Most crimes have both a factual component (actus reus) and a state of mind component (mens rea). The Mens Rea for a crime may be intent, knowledge, recklessness, negligence and at times (such as for statutory rape) strict liability.
In theory, a state of mind must be proved just as the factual elements, beyond a reasonable doubt. In practice, a jury is instructed by the judge that they may infer intent from any of the circumstances in which the crime was committed. Unless the defendant takes the stand in her own defense and convinces the jury to the contrary, and thereby submitting herself to a blistering cross-examination, the prosecutor will simply ask the jury to ask themselves any number of rhetorical questions.
Mens rea is a non-issue. With enough stuff on your disk, intent can be "proved" by twisting circumstantial evidence to the satisfaction of the jury. To a jury -- the mere fact of the trial is taking place evidences (which would not otherwise be admissible) the proposition that the government thinks the defendant is guilty.
"with intent" is better than strict liability. But in practice, its grievously dangerous. Anyone possessing tools is ultimately at the mercy of the whim of the authorities. The cost of a criminal defense (which no intelligent person, however good an advocate, should attempt to do by themselves) will never be compensable and can itself be more ruinous than any fine.
In short, this law an authoritarian nightmare -- it serves no good purpose, will actually chill productive anti-hacking technology.
Our mission against black hat hacking is problematic enough. The single best tool we have ever developed to keep hackers out is the openness with which techniques of hacking are discussed, and the sharing and free distribution of those tools.
Aside from the obvious difficulties in the application of the law, which invites unbalanced and unreasonable application by clueless authorities, the primary harm of this law is the obvious chilling effect that it will have on promoting the progress of anti-hacking technique.
It is only our prodding and poking at our own systems that keeps us as many steps as we are in front of (or behind) the hackers as we may be. Only by "standing on ye shoulders of giants," can we hope to adequately understand and to secure our present systems. If our giants are hidden or made contraband -- then we are left to the mercy of those who live in more (or less) enlightened societies.
In short, hackers have never had so good a friend as the Australian government. A nation disarmed for the picking by those who are not blinded by their own ignorance.
If we outlaw hacker tools, then only hackers shall have rootkits.
Steve Jackson has given many classical hackers years of joy. Metagaming, now SJG brought forth not only some of the most wonderful games, but also seminal ideas for game design. Ogre proved not only that a complex game (other than Chess) could be elegant, but he showed us how that could be done.
Perhaps all of we old farts are irrelevant today, but Steve's works inspired most of we early game designers, and I'd like to think that, in turn, we passed the torch that thereafter "stood on ye shoulders of giants"
Steve was such a giant. This is not only "news for nerds." Its also stuff that matters.
The July 1 deadline is solely for the financial institution. G-L-B permits you to opt out anytime, and requires the institution to comply. DO NOT ACCEPT any mealy-mouthed suggestion that your opt-out was untimely.
So, do not despair that you probably have already left half a dozen of your G-L-B notices on the floor.
Also, read the opt-out language carefully if you aren't writing your own. Some of these notices are "carefully" drafted to confuse you. "Yes" may mean "no," and so forth.
And, even though you CAN opt out later, make CERTAIN you opt-out ASAP.
The deal, made on the day before Federal Parliament goes into winter recess, means that in six months' time interactive gambling operators will not be able to enforce debts owed by Australians gambling on their sites."
Most gambling enterprises do not require a right of enforcement. They obtain a transfer of funds in the amount of the wager before the bet has been taken. Then, they "enforce" the debts themselves -- by moving funds in an offshore account they control, governed by foreign laws.
All the law will accomplish is to deny Australians gambling credit. Of course, even there, it is difficult to distinguish gambling credit from plain credit, when the loan is obtained independently from the wager -- thus, either the law will be ineffective, or the law will operate to make any credit to Australian nationals more risky.
Tasini was decided by the Second Circuit on identical grounds as affirmed by the Supreme Court in 98. (Everybody knew what the statute said long before that -- Substantive of the District Court opinion and prediction of reversal on appeal came out almost immediately).
The result was really a no-brainer, as the Supreme Court opinion showed. The only surprise to me was that the Supreme Court agreed to grant certiorari in the first place.
The issue wasn't whether the content would be made available, but only who would benefit from its being made available.
In short, the predictions made by the media folk in Tasini (utterly discounted by the high Court) were the same hysterical remarks made previously by the RIAA and the MPAA in their respective cases. Such rants get a jump out of District Court judges, it would appear, but at least one pair of courts seemed to be unimpressed in the face of a clear contract and a clear statute.
Well, I'm all for dreaming, but its gonna be a few years before the GeForce8 can do renderman in real time, but when we get there, Final Fantasy 21 is gonna rule.
My dream is that GeForce8 can make it unnecessary to discuss the quality of the game in the same sentence we discuss the quality of the graphics. For years now, we have seen one product after another try to top the preceding generation in terms of delivering beauty and graphic heat -- and yet it has been a long time since games have really done, IMHO, a great job of delivering fun.
This is not to say that twitch isn't fun -- or that pretty isn't interesting. Its just to say that I'm not sure that more more photorealism equates to great gaming.
But somehow, that "non-word" got into my dictionary as well. Its fun to make up ad-hoc rules, but they simply don't make for great argument.
Of course, this all remains non-sequitur to the issue of whether or not AIM is generic or unprotectible because it is an acronym. While it might raise interesting questions of mere descriptiveness for use with a rifle scope, tt is both non-generic and protectible, of course, for instant messaging.
AIM does have one other interesting attribute, however -- it's a common english word.
And one that would be generic for pie or flavors of fruit roll-ups. However, for computers, or for records, Apple is arbitrary and as strong as Xerox.
If I remember from high school, this alone limits the scope of the protection granted by the trademark.
Only if it describes the underlying goods and services. Even then, the mark is registrable and protectable if it has attained "acquired distinctiveness." Examples of acquired distinctiveness are "International Business Machines" and "Steak & Ale"
In practice, it remains unclear, at least from dictionary definitions, whether unpronouncable "words" are acronyms or abbreviations. Some distinguish based upon whether the thing is spelled out with periods, such as R.P.M. , while others determine, aparently as you do, by whether the thing is pronounced by its letters or by sounding it out. (Thus, HTML is an abbreviation in that model, but NASDAQ is an acronym.)
But this is not a distinction with a difference. There are myriad acronyms, as you are using the term, that are also strong trademarks. NASDAQ is one, NASCAR is another. Whether or not you consider IBM, NBC, ABC or GE to be acronyms, the point is the same.
Nah. Tasini is a highly technical case based solely upon a construction of a most obscure passage of the Copyright Act. The Supreme Court affirmed the (clearly correct) Second Circuit opinion, which simply read the statute to mean what it says. The media giants, simply couldn't believe that the Courts wouldn't give them what they wanted, notwithstanding the Act, just because they asked for it.
At the end of the day, the question is simply whether a right to the compilation copyright owned by a publisher gives any implied right to reprint and republish the underlying works that were compiled. The answer -- duh -- NO!
When we post on Slashdot, who owns the copyright on the posting?
What if you post text that is already covered by copyright (code, essay, etc).
Copyright in a work of authorship is owned by the author of the work, unless it is a work made for hire. Ownership in a copyright cannot be assigned without a writing. If you owned it when you wrote it, you own it now. There may be some implied licenses you have granted to readers -- much depends upon the facts and circumstances o f the publication.
What if you post text that is already covered by copyright (code, essay, etc).
If you do so, then you either engage in de minimus appropriation, fair use or copyright infringement.
Clearly AIM is not the genus. Instant Messaging, perhaps, but certainly not AIM.
IANAL but I thought that you could not trademark an acronym.
Of course you can trademark an acronym, sure as you can say International Business Machines, National Broadcasting Corporation, and General Electric.
AIM can stand for so many things, that their argument holds no water. (even when ignoring that the GAIM has been using the same name for two years) Off the top of my head, the alliance between Apple, IBM and Motorola was called the AIM alliance well before AOL Instant Messenger came out.
Right you are! Consider ABC, when used for a television network, a chain of pizzerias or for a chain of liquor stores. The IDENTICAL mark can be used for non-competing goods, and be very strong, even famous (not the legal term of art here) in their respective arenas.
This is the essence of likelihood of confusion. It is not just the designation, but the manner and purposes for which it is used that determines whether there is an infringement.
Of course, a wildly diluted acronym can be weakened by broad, shared use. And some acronyms might well become one and the same with their particular meaning. (A.I. for artificial intelligence, perhaps; maybe even IM for instant messaging.)
While there may be a host of technical issues militating to the contrary, AOL's case for seems fairly strong on the merits. Trademark rights are not created by registration, but by prior use. The purpose of registration is to give constructive (legal presumptive) notice to those who do not have actual notice of a trademark claim. The absence of a registration has no impact when the defendant had actual knowledge of the plaintiff's trademark use. None.
With all due respect to counsel for the defendants, likelihood of confusion appears to be a slam-dunk. The two names have substantially the same appearance, substantially the same sound and suggest essentially the same thing. The prepending of a "G" almost certainly does not change the sense in which the marks are tangibly similar. The two products do essentially the same thing, almost feature for feature.
Of course, likelihood of confusion is an intensely fact-based inquiry, based on many factors, some of which do not clearly militate for a plaintiff's verdict, so an advocate may be able to muddy things up.
I think the strongest argument for the defense is an acquiescence by AOL, permitting the use of GAIM for so long without taking action. Still, that's a tough row to hoe as well.
One thing to seriously consider -- why do we CARE what it is called? Find some pithy name and refer to it as the product that no longer sounds like and is unaffiliated with "AIM," and be done with it.
Name doesn't matter. Regardless of the formal names, for me, "G"-AIM was AIM for Gnome, as "J"-AIM was AIM in Java. I suspect many others took that association away with them as well. Whether or not AOL would win, I think this makes a very attractive case for a jury.
In short, this isn't a front worth fighting. Why let the other guys fight the good fight where they can win? Why not find a middle ground, get AOL to behave by saving them some legal fees and get some useful concessions on the other side.
Sun Tzu suggests fighting where the enemy is weakest. AOL seems to have this one right. Do we?
How can we honor both the first amendment and a right to privacy, to keep from being spammed? This really is quite easy, because of some of the inherent nature of spam.
The first amendment "right to contact me" is an illusion. No one has a right to contact me under applicable law, except in a traditional public forum. However, the government cannot, and should not be able to either: preclude speech on the internt, nor to impose an obligation to engage in speech of a particular type on the internet.
Most spam regulation is losing on at least one of these points. Either the spam regulation says that, because of the content of my spam, I cannot send it to you. Or the spam regulation says that, because of the content of my spam, I must send it to you with a message labelling it.
There is adequate authority, at least, to raise credible first amendment arguments in each case. Certainly enough to challenge legislation and slow down meaningful regulation.
BUT THERE IS A WAY TO DO THIS. Constitutionally, and effectively!
Instead of REQUIRING a label for spam, or BARRING the mailing of spam, simply make it a crime to MISREPRESENT how the message was sent.
First amendment law prohibits government regulation of truthful speech, but it CLEARLY permits regulation against false speech.
So we pass a law making it a crime to send spam designating the message as non-spam!
Why would that work? Because after that law is passed, we make it an internet convention to tag almost all mail as non-spam! If everyone does this, we can now filter for spam, at least the spam that is sent by people who are concerned about violating the law.
I'm working on a white paper now to spell out the details. And there are quite a few details. But the gist of this works.
Of course, it doesn't stop the traffic, at some level. On the other hand, it DOES stop the incentive to spam, and thereby allows stopping it at significant choke points.
And all it requires is the will of the net infrastructure to label non-spam as non-spam -- a process that can be made automatic and virtually trivial.
[GPLd software] "makes it impossible for a commercial company to use any of that work or build on any of that work."
I wonder if Bill Gates has heard of Mac OS X?
The BSD open source license didn't stop Apple from putting a proprietary GUI on top of an open source foundation.
Quite. Bill was criticizing GPL, not open source generally. BSD expressly PERMITS a corporation to build upon, and even take completely private, the open source works. Note that Apple's re-release of Darwin was not under BSD, but rather the APSL, which is a far more restrictive license -- precisely so competitors such as Microsoft could not leverage its derivations without sharing its results. In this way, Apple gets to control which of MacOSX it wishes to keep private (Quartz/etc) and which it wishes to be more public (Darwin).
Viral licensing is very beneficial to a corporation that is issuing open source, and not so beneficial to the company that wishes to build upon it.
This, I believe, was Bill Gates' point. If so, he's probably not miles wrong.
Get a palm if you want an organizer. Get an iPaq if you want a computer.
The issue is nicely focused here. As a full-fledged development machine, the iPaq sucks. For most full-scale application work, the iPaq sucks. So do most desktops for that matter.
iPaq is more of a computer than a Palm, of course. But the question then is whether you need a computer at your palm.
So, its like this. When I need to do my organization and routine clicking to add numbers, the palm and iPaq perform about as well, and are both equally convenient at my palm. When I need to use a computer, the iPaq performs better than the palm, but both perform equally poorly. I would far prefer to use a computer, and don't usually need it at my palm.
In this sense, iPaq seems like too much and not enough.
Well before the coinage of "typosquatting," companies have been "registering" misdialings of 800 numbers to obtain business, particularly messing with the zero-oh and 1-i typos. Under traditional rules, much depends upon how the typo is used, whether or not the conduct is actionable. To use the number to get initial customers without misleading them has been treated as OK, but to get the customer who thinks he is reserving a Holiday Inn resort, but is actually getting some free dive room in the same viscinity would be nasty.
There was a sixth circuit case involving the use of 1-800-H-zero-LIDAY and 1-800-HOL-one-DAY for hotel reservations, when the customer was immediately notified that this was a budget, low-end reservation facility unrelated to HOLIDAY INNS. The sixth circuit held in that case that Holiday Inn lost.
I haven't read the Third Circuit opinion, but it will be interesting to contrast the two results.
Godwin's law, indeed. Remarks such as that --including the insistance that it is "legitimate" to suggest the USPTO compliance with the United States Patent Act somehow corresponds or can even be related to the Holocaust-- evidence the absence of seriousness with which some people treat the argument.
Such offensive comments, and mindless adherence to a conclusion regardless of the merits, only lead to further marginalization of the anti-patent movement. You should be ashamed of yourself.
Copyright protects expressions of ideas, not ideas themselves. Through a process known as "clean rooming," Microsoft, or anyone else for that matter, can effectively produce their own code based upon the algorithms embodied in any GPL code.
This isn't reciprocally true, by the way. To the extent that Microsoft relies upon patents and retains trade secrets and ownership to the title of copies of their program, Microsoft may well be able to stop effective reverse engineering or clean rooming. (And this has nothing to do with UCITA, BTW -- these protections existed under applicable IP laws, the common law and the UCC.)
If you say so. Meanwhile, the ABA operates --as do most organizations with disparate deliberative subcommittees-- within its charter and under its own rules, not the ones you set forth for them.
It seems far more likely that rather than taking a vote at the annual meeting, the motion would be brought to the floor, the jurisdictional problem noted, and then referred to the appropriate section or committee, probably the Computer Law of Business Law folks.
My point was not whether or not, in fact, Insurance Section should propose computer law legislation in lieu of the Computer Law Section or the Business Law Section. Rather, I was pointing out that, in fact, they might not be able to do so -- suggesting that the article's ambitious statement that this vote was imminent seemed, at least to me, uninformed.
The article says the Insurance Section is leading this charge. I wonder whether the Computer Law Section has taken a position, and if so, whether there is some confusion in the craft?
In short, I'm not sure that a position espoused by one section led by an Insurance lawyer is "likely" to be adopted by the ABA, particularly when there are other sections with clear jurisdiction over the subject matter. (I have no idea what the CLS is doing on this point, but given my experience, they are probably mostly the same people who were working the NCCUSL on UCITA in the first place).
Time will tell. I'm just a little surprised the article didn't even notice the issue.
Slashdot Mirror
Most crimes have both a factual component (actus reus) and a state of mind component (mens rea). The Mens Rea for a crime may be intent, knowledge, recklessness, negligence and at times (such as for statutory rape) strict liability.
In theory, a state of mind must be proved just as the factual elements, beyond a reasonable doubt. In practice, a jury is instructed by the judge that they may infer intent from any of the circumstances in which the crime was committed. Unless the defendant takes the stand in her own defense and convinces the jury to the contrary, and thereby submitting herself to a blistering cross-examination, the prosecutor will simply ask the jury to ask themselves any number of rhetorical questions.
Mens rea is a non-issue. With enough stuff on your disk, intent can be "proved" by twisting circumstantial evidence to the satisfaction of the jury. To a jury -- the mere fact of the trial is taking place evidences (which would not otherwise be admissible) the proposition that the government thinks the defendant is guilty.
"with intent" is better than strict liability. But in practice, its grievously dangerous. Anyone possessing tools is ultimately at the mercy of the whim of the authorities. The cost of a criminal defense (which no intelligent person, however good an advocate, should attempt to do by themselves) will never be compensable and can itself be more ruinous than any fine.
In short, this law an authoritarian nightmare -- it serves no good purpose, will actually chill productive anti-hacking technology.
Our mission against black hat hacking is problematic enough. The single best tool we have ever developed to keep hackers out is the openness with which techniques of hacking are discussed, and the sharing and free distribution of those tools.
Aside from the obvious difficulties in the application of the law, which invites unbalanced and unreasonable application by clueless authorities, the primary harm of this law is the obvious chilling effect that it will have on promoting the progress of anti-hacking technique.
It is only our prodding and poking at our own systems that keeps us as many steps as we are in front of (or behind) the hackers as we may be. Only by "standing on ye shoulders of giants," can we hope to adequately understand and to secure our present systems. If our giants are hidden or made contraband -- then we are left to the mercy of those who live in more (or less) enlightened societies.
In short, hackers have never had so good a friend as the Australian government. A nation disarmed for the picking by those who are not blinded by their own ignorance.
If we outlaw hacker tools, then only hackers shall have rootkits.
Steve Jackson has given many classical hackers years of joy. Metagaming, now SJG brought forth not only some of the most wonderful games, but also seminal ideas for game design. Ogre proved not only that a complex game (other than Chess) could be elegant, but he showed us how that could be done.
Perhaps all of we old farts are irrelevant today, but Steve's works inspired most of we early game designers, and I'd like to think that, in turn, we passed the torch that thereafter "stood on ye shoulders of giants"
Steve was such a giant. This is not only "news for nerds." Its also stuff that matters.
The July 1 deadline is solely for the financial institution. G-L-B permits you to opt out anytime, and requires the institution to comply. DO NOT ACCEPT any mealy-mouthed suggestion that your opt-out was untimely.
So, do not despair that you probably have already left half a dozen of your G-L-B notices on the floor.
Also, read the opt-out language carefully if you aren't writing your own. Some of these notices are "carefully" drafted to confuse you. "Yes" may mean "no," and so forth.
And, even though you CAN opt out later, make CERTAIN you opt-out ASAP.
The deal, made on the day before Federal Parliament goes into winter recess, means that in six months' time interactive gambling operators will not be able to enforce debts owed by Australians gambling on their sites."
Most gambling enterprises do not require a right of enforcement. They obtain a transfer of funds in the amount of the wager before the bet has been taken. Then, they "enforce" the debts themselves -- by moving funds in an offshore account they control, governed by foreign laws.
All the law will accomplish is to deny Australians gambling credit. Of course, even there, it is difficult to distinguish gambling credit from plain credit, when the loan is obtained independently from the wager -- thus, either the law will be ineffective, or the law will operate to make any credit to Australian nationals more risky.
DOJ can let microsoft go, but there are co-plaintiffs! The states.
absolutely correct at to monopolizing, but not as to tying, which was remanded for finding in view of the new rule.
The lower court (not Thomas Penfield Jackson) may decide that MS should be broken up anyways.
Or the lower court may decide that the Findings of Fact do not support judgement of liability at all.
Tasini was decided by the Second Circuit on identical grounds as affirmed by the Supreme Court in 98. (Everybody knew what the statute said long before that -- Substantive of the District Court opinion and prediction of reversal on appeal came out almost immediately).
The result was really a no-brainer, as the Supreme Court opinion showed. The only surprise to me was that the Supreme Court agreed to grant certiorari in the first place.
The issue wasn't whether the content would be made available, but only who would benefit from its being made available.
In short, the predictions made by the media folk in Tasini (utterly discounted by the high Court) were the same hysterical remarks made previously by the RIAA and the MPAA in their respective cases. Such rants get a jump out of District Court judges, it would appear, but at least one pair of courts seemed to be unimpressed in the face of a clear contract and a clear statute.
Well, I'm all for dreaming, but its gonna be a few years before the GeForce8 can do renderman in real time, but when we get there, Final Fantasy 21 is gonna rule.
My dream is that GeForce8 can make it unnecessary to discuss the quality of the game in the same sentence we discuss the quality of the graphics. For years now, we have seen one product after another try to top the preceding generation in terms of delivering beauty and graphic heat -- and yet it has been a long time since games have really done, IMHO, a great job of delivering fun.
This is not to say that twitch isn't fun -- or that pretty isn't interesting. Its just to say that I'm not sure that more more photorealism equates to great gaming.
But somehow, that "non-word" got into my dictionary as well. Its fun to make up ad-hoc rules, but they simply don't make for great argument.
Of course, this all remains non-sequitur to the issue of whether or not AIM is generic or unprotectible because it is an acronym. While it might raise interesting questions of mere descriptiveness for use with a rifle scope, tt is both non-generic and protectible, of course, for instant messaging.
AIM does have one other interesting attribute, however -- it's a common english word.
And one that would be generic for pie or flavors of fruit roll-ups. However, for computers, or for records, Apple is arbitrary and as strong as Xerox.
If I remember from high school, this alone limits the scope of the protection granted by the trademark.
Only if it describes the underlying goods and services. Even then, the mark is registrable and protectable if it has attained "acquired distinctiveness." Examples of acquired distinctiveness are "International Business Machines" and "Steak & Ale"
In practice, it remains unclear, at least from dictionary definitions, whether unpronouncable "words" are acronyms or abbreviations. Some distinguish based upon whether the thing is spelled out with periods, such as R.P.M. , while others determine, aparently as you do, by whether the thing is pronounced by its letters or by sounding it out. (Thus, HTML is an abbreviation in that model, but NASDAQ is an acronym.)
But this is not a distinction with a difference. There are myriad acronyms, as you are using the term, that are also strong trademarks. NASDAQ is one, NASCAR is another. Whether or not you consider IBM, NBC, ABC or GE to be acronyms, the point is the same.
Give it up. AIM isn't generic. Not close.
Seriously, this does raise a valid issue.
Nah. Tasini is a highly technical case based solely upon a construction of a most obscure passage of the Copyright Act. The Supreme Court affirmed the (clearly correct) Second Circuit opinion, which simply read the statute to mean what it says. The media giants, simply couldn't believe that the Courts wouldn't give them what they wanted, notwithstanding the Act, just because they asked for it.
At the end of the day, the question is simply whether a right to the compilation copyright owned by a publisher gives any implied right to reprint and republish the underlying works that were compiled. The answer -- duh -- NO!
When we post on Slashdot, who owns the copyright on the posting?
What if you post text that is already covered by copyright (code, essay, etc).
Copyright in a work of authorship is owned by the author of the work, unless it is a work made for hire. Ownership in a copyright cannot be assigned without a writing. If you owned it when you wrote it, you own it now. There may be some implied licenses you have granted to readers -- much depends upon the facts and circumstances o f the publication.
What if you post text that is already covered by copyright (code, essay, etc).
If you do so, then you either engage in de minimus appropriation, fair use or copyright infringement.
Clearly AIM is not the genus. Instant Messaging, perhaps, but certainly not AIM.
IANAL but I thought that you could not trademark an acronym.
Of course you can trademark an acronym, sure as you can say International Business Machines, National Broadcasting Corporation, and General Electric.
AIM can stand for so many things, that their argument holds no water. (even when ignoring that the GAIM has been using the same name for two years) Off the top of my head, the alliance between Apple, IBM and Motorola was called the AIM alliance well before AOL Instant Messenger came out.
Right you are! Consider ABC, when used for a television network, a chain of pizzerias or for a chain of liquor stores. The IDENTICAL mark can be used for non-competing goods, and be very strong, even famous (not the legal term of art here) in their respective arenas.
This is the essence of likelihood of confusion. It is not just the designation, but the manner and purposes for which it is used that determines whether there is an infringement.
Of course, a wildly diluted acronym can be weakened by broad, shared use. And some acronyms might well become one and the same with their particular meaning. (A.I. for artificial intelligence, perhaps; maybe even IM for instant messaging.)
While there may be a host of technical issues militating to the contrary, AOL's case for seems fairly strong on the merits. Trademark rights are not created by registration, but by prior use. The purpose of registration is to give constructive (legal presumptive) notice to those who do not have actual notice of a trademark claim. The absence of a registration has no impact when the defendant had actual knowledge of the plaintiff's trademark use. None.
With all due respect to counsel for the defendants, likelihood of confusion appears to be a slam-dunk. The two names have substantially the same appearance, substantially the same sound and suggest essentially the same thing. The prepending of a "G" almost certainly does not change the sense in which the marks are tangibly similar. The two products do essentially the same thing, almost feature for feature.
Of course, likelihood of confusion is an intensely fact-based inquiry, based on many factors, some of which do not clearly militate for a plaintiff's verdict, so an advocate may be able to muddy things up.
I think the strongest argument for the defense is an acquiescence by AOL, permitting the use of GAIM for so long without taking action. Still, that's a tough row to hoe as well.
One thing to seriously consider -- why do we CARE what it is called? Find some pithy name and refer to it as the product that no longer sounds like and is unaffiliated with "AIM," and be done with it.
Name doesn't matter. Regardless of the formal names, for me, "G"-AIM was AIM for Gnome, as "J"-AIM was AIM in Java. I suspect many others took that association away with them as well. Whether or not AOL would win, I think this makes a very attractive case for a jury.
In short, this isn't a front worth fighting. Why let the other guys fight the good fight where they can win? Why not find a middle ground, get AOL to behave by saving them some legal fees and get some useful concessions on the other side.
Sun Tzu suggests fighting where the enemy is weakest. AOL seems to have this one right. Do we?
How can we honor both the first amendment and a right to privacy, to keep from being spammed? This really is quite easy, because of some of the inherent nature of spam.
The first amendment "right to contact me" is an illusion. No one has a right to contact me under applicable law, except in a traditional public forum. However, the government cannot, and should not be able to either: preclude speech on the internt, nor to impose an obligation to engage in speech of a particular type on the internet.
Most spam regulation is losing on at least one of these points. Either the spam regulation says that, because of the content of my spam, I cannot send it to you. Or the spam regulation says that, because of the content of my spam, I must send it to you with a message labelling it.
There is adequate authority, at least, to raise credible first amendment arguments in each case. Certainly enough to challenge legislation and slow down meaningful regulation.
BUT THERE IS A WAY TO DO THIS. Constitutionally, and effectively!
Instead of REQUIRING a label for spam, or BARRING the mailing of spam, simply make it a crime to MISREPRESENT how the message was sent.
First amendment law prohibits government regulation of truthful speech, but it CLEARLY permits regulation against false speech.
So we pass a law making it a crime to send spam designating the message as non-spam!
Why would that work? Because after that law is passed, we make it an internet convention to tag almost all mail as non-spam! If everyone does this, we can now filter for spam, at least the spam that is sent by people who are concerned about violating the law.
I'm working on a white paper now to spell out the details. And there are quite a few details. But the gist of this works.
Of course, it doesn't stop the traffic, at some level. On the other hand, it DOES stop the incentive to spam, and thereby allows stopping it at significant choke points.
And all it requires is the will of the net infrastructure to label non-spam as non-spam -- a process that can be made automatic and virtually trivial.
[GPLd software] "makes it impossible for a commercial company to use any of that work or build on any of that work."
I wonder if Bill Gates has heard of Mac OS X?
The BSD open source license didn't stop Apple from putting a proprietary GUI on top of an open source foundation.
Quite. Bill was criticizing GPL, not open source generally. BSD expressly PERMITS a corporation to build upon, and even take completely private, the open source works. Note that Apple's re-release of Darwin was not under BSD, but rather the APSL, which is a far more restrictive license -- precisely so competitors such as Microsoft could not leverage its derivations without sharing its results. In this way, Apple gets to control which of MacOSX it wishes to keep private (Quartz/etc) and which it wishes to be more public (Darwin).
Viral licensing is very beneficial to a corporation that is issuing open source, and not so beneficial to the company that wishes to build upon it.
This, I believe, was Bill Gates' point. If so, he's probably not miles wrong.
yet I don't recall any action in court against MCI
Perhaps because "OPERATOR" for operators is generic?
Get a palm if you want an organizer. Get an iPaq if you want a computer.
The issue is nicely focused here. As a full-fledged development machine, the iPaq sucks. For most full-scale application work, the iPaq sucks. So do most desktops for that matter.
iPaq is more of a computer than a Palm, of course. But the question then is whether you need a computer at your palm.
So, its like this. When I need to do my organization and routine clicking to add numbers, the palm and iPaq perform about as well, and are both equally convenient at my palm. When I need to use a computer, the iPaq performs better than the palm, but both perform equally poorly. I would far prefer to use a computer, and don't usually need it at my palm.
In this sense, iPaq seems like too much and not enough.
Well before the coinage of "typosquatting," companies have been "registering" misdialings of 800 numbers to obtain business, particularly messing with the zero-oh and 1-i typos. Under traditional rules, much depends upon how the typo is used, whether or not the conduct is actionable. To use the number to get initial customers without misleading them has been treated as OK, but to get the customer who thinks he is reserving a Holiday Inn resort, but is actually getting some free dive room in the same viscinity would be nasty.
There was a sixth circuit case involving the use of 1-800-H-zero-LIDAY and 1-800-HOL-one-DAY for hotel reservations, when the customer was immediately notified that this was a budget, low-end reservation facility unrelated to HOLIDAY INNS. The sixth circuit held in that case that Holiday Inn lost.
I haven't read the Third Circuit opinion, but it will be interesting to contrast the two results.
Godwin's law, indeed. Remarks such as that --including the insistance that it is "legitimate" to suggest the USPTO compliance with the United States Patent Act somehow corresponds or can even be related to the Holocaust-- evidence the absence of seriousness with which some people treat the argument.
Such offensive comments, and mindless adherence to a conclusion regardless of the merits, only lead to further marginalization of the anti-patent movement. You should be ashamed of yourself.
I hope this isn't true.
Copyright protects expressions of ideas, not ideas themselves. Through a process known as "clean rooming," Microsoft, or anyone else for that matter, can effectively produce their own code based upon the algorithms embodied in any GPL code.
This isn't reciprocally true, by the way. To the extent that Microsoft relies upon patents and retains trade secrets and ownership to the title of copies of their program, Microsoft may well be able to stop effective reverse engineering or clean rooming. (And this has nothing to do with UCITA, BTW -- these protections existed under applicable IP laws, the common law and the UCC.)
If you say so. Meanwhile, the ABA operates --as do most organizations with disparate deliberative subcommittees-- within its charter and under its own rules, not the ones you set forth for them.
It seems far more likely that rather than taking a vote at the annual meeting, the motion would be brought to the floor, the jurisdictional problem noted, and then referred to the appropriate section or committee, probably the Computer Law of Business Law folks.
My point was not whether or not, in fact, Insurance Section should propose computer law legislation in lieu of the Computer Law Section or the Business Law Section. Rather, I was pointing out that, in fact, they might not be able to do so -- suggesting that the article's ambitious statement that this vote was imminent seemed, at least to me, uninformed.
The article says the Insurance Section is leading this charge. I wonder whether the Computer Law Section has taken a position, and if so, whether there is some confusion in the craft?
In short, I'm not sure that a position espoused by one section led by an Insurance lawyer is "likely" to be adopted by the ABA, particularly when there are other sections with clear jurisdiction over the subject matter. (I have no idea what the CLS is doing on this point, but given my experience, they are probably mostly the same people who were working the NCCUSL on UCITA in the first place).
Time will tell. I'm just a little surprised the article didn't even notice the issue.