, a few will stay rich, for awhile -- but at what cost?
Cuz remember programmers: in the real world you are fired if you consult with a co-worker
This casual quip misses the point. One does not produce identical answers to nontrivial assignments merely by "consulting." The most common cause of identical duplication typically derives from non-collegial efforts, such as "frat house sharing" (not limited to fraternities) and other modes of mass-distribution of a single individual's work.
This casual quip further misses the point. Each student who cheats in this manner, however collegially, typically has violated an express oath and promise taken at some point. YMMV as to specific honor codes. It is one thing to break the rules because one thinks one knows better -- it is another to lie about it.
The purpose of these exercises is to train each individual so they can later be part of a team. In my view, pair programming should also be taught as an inherent and principal development skill -- but a particular mode of pedagogy is the discretion of the professor.
I must confess that one of the most difficult moments of my young adult life was serving as a teaching assistant for an introductory programming course at Cornell (hundreds and hundreds of students). A massive amount of cheating was discovered, and we ultimately sorted and compared all assignments and then called in the groups, one-at-a-time, giving them an opportunity to account for the similiarities. It was horrible, for me, the professor and the students alike.
People cheating just because they (thought they) could. It was a very sad thing.
supposedly identified as busted or bustable by Mr. Aharonian have survived scrutiny over the years.
Greg has a tendency, as do many patent critics, to casually review patents without applying the appropriate rules of law, presume their scope are much broader than they actually are, and then conclude that they read upon prior art. This would be unrelated to the law.
In practice, the rules of patent construction and patentability are far more complicated than he appears to suppose. At least, he no longer presumes --as he did at one time-- that patents are defined by their abstracts.
The fundamental difference between code and text is this: a principal purpose for the code is the execution of the code. With programs, almost nobody cares about the code itself, but the experience of its execution.
On the other hand, while most of the value of the code lies in the execution, the Copyright Act doesn't actually --and cannot-- cover the functionality, per se. 17 USC s. 102(b). It is for these reasons that protection of copyright is a peculiar province. Copyright has been quite neutered for software in the past 15 years -- providing strong protections only for literal infringements. The licenses have been pumped up, in part, to counterbalance those properties.
As to the question, "why are software licenses more restrictive than books," it is clear: The market tolerates limitations of software licenses, but would not do so with books. if the market really gave the slightest d*#$ about software licenses, they wouldn't buy the software -- but as a whole, we don't, so they do.
When you purchase a DVD, you are paying for the ability to play it on players approved by the people who made the disc
Not close. You are just making this up as you go along. As owner of title in and to the copy of the work I purchased, I am free to exercise any right in the work not contracted away, subject to the limitations of the Copyright Act. "Playing on players approved by the Copyright Owner" is not one of the exclusive rights provided in 17 USC section 106.
In short, if that were the basis for the argument, MPAA would be out of luck. This is why MPAA needed the DMCA to shut down DeCSS -- the copyright Act expressly permits creation of and most uses of the software.
I obtained title to my DVD's by paying for them. That title was the consideration for my yankee dollars. The only way they could change the deal after the fact was to change the law -- so they did, circumventing the copyright act with anticircumvention laws. But that has nothing whatsoever to do with the above-quoted suggestion, which isn't the law anywhere.
Ford failed to prove these things, thus the injunction was denied. It's a nice finding, but the outcome of the trial remains to be seen.
* * * *
While the case is far from over, it doesn't look good for Ford.
Yes, but its worse for Ford than you have suggested. In another ruling, issued the same day, the Court granted defendant's motion to dismiss for failure to state a claim.
This meant that the Defense was able to prove that, even assuming that every allegation present in the complaint was absolutely true, that the facts nevertheless failed to state a claim upon which relief can be granted under the law -- that is, Ford doesn't have a case.
to negotiate the cross license and stipulate to a consent judgment as to validity of each other's patents. Then, armed with the consent decree, they can use the vehicle to support preliminary injunctive relief as against third parties.
Relax, this is just how the game is played. Its the birth of a new enterprise and industry, with a pretty cool and different product that changes the way people enjoy consumer electronics. This is going to set the framework for development, and indeed, will assure at least a pair of effective and worthy competitors poised to beat up on Microsoft when they try to come to play.
At least until Microsoft buys one of them . . .
Do you have data for this, anecdotal or otherwise?
lot's of it. But here are a few data points. The largest software arts patent verdict was STAC v. Microsoft, >$110M for STAC (and a $10M counterclaim for Microsoft in return).
Outside software arts are the famous cases of Jerry Lemelson, who got huge verdicts from Ford and other players with his greater than 500-strong patent portfolio.
Other cases that come to mind involve upstart Amazon versus big brick and mortar Barnes & Noble. And of course there's Eolas v. Microsoft, Priceline v. Microsoft, and so it goes. Apple bought itself some space (and cash) by settling its patent case against Microsoft days after Jobs rejoined.
Big companies used to be the only guys that filed patents.
Hardly. The independent inventor movement is and has been one of the most significant political forces driving the patent system. Although it is true that the Fortune 500 is littered with big companies that derived from little guys inventive and patented successes that allowed small and mid-sized companies to grow large.
The language is what I find scary, it all sounds as if some sort of physical theft had taken place.
Your problem with language doesn't inform the question -- the word means what it means. A quick glance at three dictionaries, including OED and Webster's Third New International, disclosed many definitions of "steal" that did not require tangible theft. Indeed, some specific examples entail takings of intangibles.
That said, not all stealing is criminal, perhaps not even wrongful. I might steal a kiss and be naughty, but not necessarily commit a crime. Moreover, even conduct contrary to the law -- even some bearing criminal penalties -- need not be wrong per se. The law distinguishes between crimes that are malum prohibitum (wrong because prohibited) and malum in se (wrong in themselves).
Copyright infringement is often stealing, sometimes criminal, and certainly at most malum prohibitum.
But so what? Trying to control language is a terrible way to inform a debate. The words mean what they mean, but when used ambiguously, with loaded words like "stealing," that in some cases can be salutary conduct, slightly naughty conduct, or a serious crime isn't great debating technique. Just as poor, however, is pretending that the words don't mean what they mean.
The vast majority of patent cases are fought between the small to mid-sized company against much larger entities. Patents are the vehicle by which small and mid-sized companies --like TiVo--can effectively compete on an equal playing field with their much larger, better capitalized competitors.
It is what drives venture money to support start ups for companies founded by dudes with big ideas, and without which, nobody would ever want to be first to market with a big-R&D project.
Behemoth Microsoft is the perpetual defendant, not plaintiff, in these cases. It is the agile, flexible, upstarts who tend to benefit from the patent system, not the monoliths.
How does a tiny company win entry into the "cross-licensing" wars? That's easy, build some serious incremental inventions that improve the technology, and draft your own patent application. Yes, the newly "big boys" will try, at first, to toss you about -- and yes, they will be able to keep you at bay for awhile. But remember, there will be two companies cross-licensing their patents one against each other. If your technology is any good, the one who deals with you first wins! This means that both have to deal with you and guess what? Your good technology generates opportunity and value.
This is what mid-sized Japanese companies did to American consumer electronics in the 70s through the 80s. You decide for yourself who had the edge, those with the foundation patents, or those with the new technologies covered by blocking patents?
Great companies, big and small can be players --ALWAYS-- if they have: (1) technology and (2) savvy. It is true that cheesy, non-technology contributing companies cannot freeload off of the work of those who went before them and compete against TiVo with only TiVo's technology. The benefit of rewarding people who productize and bring to us the PVR as these guys did far outweighs the social costs of the marginal markups.
TiVos are cheap -- very cheap compared to their value. And they are excellent products that have been far more savvy about and friendly to their hacker communities than other counterparts. They deserve all they can milk form this.
In what world? I just bought the Phillips for essentially retail, because they were charging an Arm and a leg for the Sony. If you can give me a cite or a link, I can get some of those yankee bucks back. PLEASE, if there is a $90 Tivo out there at Circuit City or a competitor, post it by all means.
This only affect international disputes, say those in Canada.
To quote: "federal courts have jurisdiction over international domain name disputes".
ACPA and Lanham Act section 43(c) provide all the relief a nasty plaintiff might want in a domestic dispute. Nothing more is necessary. Any suggestion that the Court passed on or limited domestic complaints turns the case on its head -- this one addressed international complaints because the application of ACPA in that context raises significant constitutional issues under article III, and some treaty law questions.
This still won't take all the power away from WIPO and ICANN that it needs, but it's a step towards better arbitration. Domain names are not trademarks!
No, they are not. But once you use them in commerce, which is actually pretty not hard to do, that USE can give rise to trademark infringement. Even if it doesn't, there is a basis for a legal claim for dilution for ANY use "in commerce," even if it doesn't compete. Finally, even if none of those things happen, there is always a claim under ACPA.
This has always been the case, the UN has no direct legal authority to do anything at all, unless it involves wars between different countries.
WIPO arbitration has always been that, arbitration. Not legally binding. (of course, who knows what kind of contract stuff you implicitly signed on for when you purchased your domain)
The UN has no jurisdiction whatsoever, but the analysis fails from there going forward. Registrars under the ICANN must have registrants contractually bound to the UDRP, which means that the ICANN-sponsored arbitrators arbitrate the "ownership" of the domain name -- which is just a contract between the registrant and registrar to maintain the DNS records.
The arbitration result is legally enforceable in the United States, without review on the merits, as the arbitration is a final, unreviewable, determination on the merits of the CONTRACT between the registrant and the registrar. This doesn't mean that a losing complainant couldn't sue under ACPA, unfair comeptition and trademark law after losing, to enjoin the USE of the domain name by the registrant.
Oddly enough, the first circuit held that ACPA appears to effectively 'horn in" on that process, and would certainly preempt contract law to the extent that it does.
But make no mistake, UDRP dispute resolution is hardly a non-binding process. If a court order isn't sought and does not issue, a lost domain name is gone, gone, gone.
The arbitration under the UDRP is binding, to the extent that the registrar must comply with the result unless otherwise ordered by a Court of competent jurisdiction. Unless a losing party gets an order from a Court, the loser is out of luck.
Because the ICANN rules permit the petitioner to select the forum (the arb), is it at all unsurprising that when a lawyer (me too) is filing one of these things, she will obtain the statistics for the various arbs to determine which group, if any, is more pro-petitioner than another.
Since an arb result is unappealable, every arb result is final. There is therefore no downside for an arb to be pro-petitioner. Since the petitioner gets to decide which forum gets the fee, why would any arb panel ever consider doing anything other than hiring a bunch of pro-petitioner arbitrators, and eventually phasing out anyone who drops the panel's statistics?
For the respondants, by the way, the strategy is to pay extra for the three-judge panel. The statistics drop from something like 88% pro-petitioner for single-arb panels to mid-sixties.
And don't freak too much about the numbers -- the vast majority of cases I have seen are serious cybersquatting cases. Despite the statistics, I have yet to lose a case due to perceived bias, though I have seen some howler opinions elsewhere. I wonder if those result as much from poor or pro-se representation as from bad arbitration?
At any rate, the RULES create an inherently unbalanced world. ICANN, or preferably a panel responsible to the public, and not the petitioner, should select the panel by random drawing, and should supervise and investigate allegations of bias. Even though the decisions themselves are not reviewable, the arbitrator should be accountable to someone to do justice, not merely "help up the stats."
One other thing. Do you think that the kinds of terrorists to whom the USA/PATRIOT laws are directed are subject to intellectual arguments of deterrence? Do you seriously argue that ANY law would have deterred a person willing to turn himself into a human bomb?
No, we are only deterring normal people from doing normal things, as our life is turned upside down from statist overreaching. The terrorists are unaffected by legislative efforts to "deter" their conduct.
But most hackers are in a sense terrorist.
Just some bother more people than others. Yes a 12 year old who sits at his parents computer and launches DoS attack against companies or just Marge reading her AOL mail should be considered a criminal.
The crime is easy to commit, and hard to deter since audit trails are small to none. So the punishment must be bad enough to scare you away from doing these things.
Ridiculous, when you compare the costs of such threats. Yes, your daughter is more severely deterred from hacking, but the cost is that virtually every computer consultant today is inherently liable for extraordinary liability under the Computer Fraud and Abuse Act, by the mere shift of a few words. It seems that whatever marginal "deterrence" is gained by the USA/PATRIOT Act was lost by the years of productivity and commerce due to the unceasing caution and uncertainty caused to those who provide technical services.
By regulating technology more closely, so too are we choking one of our nation's greatest engines of commerce.
The error is grave.