With all due respect, bunk. It affects us all, at least those of us who use computers, and particularly those of us who consult using computers.
The FBI is now free, without court order or even timely notice, upon "reasonable suspicion," to circumvent and monitor your electronic transmissions, physically enter your home or install by remote hacking a keylogger, and to use or disclose such information freely.
They can now assert and make stick Computer Fraud and Abuse charges, with enhanced penalties, that would not have held water yesterday; and you are also exposed to substantially greater civil liability under the CFAA.
The motion was not about frivolousness
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DMCA 2, Freedom 0
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· Score: 5, Insightful
RIAA says "publish and we'll sue you or worse, we'll tell the FBI your research is a circumvention device" Why is it frivilous for Felten to come before a judge and say "hey, do they really have a case?"
The motion was not about frivolousness of the underlying questions (whether Felton could publish) and it was not about whether there was a case -- it was about whether there was a controversy.
Federal courts only have jurisdiction under the U.S. Constitution over "cases and controversies," and cannot give advisory opinions. If there is no actual dispute between the parties, the Court must not hear the case.
That was the basis for the motion to dismiss. RIAA said, "Whoops, we were wrong -- we're not going to sue if you publish." So Felton sued for a declaratory judgment.
There are exceptions to the requirement that a case be justiciable, and arguably this was such a case, capable of repetition yet evading review and infringing closely on the limits of the First Amendment by chilling free speech. That was the issue before the Court.
The subtle, totally legal, justiciability question was always hard. On the merits, I think it was very close, particularly absent an elaborate pattern and track record of sending letters to other researchers, though I liked EFF's first amendment "chilling" argument quite a bit. But I could easily see the question going the other way, and surviving an appeal.
But don't get this wrong -- this is not a victory for DMCA on the merits, not by a long shot. It is a procedural loss for the EFF for persisting to bring a case on facts that the RIAA was smart enough to drop. This goes to picking one's battles -- this could have been a good one for the anti-technology regulation movement, but it was not to be. Precisely, by the way, for that reason.
If his goal was to destroy the American way of life, there is no doubt he has succeeded. Alas, our conduct in defending this nation has had the effect of making a nation less worthy of defending.
It would be more tolerable if these acts truly were focused in a good faith effort to stop terrorism. They are not -- just a naked broadening of executive and investigatory power, cynically and wrongfully executed simply because the "time was right." The selfishness of corporate "citizens" with their hands out for "patriotic" retroactive tax breaks only adds to the cynicism.
This is just selfishness wrapped up in a flag. It sucks.
Quite a few European countries have had problems with terrorosts for years. The UK with the IRA, the Spanish with the Basque (sp?) seperatists etc etc.
In these countries laws on human rights and free speach prevail. (Albeit precariously sometimes, I admit!)
The US, confronted with some of its first terrorist attacks imediatly goes into panic, ignoring the spirit of its consitution.
Not. Jingoistic bunk.
UK Antitterrorism legislation has been around for more than a decade, provoked precisely by the IRA issues. It, too, had sunsetted but repetitively renewed investigatory powers and it, too, treats hackers as terrorists.
It was one of the models from which PATRIOT/USA was cast.
No doubt, the US fell to the standards of its EU allies in adopting PATRIOT/USA, focusing more on getting trains to run on time to defend a nation than to maintain a nation worth defending. No doubt, it was not the American thing to do.
But far from being an icon of liberty, the EU legislation was the harbinger of what happened here.
Quite a few European countries have had problems with terrorosts for years. The UK with the IRA, the Spanish with the Basque (sp?) seperatists etc etc.
In these countries laws on human rights and free speach prevail. (Albeit precariously sometimes, I admit!)
The US, confronted with some of its first terrorist attacks imediatly goes into panic, ignoring the spirit of its consitution.
Not. Jingoistic bunk.
UK Antitterrorism legislation has been around for more than a decade, provoked precisely by the IRA issues. It, too, had sunsetted but repetitively renewed investigatory powers and it, too, treats hackers as terrorists.
It was one of the models from which PATRIOT/USA was cast.
No doubt, the US fell to the standards of its EU allies in adopting PATRIOT/USA, focusing more on getting trains to run on time to defend a nation than to maintain a nation worth defending. No doubt, it was not the American thing to do.
But far from being an icon of liberty, the EU legislation was the harbinger of what happened here.
There are some other vague points in there, but I believe the patent is practically invalid due to the fact that it was built around technology available in 1976. Technology has grown so rapidly that this patent is nearly garbage today.
Bad assumption. Patents by their nature anticipate after-invented embodiments, and do not only cover the literal language of their claims, but also substantial equivalents not foreseen at the time of the application. While doctrine of equivalents claims provide for additional legal defenses, they permit patents broad scope, particularly in the circumstances you describe here.
So, if there is a literal interpretation, all you need to beat the patent is a mouse.
Not at all. The abstract defines nothing -- you must study the claims. The claim is the thing. Claim 1, for example, does make reference to a "key pad means", defining it functionally. This form of "means plus function" language is governed by 35 USC s. 112, paragraph 6, which defines the literal scope to include the corresponding portions of the specifications and its equivalents. Thus, a literal construction must consider whether the mouse as used to identify the hyperlink is substantially equivalent to a keypad used for the same purpose. That is, does it perform substantially the same function in substantially the same way to obtain substantially the same result.
It *IS*, most certainly a useful point for the defense, but hardly a dispositive one. This is particularly true, since the mouse, as of the effective filing date of July 20, 1976 would likely be considered after-invented technology.
Way to go. The FBI, in hopes of protecting the nation, introduces its mystical spyware to facilitate its enforcement. MacAfee, in its strong show of faux patriotism willfully places a security hole in its virus systems (and I have no doubt that some government backdoors is part of the Microsoft antitrust settlement).
Net result is that we have made an internet security infrastructure even weaker than it was before. While this overall approach is not likely to beat up on well-informed criminals and terrorists, it does weaken everybody else's system, making the nation even more vulnerable to actual cyberterrorism than it was before.
There is no doubt that Macafee's mindless show of patriotism invites a new breed of free-to-do-as-they-will virii from everyone, including terrorists -- merely by attempting to appear to be the Golden Lantern.
But moreover, it shows an economic cluelessness, inviting competitors to provide a service they do not. Even worse, it is one thing to sell a "here's some filters, we're trying to keep the buggers out," program, but another thing entirely to sell one KNOWING that it will permit viruses to go undetected. That additional scientermight even invite litigation from companies injured by their recklessness.
In short, it is amazing what a little jingoism can do to get people to lose their minds.
Sure, the US government is oppressive, except when compared to any other. No local magistrate has the power or ability to keep me from posting to this website, and should they try to do so, I have the power to sue them, undo the censorship, and get them to pay me for the exercise of that privilege.
Freedom of speech in the United States is not absolute, of course. But it is unparalleled elsewhere. In what other nation can you go to the nation's highest court and announce "Fuck the draft?" with absolute immunity?
It just occurred to me that the great deal Microsoft just got from the justice department could have included some secret quid pro quos, many of which are consistent with Microsoft including some ultimate FBI-enableable backdoors.
Note that the recent anti-terrorism legislation (USA-PATRIOT) has an express provision exempting negligent software from the Computer Fraud and Abuse Act, a bizarre provision to have thrust into that bill unless someone was negotiating protections from civil litigation for providing an undocumented backdoor.
Sure, its a conspiracy theory, but not a bad one. This package was just bundled up too prettily to be an accident.
Don't waste your breath with the DOJ -- they have already signed away the public's rights and are legally bound to support the settlement.
Instead write to the Court, during the period for public comments, which is all that is left between today and Microsoft's next to final "out." Even if you do not compel the Court to refuse to ratify the settlement, under a standard VERY favorable to Microsoft, this will be the same judge to hear the penalty phase in the case with the remaining states. As a human being, she will remember what you tell her.
The DOJ box is a diversion. Write there as well, if you like, but only after you have registered your thoughtful comments with the Court.
It no longer matters under U.S. law when they claim invention, under the new patent regime, which is since 1987 IIRC. (The U.S. in the eighties amended its patent and copyright laws to make them conformant to international standards.)
This is not the case. America remains a first-to-invent nation, notwithstanding some conforming amendments to the Patent Act. A patent can be invalidated on grounds of prior invention. See, e.g. 35 U.S.C. s. 102.
However, for prior art from other companies or from private individuals, the day before the patent is filed is early enough to qualify as valid prior art.
Not at all. Again, see 35 U.S.C. s. 102. Prior art must be published prior to the critical date, which is one year prior to the date of filing. Of course, prior art published during the one-year period between the critical date and filing can invalidate a patent, but a sworn statement of conception of the invention on or prior to the date of the reference will suffice to overcome a rejection.
Yes, the U.S. Patent Office lets you patent the rules to games. No other patent office in the world does. There are worse things than software patents out there.
Overstated and understated. That is to say, wrong. Not all game rules are patentable, and most nations do not prohibit a patentable invention merely because it embodies rules to a game. One can usually, but not always, obtain some form of coverage for inventive game mechanics, provided of course, they are new, useful and unobvious. The devil is in the details, but the general statement above doesn't approximate the truth.
So they have a "commercial advance" button. What if they didn't? Would it not be copyright infringement then?
It would not be copyright infringement, under the holding of the Supreme Court Sony Betamax case. There, the Court held that time-shifting of a VCR does not give rise to copyright infringement liability for the manufacturer of the VCR because the end-user's time-shift is fair use. Even if some users might use the VCR to copy commercial videos or otherwise engage in copyright infringement, the substantial noninfringing use of time-shifting gets the manufacturer off the hook.
But the fair use factors include the impact on a marketplace. Time-shifting was blessed under 17 U.S.C. s. 107 (factor 4), because it actually involved an increase in commercial viewing.
Not so with replayTV's commercial advance. Or so the argument goes.
Without passing on the question, the studios certainly have a case to make. Without commercial advance, there would be slam-dunk Supreme Court authority in support of the defendant. With it, the Sony case is arguably distinguishable.
So they have a "commercial advance" button. What if they didn't? Would it not be copyright infringement then?
It would not be copyright infringement, under the holding of the Sony Betamax case. There, the Court held that time-shifting of a VCR does not give rise to copyright infringement liability for the manufacturer of the VCR because the end-user's time-shift is fair use. Even if some users might use the VCR to copy commercial videos or otherwise engage in copyright infringement, the substantial noninfringing use of time-shifting gets the manufacturer off the hook.
But the fair use factors include the impact on a marketplace. Time-shifting was blessed under 17 U.S.C. s. 107 (factor 4), because it actually involved an increase in commercial viewing.
Not so with replayTV's commercial advance. Or so the argument goes.
Without passing on the question, the studios certainly have a case to make. Without commercial advance, there would be slam-dunk Supreme Court authority in support of the defendant. With it, the Sony case is arguably distinguishable.
It makes no sense for an "open source project" to respond to an RFP. It is the nature of Open Source Licenses PRECISELY TO DISCLAIM that the software does anything or is suitable for any purpose. Most OSS projects are a decentralized group, or a deepcore+fuzzypenumbra of individuals, who do not have authority to act for or on behalf of one another.
In short, the commercial relationship sought by forwarding an RFP to a "project" or with respect to a particular OSS codeset is improbable, at best, and most likely incoherent.
On the other hand, there is a great opportunity for a forward-looking company. Perhaps you might direct your RFPs not to software vendors per se, but to application integrators and consultants, making clear that you intend to buy on total cost of ownership, and that you would like the proposal to be based both upon proprietary and open source solutions.
Now, you are hitting where it hurts for the benefit of the company. The application integrator who is used to taking a commission on the software is now going to bid for a value-added combination of the free software plus integration and consulting fees, and is going to seek to make a buck in that matter.
I would expect that the consulting costs would be valued at a premium over traditional value-add deals, since they include providing services (support and maintenance) that are ordinarily provided by a software vendor, and my be asked to "stand behind" the software with a committment to repair bugs and the like. But there is a buck to be made there, and a lot of flex, since the software licensing cost for the RFP is out of the picture.
His risk in not bidding the OSS solution is that a competitor will do so, and outdo him by a fair amount. If such RFP's were prepared and built in a practical manner, and responses for OSS software seriously considered, the premiums between consultants would diminish over time due to competition (or vary based upon reputation).
This is a business model that could be exciting.
But a straight-up response to a traditional commercial RFP? That's silly. Also, read your RFP language -- most standard forms require commitments of a vendor that NO Open Source software can provide, as to warranties, indemnities and so forth. Remember, you not only need to get the beans to count, you also need to please legal.
As discussed elsewhere, the incorporation of many violations of the Computer Fraud and Abuse Act in the list of predicates for acts of federal terrorism now exposes many technologists to potential life sentences.
But there are some even more invidious changes -- the rewrite of the civil remedies provisions to eliminate the requirement of $5,000 actual damages for CFAA violations in many cases. In recent cases, the $5,000 limit has been the only thing between a mere allegation of exceeding authority and a cause of action.
Here's the typical scenario. Technology consultant does work for customer. Some difficulties arise between them, and they decide to go their separate ways. Technologist presents his final bills, customer stiffs him.
In the old days, the time-and-materials technologist had a slam-dunk collection action. "Your honor, I gave him a bill for time and materials, and he didn't pay."
Under the new regime, the deadbeat customer need only allege that a technologist's use of a customer computer exceeded authority, and there you are: a built-in criminal counterclaim for civil remedies. Because of the rewrite, one that is guaranteed to survive motions to dismiss and for summary judgment. One guaranteed to result in a settlement.
Yeah, terrorism absolutely required a change to the civil remedies of the CFAA. NOT!
Nor did it require the microsoft-friendly civil remedies exemption for negligent delivery of software resulting in hacking.
Terrorism had nothing to do with this bill. Nothing. It was the excuse, not the reason, for passing a bill that, were the provisions measured in the light of a different day, would never have stood a chance. This bill will not reduce terrorism, only liberty.
Indeed, upon passage of this bill, the terrorists finally won. Congratulations, America! Our representatives have finally done what bin Laden could not do: they have made us less free.
I'm afraid I really don't understand what viewpoint you're coming from. Are you talking about for a company that's developing software, or just using it? You keep talking about indemnification, but I don't see what you mean by that.
Look at any software license (other than the free kind) to see what I mean. I am talking about the provision where the licensor agrees to defend and indemnify the licensee against third party claims. In most modern licenses, such indemnification is usually limited to intellectual property claims.
Of course, the other side is that a large company stands a much better chance against you in court, regardless of what documents you have, than a small company or an individual.
Not at all -- we are talking about the LARGE company indemnifying the licensee about claims from third parties, regardless of who is the plaintiff.
And if you're not developing software, then with open source software there are zero, nada bupkis, limitations on what you can do with it. . . . so if all you do is use the software, there is NO way you can get into legal trouble.
Not. Mere use of patented, copyrighted or trade secreted software can get you into lots of trouble. That's why indemnification is a really, really good idea for risk management.
It varies, as you would expect. . .
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Opposing Open Source?
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· Score: 4, Insightful
Much depends upon the specific open source software, the specific commercial alternatives and whether the enterprise intends merely to use or develop new software therefrom.
Key issues are support (legal and technical), and risk management. Many corporate General Counsels are deeply concerned about issues such as warranty and intellectual property indemnification, areas for which open source offers zero, nada bupkis, and for which varying improvements can be found in the proprietary sector. Technical support is well-covered in other responses.
Legal support in the form of support agreements and/or decent warranties have meaning to corporate lawyers and businessmen, particularly when coming from a decent enterprise. They are not always available, and in some cases expressly not available, but AT LEAST, these warranties are (even for Microsoft) much better than the NO WARRANTY, "AS-IS" warranty given by most open source licenses.
Indemnification *IS* a big issue, make no mistake -- and an indemnification coming from a large corporate enterprise is tantamount to an insurance policy against infringement; as compared to one coming from a small entity (worth less than nothing) or an individual, as compared to one offering no rep, warranty or indemnification against infringement at all.
This is not to say that these arguments are unanswerable in every case. The devil is in the details, and you need to compare specific products before you can balance and weigh the issues. But the questions ALWAYS need to be weighed.
Finally, there is a meaningful legal cost involved with open source compliance. Specific licenses need to be weighed depending how the software is used, and complied with in full. This means that procedures need to be followed, opinions need to be written and so forth, which in some cases (particularly in the development or modifications arena) can be pricey overhead that may outweigh the costs and benefits gained by differences in price. Of course, to do so, I would compare costs of an open source compliance policy against the price of a commercial source code license, but still, I have seen corporate folks decide to go commercial on bean-counting alone.
A predicate thesis of terrorism is that a nation can never fight terrorism, precisely because it is not a nation, does not have targets and therefore is untouchable. Similar arguments are often made to suggest the internet is not regulable.
Neither thesis is true. At the end of the day, a terrorist must be somewhere, and that somewhere is going to be subject to some national jurisdiction. The jiu jitsu is what our president did -- we are at war with the terrorists AND THOSE NATIONS THAT HARBOR OR FEED THEM. We then war, traditionally, with nations or authorities that harbor terrorism, and thereby deprive the terrorists of places from which to launch their evils.
We aren't at war with Afghanistan, by the way, but with the occupying authority -- the Taliban -- which is recognized by almost no nation on earth.
Such hair-splitting (though entirely true and accurate) doesn't make a slight bit of difference, because the overall effect is to create in a casual observer a likelihood of confusion. The issue isn't a question of what "is, is," as one might begin a defamation analysis, but rather one of the overall commercial impact of the page.
In short, given the broad-based customer base that Apple has, if more than 50% of surveyed non-geek customers would answer that the page suggests affiliation, connection, association, origin, sponsorship or approval, count yourself a loser in court. See 15 U.S.C. s. 1125(a).
The logo at the bottom doesn't make the case, it just makes proving the case trivial -- however helpful it might seem to point out that the use of the logotype there was an honest one. The overall impact to the marketplace representative (who is hardly as savvy as you), is going to be one leading not only likely to lead to a finding of infringement, but additionally one of willfulness.
Look, guys, stepping over the limits of trade dress and product configuration is a really bad idea. Little is gained by doing it, and ultimately much credibility of the virtues of what we do is lost thereby. Vested commercial interests, the real bad guys, like RIAA, MPAA and others have effectively and completely marginalized the technical community, making laws like DMCA and the SCCCA possible.
Formerly strong political lobbies in technical matters, like those of the ACM and IEEE are now losing credibility in key political circles, and for what? To cock a snoot or two at apple? Puh-leze.
The screenshot web page, in particular, is very dangerous for a prospective defendant. Particularly by the use of the apple logo at the very bottom, it invites summary responses. And nobody should be surprised or offended when they happen.
This is bad for Apple, but worse for open source. Apple has the law on its side for this one, and we gain little.
A recent trademark case in the 11th Circuit made clear that use of a trademark together with open source software (Coolmail) is use in commerce, and this is a GOOD THING. In that case, the basis for the holding resulted in sustaining a trademark owned by the open source coder, and holding that the GPL didn't abandon the mark.
To defend this use of trade dress/product configuration as non-commercial use basically seeks to gives away and undercut a very important ruling that benefits real developers of real open source product. Stupid, stupid, stupid.
Slashdot Mirror
With all due respect, bunk. It affects us all, at least those of us who use computers, and particularly those of us who consult using computers.
The FBI is now free, without court order or even timely notice, upon "reasonable suspicion," to circumvent and monitor your electronic transmissions, physically enter your home or install by remote hacking a keylogger, and to use or disclose such information freely.
They can now assert and make stick Computer Fraud and Abuse charges, with enhanced penalties, that would not have held water yesterday; and you are also exposed to substantially greater civil liability under the CFAA.
RIAA says "publish and we'll sue you or worse, we'll tell the FBI your research is a circumvention device" Why is it frivilous for Felten to come before a judge and say "hey, do they really have a case?"
The motion was not about frivolousness of the underlying questions (whether Felton could publish) and it was not about whether there was a case -- it was about whether there was a controversy.
Federal courts only have jurisdiction under the U.S. Constitution over "cases and controversies," and cannot give advisory opinions. If there is no actual dispute between the parties, the Court must not hear the case.
That was the basis for the motion to dismiss. RIAA said, "Whoops, we were wrong -- we're not going to sue if you publish." So Felton sued for a declaratory judgment.
There are exceptions to the requirement that a case be justiciable, and arguably this was such a case, capable of repetition yet evading review and infringing closely on the limits of the First Amendment by chilling free speech. That was the issue before the Court.
The subtle, totally legal, justiciability question was always hard. On the merits, I think it was very close, particularly absent an elaborate pattern and track record of sending letters to other researchers, though I liked EFF's first amendment "chilling" argument quite a bit. But I could easily see the question going the other way, and surviving an appeal.
But don't get this wrong -- this is not a victory for DMCA on the merits, not by a long shot. It is a procedural loss for the EFF for persisting to bring a case on facts that the RIAA was smart enough to drop. This goes to picking one's battles -- this could have been a good one for the anti-technology regulation movement, but it was not to be. Precisely, by the way, for that reason.
If his goal was to destroy the American way of life, there is no doubt he has succeeded. Alas, our conduct in defending this nation has had the effect of making a nation less worthy of defending.
It would be more tolerable if these acts truly were focused in a good faith effort to stop terrorism. They are not -- just a naked broadening of executive and investigatory power, cynically and wrongfully executed simply because the "time was right." The selfishness of corporate "citizens" with their hands out for "patriotic" retroactive tax breaks only adds to the cynicism.
This is just selfishness wrapped up in a flag. It sucks.
Quite a few European countries have had problems with terrorosts for years. The UK with the IRA, the Spanish with the Basque (sp?) seperatists etc etc.
In these countries laws on human rights and free speach prevail. (Albeit precariously sometimes, I admit!)
The US, confronted with some of its first terrorist attacks imediatly goes into panic, ignoring the spirit of its consitution.
Not. Jingoistic bunk.
UK Antitterrorism legislation has been around for more than a decade, provoked precisely by the IRA issues. It, too, had sunsetted but repetitively renewed investigatory powers and it, too, treats hackers as terrorists.
It was one of the models from which PATRIOT/USA was cast.
No doubt, the US fell to the standards of its EU allies in adopting PATRIOT/USA, focusing more on getting trains to run on time to defend a nation than to maintain a nation worth defending. No doubt, it was not the American thing to do.
But far from being an icon of liberty, the EU legislation was the harbinger of what happened here.
Quite a few European countries have had problems with terrorosts for years. The UK with the IRA, the Spanish with the Basque (sp?) seperatists etc etc.
In these countries laws on human rights and free speach prevail. (Albeit precariously sometimes, I admit!)
The US, confronted with some of its first terrorist attacks imediatly goes into panic, ignoring the spirit of its consitution.
Not. Jingoistic bunk.
UK Antitterrorism legislation has been around for more than a decade, provoked precisely by the IRA issues. It, too, had sunsetted but repetitively renewed investigatory powers and it, too, treats hackers as terrorists.
It was one of the models from which PATRIOT/USA was cast.
No doubt, the US fell to the standards of its EU allies in adopting PATRIOT/USA, focusing more on getting trains to run on time to defend a nation than to maintain a nation worth defending. No doubt, it was not the American thing to do.
But far from being an icon of liberty, the EU legislation was the harbinger of what happened here.
There are some other vague points in there, but I believe the patent is practically invalid due to the fact that it was built around technology available in 1976. Technology has grown so rapidly that this patent is nearly garbage today.
Bad assumption. Patents by their nature anticipate after-invented embodiments, and do not only cover the literal language of their claims, but also substantial equivalents not foreseen at the time of the application. While doctrine of equivalents claims provide for additional legal defenses, they permit patents broad scope, particularly in the circumstances you describe here.
So, if there is a literal interpretation, all you need to beat the patent is a mouse.
Not at all. The abstract defines nothing -- you must study the claims. The claim is the thing. Claim 1, for example, does make reference to a "key pad means", defining it functionally. This form of "means plus function" language is governed by 35 USC s. 112, paragraph 6, which defines the literal scope to include the corresponding portions of the specifications and its equivalents. Thus, a literal construction must consider whether the mouse as used to identify the hyperlink is substantially equivalent to a keypad used for the same purpose. That is, does it perform substantially the same function in substantially the same way to obtain substantially the same result.
It *IS*, most certainly a useful point for the defense, but hardly a dispositive one. This is particularly true, since the mouse, as of the effective filing date of July 20, 1976 would likely be considered after-invented technology.
Even if all of the Xanadu stuff was written in 1987 (and it wasn't), wouldn't that be prior art for this 1989 patent?
Although the patent issued in 1989, it takes priority from an application filed in 1976. Virtually all modern network uses would fail as prior art.
Specific dates of publication and the specific text published would be necessary to evaluate this question.
Way to go. The FBI, in hopes of protecting the nation, introduces its mystical spyware to facilitate its enforcement. MacAfee, in its strong show of faux patriotism willfully places a security hole in its virus systems (and I have no doubt that some government backdoors is part of the Microsoft antitrust settlement).
Net result is that we have made an internet security infrastructure even weaker than it was before. While this overall approach is not likely to beat up on well-informed criminals and terrorists, it does weaken everybody else's system, making the nation even more vulnerable to actual cyberterrorism than it was before.
All we have done is to make a nation weaker.
There is no doubt that Macafee's mindless show of patriotism invites a new breed of free-to-do-as-they-will virii from everyone, including terrorists -- merely by attempting to appear to be the Golden Lantern.
But moreover, it shows an economic cluelessness, inviting competitors to provide a service they do not. Even worse, it is one thing to sell a "here's some filters, we're trying to keep the buggers out," program, but another thing entirely to sell one KNOWING that it will permit viruses to go undetected. That additional scientermight even invite litigation from companies injured by their recklessness.
In short, it is amazing what a little jingoism can do to get people to lose their minds.
Sure, the US government is oppressive, except when compared to any other. No local magistrate has the power or ability to keep me from posting to this website, and should they try to do so, I have the power to sue them, undo the censorship, and get them to pay me for the exercise of that privilege.
Freedom of speech in the United States is not absolute, of course. But it is unparalleled elsewhere. In what other nation can you go to the nation's highest court and announce "Fuck the draft?" with absolute immunity?
It just occurred to me that the great deal Microsoft just got from the justice department could have included some secret quid pro quos, many of which are consistent with Microsoft including some ultimate FBI-enableable backdoors.
Note that the recent anti-terrorism legislation (USA-PATRIOT) has an express provision exempting negligent software from the Computer Fraud and Abuse Act, a bizarre provision to have thrust into that bill unless someone was negotiating protections from civil litigation for providing an undocumented backdoor.
Sure, its a conspiracy theory, but not a bad one. This package was just bundled up too prettily to be an accident.
Don't waste your breath with the DOJ -- they have already signed away the public's rights and are legally bound to support the settlement.
Instead write to the Court, during the period for public comments, which is all that is left between today and Microsoft's next to final "out." Even if you do not compel the Court to refuse to ratify the settlement, under a standard VERY favorable to Microsoft, this will be the same judge to hear the penalty phase in the case with the remaining states. As a human being, she will remember what you tell her.
The DOJ box is a diversion. Write there as well, if you like, but only after you have registered your thoughtful comments with the Court.
It no longer matters under U.S. law when they claim invention, under the new patent regime, which is since 1987 IIRC. (The U.S. in the eighties amended its patent and copyright laws to make them conformant to international standards.)
This is not the case. America remains a first-to-invent nation, notwithstanding some conforming amendments to the Patent Act. A patent can be invalidated on grounds of prior invention. See, e.g. 35 U.S.C. s. 102.
However, for prior art from other companies or from private individuals, the day before the patent is filed is early enough to qualify as valid prior art.
Not at all. Again, see 35 U.S.C. s. 102. Prior art must be published prior to the critical date, which is one year prior to the date of filing. Of course, prior art published during the one-year period between the critical date and filing can invalidate a patent, but a sworn statement of conception of the invention on or prior to the date of the reference will suffice to overcome a rejection.
Yes, the U.S. Patent Office lets you patent the rules to games. No other patent office in the world does. There are worse things than software patents out there.
Overstated and understated. That is to say, wrong. Not all game rules are patentable, and most nations do not prohibit a patentable invention merely because it embodies rules to a game. One can usually, but not always, obtain some form of coverage for inventive game mechanics, provided of course, they are new, useful and unobvious. The devil is in the details, but the general statement above doesn't approximate the truth.
So they have a "commercial advance" button. What if they didn't? Would it not be copyright infringement then?
It would not be copyright infringement, under the holding of the Supreme Court Sony Betamax case. There, the Court held that time-shifting of a VCR does not give rise to copyright infringement liability for the manufacturer of the VCR because the end-user's time-shift is fair use. Even if some users might use the VCR to copy commercial videos or otherwise engage in copyright infringement, the substantial noninfringing use of time-shifting gets the manufacturer off the hook.
But the fair use factors include the impact on a marketplace. Time-shifting was blessed under 17 U.S.C. s. 107 (factor 4), because it actually involved an increase in commercial viewing.
Not so with replayTV's commercial advance. Or so the argument goes.
Without passing on the question, the studios certainly have a case to make. Without commercial advance, there would be slam-dunk Supreme Court authority in support of the defendant. With it, the Sony case is arguably distinguishable.
So they have a "commercial advance" button. What if they didn't? Would it not be copyright infringement then?
It would not be copyright infringement, under the holding of the Sony Betamax case. There, the Court held that time-shifting of a VCR does not give rise to copyright infringement liability for the manufacturer of the VCR because the end-user's time-shift is fair use. Even if some users might use the VCR to copy commercial videos or otherwise engage in copyright infringement, the substantial noninfringing use of time-shifting gets the manufacturer off the hook.
But the fair use factors include the impact on a marketplace. Time-shifting was blessed under 17 U.S.C. s. 107 (factor 4), because it actually involved an increase in commercial viewing.
Not so with replayTV's commercial advance. Or so the argument goes.
Without passing on the question, the studios certainly have a case to make. Without commercial advance, there would be slam-dunk Supreme Court authority in support of the defendant. With it, the Sony case is arguably distinguishable.
I doubt you'll get much in the way of indemnities from a major proprietary developer and very little in the way of warranties either.
We invariably get virtually comprehensive indemnification with respect to intellectual property issues (and often for package software as well).
Warranties are always negotiable, and vary from time to time, but it is common to get warranties of conformity with spec or published documentation.
It makes no sense for an "open source project" to respond to an RFP. It is the nature of Open Source Licenses PRECISELY TO DISCLAIM that the software does anything or is suitable for any purpose. Most OSS projects are a decentralized group, or a deepcore+fuzzypenumbra of individuals, who do not have authority to act for or on behalf of one another.
In short, the commercial relationship sought by forwarding an RFP to a "project" or with respect to a particular OSS codeset is improbable, at best, and most likely incoherent.
On the other hand, there is a great opportunity for a forward-looking company. Perhaps you might direct your RFPs not to software vendors per se, but to application integrators and consultants, making clear that you intend to buy on total cost of ownership, and that you would like the proposal to be based both upon proprietary and open source solutions.
Now, you are hitting where it hurts for the benefit of the company. The application integrator who is used to taking a commission on the software is now going to bid for a value-added combination of the free software plus integration and consulting fees, and is going to seek to make a buck in that matter.
I would expect that the consulting costs would be valued at a premium over traditional value-add deals, since they include providing services (support and maintenance) that are ordinarily provided by a software vendor, and my be asked to "stand behind" the software with a committment to repair bugs and the like. But there is a buck to be made there, and a lot of flex, since the software licensing cost for the RFP is out of the picture.
His risk in not bidding the OSS solution is that a competitor will do so, and outdo him by a fair amount. If such RFP's were prepared and built in a practical manner, and responses for OSS software seriously considered, the premiums between consultants would diminish over time due to competition (or vary based upon reputation).
This is a business model that could be exciting.
But a straight-up response to a traditional commercial RFP? That's silly. Also, read your RFP language -- most standard forms require commitments of a vendor that NO Open Source software can provide, as to warranties, indemnities and so forth. Remember, you not only need to get the beans to count, you also need to please legal.
As discussed elsewhere, the incorporation of many violations of the Computer Fraud and Abuse Act in the list of predicates for acts of federal terrorism now exposes many technologists to potential life sentences.
But there are some even more invidious changes -- the rewrite of the civil remedies provisions to eliminate the requirement of $5,000 actual damages for CFAA violations in many cases. In recent cases, the $5,000 limit has been the only thing between a mere allegation of exceeding authority and a cause of action.
Here's the typical scenario. Technology consultant does work for customer. Some difficulties arise between them, and they decide to go their separate ways. Technologist presents his final bills, customer stiffs him.
In the old days, the time-and-materials technologist had a slam-dunk collection action. "Your honor, I gave him a bill for time and materials, and he didn't pay."
Under the new regime, the deadbeat customer need only allege that a technologist's use of a customer computer exceeded authority, and there you are: a built-in criminal counterclaim for civil remedies. Because of the rewrite, one that is guaranteed to survive motions to dismiss and for summary judgment. One guaranteed to result in a settlement.
Yeah, terrorism absolutely required a change to the civil remedies of the CFAA. NOT!
Nor did it require the microsoft-friendly civil remedies exemption for negligent delivery of software resulting in hacking.
Terrorism had nothing to do with this bill. Nothing. It was the excuse, not the reason, for passing a bill that, were the provisions measured in the light of a different day, would never have stood a chance. This bill will not reduce terrorism, only liberty.
Indeed, upon passage of this bill, the terrorists finally won. Congratulations, America! Our representatives have finally done what bin Laden could not do: they have made us less free.
Open standards always win.
Yeah, just look at IBM's market share today.
I'm afraid I really don't understand what viewpoint you're coming from. Are you talking about for a company that's developing software, or just using it? You keep talking about indemnification, but I don't see what you mean by that.
Look at any software license (other than the free kind) to see what I mean. I am talking about the provision where the licensor agrees to defend and indemnify the licensee against third party claims. In most modern licenses, such indemnification is usually limited to intellectual property claims.
Of course, the other side is that a large company stands a much better chance against you in court, regardless of what documents you have, than a small company or an individual.
Not at all -- we are talking about the LARGE company indemnifying the licensee about claims from third parties, regardless of who is the plaintiff.
And if you're not developing software, then with open source software there are zero, nada bupkis, limitations on what you can do with it. . . . so if all you do is use the software, there is NO way you can get into legal trouble.
Not. Mere use of patented, copyrighted or trade secreted software can get you into lots of trouble. That's why indemnification is a really, really good idea for risk management.
Much depends upon the specific open source software, the specific commercial alternatives and whether the enterprise intends merely to use or develop new software therefrom.
Key issues are support (legal and technical), and risk management. Many corporate General Counsels are deeply concerned about issues such as warranty and intellectual property indemnification, areas for which open source offers zero, nada bupkis, and for which varying improvements can be found in the proprietary sector. Technical support is well-covered in other responses.
Legal support in the form of support agreements and/or decent warranties have meaning to corporate lawyers and businessmen, particularly when coming from a decent enterprise. They are not always available, and in some cases expressly not available, but AT LEAST, these warranties are (even for Microsoft) much better than the NO WARRANTY, "AS-IS" warranty given by most open source licenses.
Indemnification *IS* a big issue, make no mistake -- and an indemnification coming from a large corporate enterprise is tantamount to an insurance policy against infringement; as compared to one coming from a small entity (worth less than nothing) or an individual, as compared to one offering no rep, warranty or indemnification against infringement at all.
This is not to say that these arguments are unanswerable in every case. The devil is in the details, and you need to compare specific products before you can balance and weigh the issues. But the questions ALWAYS need to be weighed.
Finally, there is a meaningful legal cost involved with open source compliance. Specific licenses need to be weighed depending how the software is used, and complied with in full. This means that procedures need to be followed, opinions need to be written and so forth, which in some cases (particularly in the development or modifications arena) can be pricey overhead that may outweigh the costs and benefits gained by differences in price. Of course, to do so, I would compare costs of an open source compliance policy against the price of a commercial source code license, but still, I have seen corporate folks decide to go commercial on bean-counting alone.
A predicate thesis of terrorism is that a nation can never fight terrorism, precisely because it is not a nation, does not have targets and therefore is untouchable. Similar arguments are often made to suggest the internet is not regulable.
Neither thesis is true. At the end of the day, a terrorist must be somewhere, and that somewhere is going to be subject to some national jurisdiction. The jiu jitsu is what our president did -- we are at war with the terrorists AND THOSE NATIONS THAT HARBOR OR FEED THEM. We then war, traditionally, with nations or authorities that harbor terrorism, and thereby deprive the terrorists of places from which to launch their evils.
We aren't at war with Afghanistan, by the way, but with the occupying authority -- the Taliban -- which is recognized by almost no nation on earth.
Such hair-splitting (though entirely true and accurate) doesn't make a slight bit of difference, because the overall effect is to create in a casual observer a likelihood of confusion. The issue isn't a question of what "is, is," as one might begin a defamation analysis, but rather one of the overall commercial impact of the page.
In short, given the broad-based customer base that Apple has, if more than 50% of surveyed non-geek customers would answer that the page suggests affiliation, connection, association, origin, sponsorship or approval, count yourself a loser in court. See 15 U.S.C. s. 1125(a).
The logo at the bottom doesn't make the case, it just makes proving the case trivial -- however helpful it might seem to point out that the use of the logotype there was an honest one. The overall impact to the marketplace representative (who is hardly as savvy as you), is going to be one leading not only likely to lead to a finding of infringement, but additionally one of willfulness.
Look, guys, stepping over the limits of trade dress and product configuration is a really bad idea. Little is gained by doing it, and ultimately much credibility of the virtues of what we do is lost thereby. Vested commercial interests, the real bad guys, like RIAA, MPAA and others have effectively and completely marginalized the technical community, making laws like DMCA and the SCCCA possible.
Formerly strong political lobbies in technical matters, like those of the ACM and IEEE are now losing credibility in key political circles, and for what? To cock a snoot or two at apple? Puh-leze.
The screenshot web page, in particular, is very dangerous for a prospective defendant. Particularly by the use of the apple logo at the very bottom, it invites summary responses. And nobody should be surprised or offended when they happen.
This is bad for Apple, but worse for open source. Apple has the law on its side for this one, and we gain little.
A recent trademark case in the 11th Circuit made clear that use of a trademark together with open source software (Coolmail) is use in commerce, and this is a GOOD THING. In that case, the basis for the holding resulted in sustaining a trademark owned by the open source coder, and holding that the GPL didn't abandon the mark.
To defend this use of trade dress/product configuration as non-commercial use basically seeks to gives away and undercut a very important ruling that benefits real developers of real open source product. Stupid, stupid, stupid.