True, but I've read this one, and it is general enough to cover just about every Content Management System
Probably not, as the examiner records that he compared the claims against some fairly fundamental content management technology, including WEBDAV, BSCW, Zope and the Carolyn Kraut article on site-development tools.
The best way is to carefully study the claim and compare it, limitation by limitation against your technology-du-jour, but a review of the prosecution history would probably give you the quickest insight as to how the claim differs. Examiner shows some prior art, and the lawyer explains why it is patentably distinguishable -- those explanations limit the scope of any patent that might issue.
Look, here's the deal. The abstract, by regulation and statute, has no bearing whatsoever as to the scope of a patent. None, nada, bupkis. Don't characterize a patent by the abstract -- you'll be wrong, often wildly wrong.
Look to the patent claim, which governs the scope of the patent grant. Understand that the meaning of that claim may depend upon many other things. And be cool -- most patents are much narrower than they seem to a lay reader.
1. A computer system comprising a tool for creating Web sites having user specified features, the system comprising:
identifying means for identifying an interface browser means during the creation or editing of content for a Web site, wherein the identifying means identifies, at least, the particular type of interface browser means being implemented to create or edit the Web site content;
presenting means, responsive to the identifying means, for presenting a plurality of views, wherein the plurality of views comprise menus of user selectable features, and wherein the presenting means presents predetermined ones of the plurality of views based upon the interface browser means identified;
selecting means for enabling a user to select one or more of the user selectable features, and wherein the user selectable features comprise one or more browser specific features that further comprise features predetermined to accommodate predetermined interface browser means;
storage means that stores, at least, common browser features that may be presented on a created Web site independent of browser type used to access the created Web site, the browser specific features selected so that the browser specific features selected may be presented on the created Web site when the created Web site is accessed by the predetermined interface browser means, and alternative browser features that display on the created Web site when the created Web site is accessed by browser means other than the predetermined interface browser means;
template means, associated with the one or more of the user selectable features; and
assembling means for assembling a Web site by retrieving the template means associated with the one or more of the user selectable features selected, and adding to the template means the common browser features, and either the browser specific features selected when the created Web site is accessed by the predetermined interface browser means, or the alternative browser features when the created Web site is accessed by browser means other than the predetermined interface browser means.
Congress didn't bite, but in the meanwhile . . .
on
RIAA Wants Right To Hack
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· Score: 3, Interesting
. . . we are now in a position to turn the tabled on RIAA, using the USAA's overreaching revision of civil remedies for hacking.
Perhaps it is time to set up some serious MP3-baited honeypots, and just wait for RIAA to bury themselves?
I can think of nothing more useful to turn the tables on RIAA's currently pristine image in Congress (or at least to get Congress to re-think their ludicrous rewiring of criminal computer laws), than to show the unintended consequences of massive remedies for improper hacking.
The original definitions of hacker had nothing to do with computers. As applied to computer folks, RMS, Goldblatt and the rest of the MIT crew defined the archetype, per Steve Levy's book, "Hackers."
It wasn't until quite a bit later that the "other definition" joined in the fun, by all accounts I have seen. Certainly, I don't recall any authority for the proposition that unwarranted entry was an "original definition."
Well, from now on, we're going to use the statutory definition, which includes those of us who violate Section 1030, as amended -- that is, those of us for whom another person alleges used a computer without authorization, or who exceeded authorized access.
Worse than the civil liberties hits, USAA is more dangerous for we programmers and technical people than you may ever have imagined.
If nothing else, calling attention to it earlier may have helped them in ealier litigation
Only if they had a crystal ball. Napster DID counterclaim for misuse, by the way, albeit on other grounds.
But your facts are way off. The agreement did not exist at the time of the preliminary injunction hearing, so it couldn't have been raised at the time. Facts not on the record (that is, not adduced in the earlier injunction proceedings) are not relevant to the appeal, which is what we have been watching the past 18-24 months.
It couldn't have helped them on appeal. It can only help them going forward. They will use this, and already have.
The American Family Association has significant representation on the City Counsel through one Bob Buckhorn, which is what gave rise to this matter. Representatives for the defendants, an able First Amendment attorney, raised the First Amendment issues, but the Court didn't reach them because the zoning ordinance itself was held to require that the entertainment not merely originate in, but also be received in, the alleged adult entertainment facility (hence the social impact).
Ultimately AFA Bob will probably rework the ordinance, the case will once again be tried and the defendants lose below, and the Eleventh Circuit will once again have the issue, but will ultimately have to face the (very interesting) First Amendment questions.
The Eleventh Circuit did not hold that the cyberspace conduct wasn't *in* Tampa, they merely held that a particular Tampa zoning ordinance prohibiting offering of adult entertainment to members of the public presumes that the customers physically attend the premises so zoned and wherein the entertainment is performed.
It isn't a very deep or fundamental observation about technology to suggest that a person at the other end of a communications line from a source location isn't physically located at the source. Saying that it is "in virtual space," wasn't really more meaningful than that, except in the case where the other guy is also in Tampa, albeit at a different place.
Because the statute itself didn't expressly address regulation of sources of publication, the Court didn't address the First Amendment issues.
First Sale is codified at 17 U.S.C. section 109. It is available, unfortunately for your theory, only to "the owner of a particular copy or phonorecord lawfully made under this title."
Show that you own title to the copy, and you're in. Merely being a "consumer," as you say, won't cut it. Unfortunately, you won't be able to in the case of Microsoft software -- your transactional documents will show that you are the licensee to use a copy, not the owner thereof.
Indeed, only crackers who attack "protected systems" (meaning.gov and.mil boxen - not the d00d who hax0rz the average web site) appear to be in line to get their asses handed to them on a silver platter under this Act, and those provisions I can support. (Hell, those are about the only provisions I'd support;-)
You are so wrong you can't believe it. The CFAA defines a "protected computer" to mean a computer that is used in interstate commerce. This means any computer connected to the internet or a modem.
I have litigated CFAA civil actions, and I am here to tell you that virtually ANY unauthorized access where virtually ANY valuable information is received, or where ANY valuable data is modified or changed is quite arguably sufficient to lay down a prima facie case.
I have represented parties in civil lawsuits where CFAA violations have been pleaded as counterclaims. I am here to tell you that the courts have treated virtually ANY alleged unauthorized access of a computer as a CFAA violation that will be likely to survive a motion to dismiss and summary judgment. It is, to me, chilling that such naked allegations as "he wasn't supposed to do that" could be sufficient to put an individual away for life.
No, they didn't. They moved forward and prosecuted the hell out of Microsoft, all the way up to and including obtaining an order to split up the company.
Clearly your position is grounded more in a kneejerk bias to defend the President, regardless of the merits, than an informed understanding of what is going on, or a valid criticism of the original posting.
Bottom line, the President is absolutely answerable for this (although it may well be the right thing to do from a legal perspective). Writing "state senators" can and will accomplish nothing.
First, the Department of Justice is an agency of the Executive Branch of Government, that is to say, they work for the President of the United States. John Ashcroft was appointed by, and serves at the pleasure of, the President. While he is sometimes granted autonomy as a matter of course, Ashcroft would take no position contrary to the wishes of the President. You may recall not too long ago, when Richard Nixon sought to have "independent counsel" Archibald Cox sacked -- two officers resigned office (or were asked to resign) rather than follow their boss' instructions. Only Robert Bork, one of the few remaining executives in DOJ who hadn't resigned, agreed to follow those instructions.
Now, just so you understand -- the Department of Justice are the lawyers for the United States Government. If they drop the case, the U.S. government will not proceed. Furthermore, and far more important, the House and the Senate have no constitutional authority to enforce any law against anyone (except a case for impeachment), presuming that, by "state senators," you meant the Senators representing your state in the Federal Senate. Your state senators wouldn't have much to say about anything -- except the cases brought by particular states -- and they would likewise be constrained under their respective state constitution separation of powers from acting against any company. You might write your governor, if you wanted to continue seeking structural relief, for all the good it will do you.
How can Ashcroft defend his tough-as-nails posture regarding alleged computer crime by a small-time russian company who threatens nobody, while refusing to pursue an in-the-bag conviction already won in part, of a notorious bad actor whose conduct will affect virtually every computer user on the planet?
Ashcroft's new motto: "We're tough on crime, except when they donated to our campaign fund."
Re:You are mistaken . . .
on
ACM vs. RIAA
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· Score: 2
So I think that the law is somewhat less cut-and-dried than you purport.
And just so I am not mistaken in my view. It is not only cut-and-dried as I purport -- it is my view that this question is a no-brainer slam-dunk no-chance play.
That being said, you seem to rely less on the merits than on the proposition that, "if 46 professors can sign a brief that makes an argument, that argument must at least have play." Don't be naive, as well as foolish. There isn't a meaningful constitutional argument that cannot be made. But there are huge differences between argumentst that are likely to win, and those that are not.
Odd, how EFF spends its energies on the First Amendment issues (as indeed, does most of the professor's brief). Perhaps they think they have a chance on that.
DMCA is probably not unconstitutional per se, but is likely to be constitutional as applied in the stupid injunction in Remierdes. And of course, as it concerns the questions in Felton, its even a better case if the court is willing to take it up on the merits.
But your argument, inviting THIS Supreme Court: (1) to hold that a commerce power cannot be exercised if inconsistent with the IP clause; (2) to hold that they can second-guess on grounds other than rational basis the decisions of the Congress; and (3) agree with the argument on the merits after determining they are allowed to legislate from the bench, well, keep fantasizing out loud. Just understand that you are making it easier for the friends of the DMCA by so doing, not harder.
Re:You are mistaken . . .
on
ACM vs. RIAA
·
· Score: 2
Yeah, I know -- I cited that brief in a sister thread. I clearly cannot force you to see reality, or to do the research and homework to see how hopeless is your position. There's a reason it was relegated to an Amicus brief, and not seriously pressed by the defendants (whose necks actually hinge upon whether or not they rely on winnable arguments) on appeal.
Perhaps the Supreme Court may take it up -- they certainly will have the chance to do so after the Second Circuit decides Remierdes. Wanna bet that the only constitutional issue even addressed beyond a paragraph will be the First Amendment? Wanna bet that the Court, if cert is denied, doesn't even whiff at the Congressional powers provision?
This is an argument that has lost every time it has been meaningfully raised in recent history. It wasn't even seriously weighed in the recent cases dealing with the term extension.
Rely on it. Live for it. Love it. Hug it. Hope for it. But don't bet your life on it. It is still a dumb argument on the merits, for reasons previously stated. It won't hold up, and there are serious challenges to the law that would be far more substantive and likely to make a change.
So, go ahead and spit into the wind -- tilt against windmills. But it is thought processes such as these that are the reason the DMCA opposition has so fragmented that there is no serious threat to RIAA's ponderous position.
Make no mistake -- I am as anti-DMCA as it comes. Its just that wasting energy on losing arguments is not my idea of sound politics.
The strongest argument I have seen for these types of arguments was made in the Law Professor's Brief in the DeCSS case. Similar arguments was also made below, but rejected by the District Court. Because almost all transactions using a computer use a network, the interstate commerce requirement is probably satisfied under the affectation doctrine, though the point you raise is a fair one.
Alas, the Second Circuit didn't seem remotely interested in these arguments, apart from the First Amendment issues.
You are mistaken . . .
on
ACM vs. RIAA
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· Score: 2
Your argument derives more from a rich fantasy life than from the law. The question has already been raised and dismissed without day by several courts.
There is no chance DMCA will be declared unconstitutional for lack of Congressional power to pass it. Its title and locus of codification are irrelevant, and the nature of the treaties it implements likewise. None.
All that the Court addresses in Article I cases is whether the Commerce clause empowers Congress to pass the law. Unless the statute is found not to address subject matter that does not affect interstate or international commerce, they will never read clause 8.
Further, the Article I, Section 8, clause 8 cases to date haven't provided much succor for your argument either. The Courts traditionally defer to Congressional policy decisions on such matters unless there is "no rational basis" for the Act. The test doesn't mean what you think it means -- no "rational basis," means, essentially, no credible articulable reason.
The unonstitutionality argument grounded in lack of authority under the Copyright Clause is, legally speaking, a nonstarter. Its already been tried, and lost. It will never work. Move on.
Re:I guess we all have our own agendas . . .
on
ACM vs. RIAA
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· Score: 2
It needn't be decided by the Supreme Court to obtain the relief you require. Any court can declare a law unconstitutional. Indeed, it is its duty to do so.
I guess we all have our own agendas . . .
on
ACM vs. RIAA
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· Score: 2
You don't like software patents. The ACM position is that DMCA is unconstitutional on First Amendment grounds. I'm not sure I see those positions as inherently coextensive.
A reasonable person might well adopt any of the at least four possible combinations of those views.
You have your agenda -- they have theirs.
Re:DMCA Does Not Depend on the Copyright Clause!
on
ACM vs. RIAA
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· Score: 2
Clarification -- Of course I meant "Copyright Clause" above, not "Copyright Act"
Slashdot Mirror
True, but I've read this one, and it is general enough to cover just about every Content Management System
Probably not, as the examiner records that he compared the claims against some fairly fundamental content management technology, including WEBDAV, BSCW, Zope and the Carolyn Kraut article on site-development tools.
The best way is to carefully study the claim and compare it, limitation by limitation against your technology-du-jour, but a review of the prosecution history would probably give you the quickest insight as to how the claim differs. Examiner shows some prior art, and the lawyer explains why it is patentably distinguishable -- those explanations limit the scope of any patent that might issue.
Believe it or not, every claim is written as a single sentence because it is required by regulation.
Look to the patent claim, which governs the scope of the patent grant. Understand that the meaning of that claim may depend upon many other things. And be cool -- most patents are much narrower than they seem to a lay reader.
. . . we are now in a position to turn the tabled on RIAA, using the USAA's overreaching revision of civil remedies for hacking.
Perhaps it is time to set up some serious MP3-baited honeypots, and just wait for RIAA to bury themselves?
I can think of nothing more useful to turn the tables on RIAA's currently pristine image in Congress (or at least to get Congress to re-think their ludicrous rewiring of criminal computer laws), than to show the unintended consequences of massive remedies for improper hacking.
The original definitions of hacker had nothing to do with computers. As applied to computer folks, RMS, Goldblatt and the rest of the MIT crew defined the archetype, per Steve Levy's book, "Hackers."
It wasn't until quite a bit later that the "other definition" joined in the fun, by all accounts I have seen. Certainly, I don't recall any authority for the proposition that unwarranted entry was an "original definition."
And who's definition of terrorist do we use?
Well, from now on, we're going to use the statutory definition, which includes those of us who violate Section 1030, as amended -- that is, those of us for whom another person alleges used a computer without authorization, or who exceeded authorized access.
Worse than the civil liberties hits, USAA is more dangerous for we programmers and technical people than you may ever have imagined.
If nothing else, calling attention to it earlier may have helped them in ealier litigation
Only if they had a crystal ball. Napster DID counterclaim for misuse, by the way, albeit on other grounds.
But your facts are way off. The agreement did not exist at the time of the preliminary injunction hearing, so it couldn't have been raised at the time. Facts not on the record (that is, not adduced in the earlier injunction proceedings) are not relevant to the appeal, which is what we have been watching the past 18-24 months.
It couldn't have helped them on appeal. It can only help them going forward. They will use this, and already have.
The American Family Association has significant representation on the City Counsel through one Bob Buckhorn, which is what gave rise to this matter. Representatives for the defendants, an able First Amendment attorney, raised the First Amendment issues, but the Court didn't reach them because the zoning ordinance itself was held to require that the entertainment not merely originate in, but also be received in, the alleged adult entertainment facility (hence the social impact).
Ultimately AFA Bob will probably rework the ordinance, the case will once again be tried and the defendants lose below, and the Eleventh Circuit will once again have the issue, but will ultimately have to face the (very interesting) First Amendment questions.
The Eleventh Circuit did not hold that the cyberspace conduct wasn't *in* Tampa, they merely held that a particular Tampa zoning ordinance prohibiting offering of adult entertainment to members of the public presumes that the customers physically attend the premises so zoned and wherein the entertainment is performed.
It isn't a very deep or fundamental observation about technology to suggest that a person at the other end of a communications line from a source location isn't physically located at the source. Saying that it is "in virtual space," wasn't really more meaningful than that, except in the case where the other guy is also in Tampa, albeit at a different place.
Because the statute itself didn't expressly address regulation of sources of publication, the Court didn't address the First Amendment issues.
The word, "Science," as used in the Patent and Copyright Clause, has nothing to do with "scientific research."
"Science" refers to the archaic meaning of literary technique, or, the "craft of writing." "Useful Arts" refers to patentable technology.
This is well-settled. No copyright is possible.
The Supreme Court held in Feist that the white pages do not meet the burden of originality, and therefore cannot be protected by Copyright.
Not. ProCD v. Zeidenberg.
First Sale is codified at 17 U.S.C. section 109. It is available, unfortunately for your theory, only to "the owner of a particular copy or phonorecord lawfully made under this title."
Show that you own title to the copy, and you're in. Merely being a "consumer," as you say, won't cut it. Unfortunately, you won't be able to in the case of Microsoft software -- your transactional documents will show that you are the licensee to use a copy, not the owner thereof.
Indeed, only crackers who attack "protected systems" (meaning .gov and .mil boxen - not the d00d who hax0rz the average web site) appear to be in line to get their asses handed to them on a silver platter under this Act, and those provisions I can support. (Hell, those are about the only provisions I'd support ;-)
You are so wrong you can't believe it. The CFAA defines a "protected computer" to mean a computer that is used in interstate commerce. This means any computer connected to the internet or a modem.
I have litigated CFAA civil actions, and I am here to tell you that virtually ANY unauthorized access where virtually ANY valuable information is received, or where ANY valuable data is modified or changed is quite arguably sufficient to lay down a prima facie case.
This bill is as bad as you first thought it was.
I have represented parties in civil lawsuits where CFAA violations have been pleaded as counterclaims. I am here to tell you that the courts have treated virtually ANY alleged unauthorized access of a computer as a CFAA violation that will be likely to survive a motion to dismiss and summary judgment. It is, to me, chilling that such naked allegations as "he wasn't supposed to do that" could be sufficient to put an individual away for life.
The Democrats would have done the same thing.
No, they didn't. They moved forward and prosecuted the hell out of Microsoft, all the way up to and including obtaining an order to split up the company.
The Republicans fired David Boies, and punted.
Clearly your position is grounded more in a kneejerk bias to defend the President, regardless of the merits, than an informed understanding of what is going on, or a valid criticism of the original posting.
Bottom line, the President is absolutely answerable for this (although it may well be the right thing to do from a legal perspective). Writing "state senators" can and will accomplish nothing.
First, the Department of Justice is an agency of the Executive Branch of Government, that is to say, they work for the President of the United States. John Ashcroft was appointed by, and serves at the pleasure of, the President. While he is sometimes granted autonomy as a matter of course, Ashcroft would take no position contrary to the wishes of the President. You may recall not too long ago, when Richard Nixon sought to have "independent counsel" Archibald Cox sacked -- two officers resigned office (or were asked to resign) rather than follow their boss' instructions. Only Robert Bork, one of the few remaining executives in DOJ who hadn't resigned, agreed to follow those instructions.
Now, just so you understand -- the Department of Justice are the lawyers for the United States Government. If they drop the case, the U.S. government will not proceed. Furthermore, and far more important, the House and the Senate have no constitutional authority to enforce any law against anyone (except a case for impeachment), presuming that, by "state senators," you meant the Senators representing your state in the Federal Senate. Your state senators wouldn't have much to say about anything -- except the cases brought by particular states -- and they would likewise be constrained under their respective state constitution separation of powers from acting against any company. You might write your governor, if you wanted to continue seeking structural relief, for all the good it will do you.
How can Ashcroft defend his tough-as-nails posture regarding alleged computer crime by a small-time russian company who threatens nobody, while refusing to pursue an in-the-bag conviction already won in part, of a notorious bad actor whose conduct will affect virtually every computer user on the planet?
Ashcroft's new motto: "We're tough on crime, except when they donated to our campaign fund."
So I think that the law is somewhat less cut-and-dried than you purport.
And just so I am not mistaken in my view. It is not only cut-and-dried as I purport -- it is my view that this question is a no-brainer slam-dunk no-chance play.
That being said, you seem to rely less on the merits than on the proposition that, "if 46 professors can sign a brief that makes an argument, that argument must at least have play." Don't be naive, as well as foolish. There isn't a meaningful constitutional argument that cannot be made. But there are huge differences between argumentst that are likely to win, and those that are not.
Odd, how EFF spends its energies on the First Amendment issues (as indeed, does most of the professor's brief). Perhaps they think they have a chance on that.
DMCA is probably not unconstitutional per se, but is likely to be constitutional as applied in the stupid injunction in Remierdes. And of course, as it concerns the questions in Felton, its even a better case if the court is willing to take it up on the merits.
But your argument, inviting THIS Supreme Court: (1) to hold that a commerce power cannot be exercised if inconsistent with the IP clause; (2) to hold that they can second-guess on grounds other than rational basis the decisions of the Congress; and (3) agree with the argument on the merits after determining they are allowed to legislate from the bench, well, keep fantasizing out loud. Just understand that you are making it easier for the friends of the DMCA by so doing, not harder.
Yeah, I know -- I cited that brief in a sister thread. I clearly cannot force you to see reality, or to do the research and homework to see how hopeless is your position. There's a reason it was relegated to an Amicus brief, and not seriously pressed by the defendants (whose necks actually hinge upon whether or not they rely on winnable arguments) on appeal.
Perhaps the Supreme Court may take it up -- they certainly will have the chance to do so after the Second Circuit decides Remierdes. Wanna bet that the only constitutional issue even addressed beyond a paragraph will be the First Amendment? Wanna bet that the Court, if cert is denied, doesn't even whiff at the Congressional powers provision?
This is an argument that has lost every time it has been meaningfully raised in recent history. It wasn't even seriously weighed in the recent cases dealing with the term extension.
Rely on it. Live for it. Love it. Hug it. Hope for it. But don't bet your life on it. It is still a dumb argument on the merits, for reasons previously stated. It won't hold up, and there are serious challenges to the law that would be far more substantive and likely to make a change.
So, go ahead and spit into the wind -- tilt against windmills. But it is thought processes such as these that are the reason the DMCA opposition has so fragmented that there is no serious threat to RIAA's ponderous position.
Make no mistake -- I am as anti-DMCA as it comes. Its just that wasting energy on losing arguments is not my idea of sound politics.
The strongest argument I have seen for these types of arguments was made in the Law Professor's Brief in the DeCSS case. Similar arguments was also made below, but rejected by the District Court. Because almost all transactions using a computer use a network, the interstate commerce requirement is probably satisfied under the affectation doctrine, though the point you raise is a fair one.
Alas, the Second Circuit didn't seem remotely interested in these arguments, apart from the First Amendment issues.
Your argument derives more from a rich fantasy life than from the law. The question has already been raised and dismissed without day by several courts.
There is no chance DMCA will be declared unconstitutional for lack of Congressional power to pass it. Its title and locus of codification are irrelevant, and the nature of the treaties it implements likewise. None.
All that the Court addresses in Article I cases is whether the Commerce clause empowers Congress to pass the law. Unless the statute is found not to address subject matter that does not affect interstate or international commerce, they will never read clause 8.
Further, the Article I, Section 8, clause 8 cases to date haven't provided much succor for your argument either. The Courts traditionally defer to Congressional policy decisions on such matters unless there is "no rational basis" for the Act. The test doesn't mean what you think it means -- no "rational basis," means, essentially, no credible articulable reason.
The unonstitutionality argument grounded in lack of authority under the Copyright Clause is, legally speaking, a nonstarter. Its already been tried, and lost. It will never work. Move on.
It needn't be decided by the Supreme Court to obtain the relief you require. Any court can declare a law unconstitutional. Indeed, it is its duty to do so.
You don't like software patents. The ACM position is that DMCA is unconstitutional on First Amendment grounds. I'm not sure I see those positions as inherently coextensive.
A reasonable person might well adopt any of the at least four possible combinations of those views.
You have your agenda -- they have theirs.
Clarification -- Of course I meant "Copyright Clause" above, not "Copyright Act"