Period. Without passing upon the merits of your solution, they are irrelevant to the question at hand. Entirely.
The USPTO has no authority to change the term of the patents they issue. None. That is set forth in the Patent Act, and is not subject to interpretation by the USPTO.
. . . any response to a request for comments about databases addressing the subject matter for patentability would be taken seriously at all?
Look, the USPTO has absolutely no say at all as to the scope of patentable subject matter. None, nada bupkis. Zero.
The United States Patent Act provides in Sections 101, 102 and 103 the criteria for patentability, and the USPTO has no authority to deviate from that. Not one inch. Nor are they given authority to interpret the statutes independently of the United States Judiciary.
The only time they deviated from statutory requirements recently, regarding examination of means plus function language, the Commissioner had his a** handed to him in an unequivocal swat on the derriere.
So, give these guys a break. They don't decide whether or not to examine software patents -- their only rule they applied (it was a no software patent rule!) was held improper in the Supreme Court case of Diamond v. Diehr.
The Supreme Court and Federal Circuit have spoken, and theirs is the authoritative decision. The only way they can be overruled is by an act of Congress.
So leave these poor bureaucrats alone. Your remarks about the propriety of granting software patents will AND SHOULD fall on deaf ears there.
On the other hand, if you were inclined to do something usful or constructive, you could help them out by proposing decent databases from which to examine present applications, and thereby improving the quality of examination.
Scalia is far from a "strict constructionist." (A notion associated more with the jurisprudence of Bork and, to some extent, Thomas than Scalia). Indeed, he expressly eschews notions such as original intent and congressional intent -- the doctrinal view (euphemism for how he explains how he reaches some, but not all of his results -- same deal with the left by the way) is called textualism, whereby he presumes that text plainly resolves all questions, and that it is an anathema to pierce beyond the text to the "intent" of the author of a statute. (OT, but for completeness, Rhenquist's views seem to me to be neither originalist nor textualist, but rather statist in nature.)
At any rate, while I agree that Scalia has been somewhat solicitous of first amendment issues (textualism really doesn't permit much messing around with "Congress shall make no law . .."; Bork can do some things here Scalia simply can't), his record on the Fourth Amendment is abysmal. Since his term on the Court, he has virtually made the Fourth Amendment an obscure exception. This case is remarkable in view of this, and I look forward to carefully studying it.
Too often these days we see those who are empowered in our society, either by money, political or social position, seeking further extensions of that power. The law, it seems, wasn't enough.
The RIAA and MPAA were tremendously well-protected under the Copyright Act, without more. But that was not enough. Dissatisfied with the existing provisions of the Act, carefully negotiated by careful balancing of public policies, they went for the raw power-grab, and obtained rights in gross through the MPAA, making it a crime and actionable to circumvent copyright protection technology, even when the technology circumvention does not give rise to an infringement.
Likewise with trademarks, the AntiCybersquatting Act and trademark dilution.
Likewise here, with the proposed "don't peek" provisions. Again, the Congress carefully drafted (well, its a mess, but its what they gave us) the Computer Fraud and Abuse Act and the Electronic Communications Protection Act, with all its powers and limitations, to prevent certain kinds, but not all kinds, of hackery. Congress expressly limited de minimus impositions costing less than $5,000 per year, such as pings, from the CFAA, precisely to protect overreaching machine-owners and, if you will, "to permit the spice to flow" as internet technologies develop.
But the powers that be are always seeking yet another way. We no longer need the CFAA, with all of its policy-balancing limitations and exceptions. Instead, let's just make it illegal to ping, if I'm powerful enough to sue your patents off, and watch you squirm under the power of my legal sledgehammer.
This is, simply put, the wrong thing to do. If we are going to empower people to protect legitimate interests, we must carefully carve out the abuse of that power to protect other interests; and make it cost the nasty plaintiffs when they lose.
I do not condone computer crime, and portscanning is a blight upon mine eyes. But we shouldn't make it criminal or actionable when it doesn't rise to the level of meaningful denial of service, and we should wait until a computer crime is actually committed before we go after someone for a computer crime.
Otherwise, we simply empower the powerful to prey upon the weak. That will always happen, of course as a force of nature -- but we needn't write it into the law.
It is time to STOP changing the law to circumvent public policy, just to appease the few powerful enough to lobby the Congress. Yes, this sounds good, and the argument of the article, while not persuasive, cannot be ignored without reasoned comment. But it is bad for the net, and it is bad for America. We don't need to arrest woeful pingers, just because it would facilitate catching a few real bad guys who are otherwise slipping through the cracks.
With all due respect, you appear to be relying upon the assertion of a non-legal academic in Croatia's view of United States law. I would prefer, instead, to rely upon the findings of the United States Court for the Federal Circuit, which has exclusive jurisdiction on such questions.
It is one thing to say that a patent is valid, it is another to determine whether it is so. It is one thing to say that the scope of a patent covers an algorithm, it is another to actually construe the claims to see that it does.
In short, United States Patent law is substantially more subtle than the average engineer's view of the subject. It is well-settled law that you cannot own a valid patent on a pure mathematical algorithm (with the caveats noted in my original post).
Someone who says differently is just selling something -- either overselling a patent he owns, or overselling a criticism of the patent system.
Although I am both an accomplished software engineer, programmer and patent lawyer, I'm just reporting my own study of the applicable law. Responsible readers should decide for themselves what is, the truth. But only after reading the primary source matter: the Patent Act and the relevant cases. (State Street Bank and the AT&T v. Excel cases are great places to start -- those would be the strongest from which I might argue your position if I had to do so. I suggest you review them and then consider how I might respond to that argument!)
If you are correct that the patent to which you refer claims a mathematical algorithm as an abstract idea, then you are, by definition, incorrect that it is valid.
The fact that an invalid patent had not yet been judicially declared invalid or subjected to reexamination has no bearing on whether the patent is, in fact, valid.
If you want to get into specifics, feel free to e-mail me and we can discuss the details of this particular patent off-line.
This is a fine point, in practice, but a significant one at the end of the day. Notwithstanding the Federal Circuit's results in State Street Bank and AT&T v. Excel, it remains well-settled that you cannot patent a formula, mathematical algorithm or a law of nature. Each of these cases reaffirms this general principal of law.
That being said, it is likewise well-settled that the mere appearance or recitation of a formula, mathematical algorithm or law of nature in a patent claim does not invalidate the claim. What you can patent is a concrete application of these abstract ideas.
A patent directed to a novel catapult (assuming there were none in the prior art for the purpose of this example) can be described as a method for projecting massive objects through space with a parabolic trajectory. However, to be patentable, the claims must be directed to both the structure of the solution (the steps) and the context in which they are applied. A mere recitation of a method of using an inverse square law of physics would fail.
This is a fine point, of course -- good coverage can be obtained in practice going to the essence of the commercial benefit of a formula or law of physics. But the fact of the matter is that you can't patent math, even here in the United States of America.
Jon argues that a statute limiting the public play of video games is blatantly unconstitutional in view of the First Amendment. I agree that this law would be the worst kind of public policy and should never be adopted. However, as far as his lawyering goes, he might want to keep his day job.
Perhaps Jon ought to research the case law, for example, concerning zoning of adult book stores --displays of public lewdness -- and laws governing legal assault.
There is a long and well-developed body of law supporting laws that limit the scope of where or when one can publicly display certain kinds of content that is not itself contraband. (Constitutional obscenity can be banned completely, of course, but almost nothing satisfies the requirements of being constitutionally obscene).
Of course the particular text of this particular statute may have been too broadly written to fall within the intermediate scrutiny given such laws, or too content-driven in nature to survive strict scrutiny. But between you and me, I would need to do quite a bit of research before I could conclude to a certainty that any bill fitting Jon's description would be unconstitutional on First Amendment grounds.
It was not so long ago that we were ridiculing authors of postings for asserting their copyright in public postings; and ridiculing participants in disputes for suing one another for defamation. First amendment uber alles, we said.
All Google seems to be demanding here is the utterly reasonable proposition that, if you use their systems, you can't sue them for using the fruits of that use. True, you can't post there and then keep them from incorporating your posts in a book. Your solution? Don't post there.
Why is that unreasonable?
Seriously, it seems like we are taking highly inconsistent positions these days, depending more upon whose ok is gored than upon the merits or principles at hand.
but its not their way. I cannot imagine that any firm supporter of the Third Circuit result would vote to grant Certiorari (particularly Ginsburg and Breyer), for there is always the risk of a 5-4 change of course on this panel. Even if the moderates would support affirming on this case, the particular set of moderates would be anal-retentive about not taking up a case for the purpose of repeating what they had already said.
On the other hand, nobody could make a decent living predicting the whys and wherefores of the Court. At the end of the day, you might be right after all. Regrettably, I tend to doubt it. I anticipate it to be a close 5-4 opinion, with fairly moderate language being a necessary precondition to keep the coalition together.
Since Reno was as stinging and wide-open an opinion as it gets, I can't see this result yielding any good.
The best we can hope for is for the Court after briefing to dismiss the case for certirorari improvidently granted.
Agreed 100% with everything except the free speech issue. Scalia has surprised me repeatedly with a fairly hard-line pro-speech view despite his anal-retentive conservatism. Indeed, the free speech cases seem to account for a substantial portion of the times he voted opposite Thomas and Rhenquist. Romer, of course, isn't a first amendment case. Further, his extracurricular writings show a strongly solicitous view of freedom of speech. (Of course, sometimes these views seemed cynically designed to support other policy issues, such as his dissent in the abortion clinic protest cases and in the hate speech cases).
In Reno, Scalia went with the majority (surprisingly, as did Thomas, BTW).
I wouldn't count Scalia out from the side of the first amendment, however, I believe that the Thomas/Rhenquist/O'Connor/Kennedy were the foursome voting to take up the case. For this reason, I believe that Scalia may well swing this opinion.
This insightful reply points up the counterpoint to the obviously overreaching observations that I made -- in part, to make the point. I agree that a sucky game (in some measures) will ultimately kill a community. But the "game" I was referring to as unimportant deals with issues like "way-cool graphics," "size of the world," "presentation of plot and story," and "detailed physics." These things don't matter.
What matters is that the game be "deep" enough to sustain a long-lasting relationship with the players. Chess is a deep enough game. Tic-tac-toe is not. War in the East was a deep enough game, but way too complex to permit decent interaction. Moving from board games to story-telling, I note that the biggest, most important traits of a game design be this:
1) It not impede player-player interaction, and affirmatively encourages and rewards it;
2) It's mechanics are simple and malleable, so to permit evolution with the needs of the community;
3) It's game balance, particularly the issue of clarity v. depth, be as close to perfect as possible, and that the game evolve in accordance with (2) driven by this concern over all. No additions to the game should be made without focusing on this point.
The archetypal best repeatable multi-player game, combining Depth and Clarity, is a game akin to Diplomacy. The archetypal games for role-playing are the real-time, real-space games, such as those outlined at larpa's web site.
These games focus on the interaction and gaming experience more than on the game itself. Technology *IS* a serious impediment -- it gets in the way of the people-people communications. THIS is the key technological challenge of a networked multi-player computer game, not the game design or the prettiness of the screen. It gets even trickier for a massively multi-player game, however technology provides some WONDERFUL solutions to that problem -- I just have yet to see that done, let alone done well.
Anyway -- it is this challenge that makes the differences at the end of the day, not the packaging. Packaging gets folks in the door, but it isn't enough, not by a far cry. Gaming does require a game, but I will tell you this: a solid, interesting multiplayer variant of "rock, paper scissors," will entertain far longer than an on-line version of War in the East. FAR, FAR longer.
A few years back, the Supreme Court wrote the opinion in ACLU v. Reno, slam dunking CDA, with wonderful broad-sweeping language regarding freedom of speech and the Internet. Now, in part, based upon this language, the Third Circuit has enjoined enforcement of "Son-of-CDA" as an obvious impingement upon freedom of expression.
Unfortunately, at least four Justices (necessary to hear the case) do not think that the Son-of-CDA case is just Reno redux, but raises new significant issues worthy of review by the court. This could not mean that they simply want to say First-Amendment-uber-alles again -- these justices want to pull back. How far they want to pull back remains to be seen, and whether they can get the key fifth vote from Scalia (a surprise in First Amendment cases to date) is yet another thing.
But Scalia has "evolved" since Reno, and not in a good way. His jurisprudence has become far more political, far more results-driven and far less principled in these past years. He may be willing to change his stripes on points of principle in order to achieve a "politically correct" pro-censorship result.
Grump.
Like I said, the news is not great. The best we can hope for is a 5-4 decision to affirm, simply restating the law we already have at hand. What is worse, our pro-first-amendment allies must once again split on the virtues of private censorship as an alternative to government regulation, bringing up some old uglies once again.
If the game is less boring the Everquest, then they may have a hit on their hands.
Don't you get it? The game doesn't matter at all! If you get 100 people together with the idea that they are going to have fun, guess what? They will have fun to the extent that the game DOESN'T GET IN THE WAY.
This is the lesson of the real-time, real-space role-playing business; of the entire fantasy-role playing game business; indeed, of the entire entertainment business as a whole. People do not have fun because you have MADE THEM to have fun, but because you have found a way to facilitate their own pleasures and enjoyment.
The biggest problem of most multi-player games is this: the computer gets in the way. The network gets in the way. And if there is TOO MUCH GAME, the game gets in the way.
The problem with most massively multi-player games is this: the community gets in the way. Unless you naturally break out the community into solid sub-communities with which people can interact, all you have is a complex game with really good AI's. Not bad for a complex game, but nothing like the potential of an interactive game.
People-people games are fun, exciting and interesting. When I used to gamemaster large real-space games at conventions, the lesson we learned was that the most important thing to do, both in game design and moderation, is to get out of the way. Let players interact, and interact well. Control them subtly only, and let their minds entertain one another.
That's the real deal: the game doesn't matter. It's important to some extent, of course -- in that it is the putative reason a community comes together to game. But the game itself isn't the thing -- the people are.
It's a sad state of things when you've got to prove that something is good in order that it not be presumed harmful. "This hammer could be used for dangerous purposes -- can you prove there are good uses for it?" Sigh.
Well, here's the poop. Napster, the primary critter defendant in these matters, isn't itself copying any content, it is merely indexing p2p sources. We all get that. The Copyright law distinguishes between Direct copyright infringement (you did the copying) and Indirect infringement (you take the hit for someone else's copying).
Indirect infringement takes the form of contributory or vicarious infringement. To be liable for indirect infringement, a plaintiff must be able to prove not only that the third party infringed, which requires every element, but some other stuff as well, including actual knowledge of the third party's infringement.
One defense to infringement (and this is why VCR and copying machine manufacturers don't spend much time in court these days) is that the technology aiding the infringement is capable of a substantial noninfringing use.
Plaintiffs in these cases are suggesting that there may be no substantial noninfringing uses for p2p, and EFF would like to rebut that.
If you say so. By fleeing the country as a fugitive, being never able to return absent a grant of amnesty for both the underlying crime AND the crime of running, he simply becomes the poster child that the CoS can muscle you out of anywhere -- even the United States. By doing so, Keith loses credibility with U.S. politicians, lends credibility to the CoS for its claims, and ultimately moves nobody previously on the fence to the side of right and reason.
If that's the kind of thing you think makes for a favorable result, so be it. For my part, I think the cause of CoS critics took a major step backwards if these reports are true.
Belief in one's convictions means standing up for one's rights, not running scared.
The next person who considers cocking a snoot at the Church, I believe, will find herself deterred, not inspired, by this result.
So far as I can tell, he is not a political prisoner by any stretch of the imagination. He was accused of a crime, and after a full trial, a jury unanimously found him guilty. If his problem is with the form of the trial, he has remedies in the United States, far more powerful than would any convict in any other nation in the World. He instead decided to abuse the freedoms he had and left the nation.
Time will tell if Canada will offer him any meaningful refuge.
I was under the impression that the charges were federal (1984 deprival of civil rights). Why would he ever end up being held in a county lock-up?
Keith is an extraordinarily nice and articulate fellow -- I have met and spoken with him extensively at the Hackers conference from time to time, and very much enjoyed those communications. His efforts to defend himself pro se in a criminal matter, aided from time to time by a few ad hoc lawyers, were highly misguided and probably led, more than anything else, to the difficulties in which he now finds himself. The fact of the matter is this -- when you find yourself defending a criminal case, do not try to use the forum to make any other point.
Sure, there were reasonable reasons to drag aspects of his scientology criticism into the case -- and it would appear from the commentary to date that his attorneys at trial were unable to do a decent job getting that in at the time. But in the United States of America, you can get a fair trial, particularly in the face of idiocy -- and this can happen in criminal cases even without a pot to piss in.
This is where my sympathy ended for Keith. If the following is true:
He was not present at his sentencing hearing yesterday and is a fugitive from justice, apparently planning to claim asylum in Canada.
then he just committed a crime. One that he cannot blame on the Church, the United States or anyone else. Look, if you believe in your rights, stand up for them. Defend yourself sensibly, and hope for success at the end of the day. By going to Canada, he has forsworn any opportunity for an argument on the merits.
The call for justice here is improper. Had he submitted to the courts and been unfairly and improperly incarcerated, yes, by all means. Hell, he'd have guys like me helping with the appeals. By leaving for another nation and relying upon a claim of asylum, however, Keith went over the top. That is a felony, a most serious crime, with penalties that he'll never be able to overcome by making legal arguments on the merits. He's hoping to override the legal system by a political appeal. This is a poor choice of strategy, IMHO.
I am a long-standing and outspoken critic of CoS' legal tactics, particularly with respect to IP issues. I stand by those remarks, because I felt CoS was acting outside the bounds of the law, offending my sense of fairness and justice. Count me now as a critic of this action, if true, for precisely the same reasons.
Keith should have gone to sentencing. Running to Canada was a grave error, both legally and morally. Now, unfortunately, the merits of the case against him simply don't matter anymore. He's a fugitive not because he was wrongly accused, he is a fugitive because he chose to skirt the system.
*NONE* of these issues are decided by the USPTO. They are matters of statutory law, and there are powerful lobbies defending the status quo. It may surprise you to know that most corporate entities embraced and supported patent reform -- it was the small, and not so small, individual inventor community that opposed it.
Virtually *ALL* of these changes were proposed two years ago during the patent reform bills proposed by Senator Hatch. Individual inventors, largely supported by the Slashdot community, were violently opposed to this for obvious reasons. I noted then, and note now, that U.S. harmonization with the general practice described above, which is uniform with only subtle differences throughout VIRTUALLY THE REST OF THE WORLD (not just Japan) is not only a good idea, but ultimately an essential step for the benefit of the community.
For the record, U.S. *DOES* publish applications after 18 months, unless the inventor swears under oath that he will not pursue foreign patents.
The Japanese patent term is based upon the date a patent issues. The US patent term is based on the date of filing. The Japanese patent term is based on the date the application is FIRST published for opposition. Neither patent is enforceable until issued. Accordingly, the practical terms of the patents are comparable, but will differ, some longer some shorter, depending upon the speed of prosecution.
There is absolutely *NO* extraterritorial right in Japan derived from the grant of a United States patent. The only way *AT ALL* to enforce a United States patent in Japan is to get the grant of a corresponding Japanese application. Each sovereign has its own patent system with different rules for patentability, and the procurement of a patent in each nation is a precondition for enforcing a patent there.
It is not only possible, but common, that a patent might be obtained in the United States, but not in a foreign country (because of the 12-month grace period for filing, as opposed to most nation's absolute novelty requirement). Moreover, sometimes a sale, act or public use may need to take place within a nation to constitute prior art. Thus, prior art in the patent office of one country may not be prior art in the office of another.
The only significant treaties relating to patent applications are the Paris and PCT conventions (modified somewhat by the GATT agreements of a few years ago). Under Paris, each signatory agrees that it will accord a filing date for foreign applications based upon an original local national application; provided, however, that the foreign applicaitions are filed no later than twelve months after the local national. No deference is given to the local national application, except with respect to the effective date used to determine what is prior art.
The PCT modifies this, providing a mechanism that,in effect, permits an extension of this period as much as thirty months or so. This allows companies to avoid the enormous expense of foreign filings until they have been able to evaluate the practical value of the patent.
I've had to do research regarding business codes when I started practicing law. All I had to do was go to the office of the county clerk -- it was all there.
We may not ultimately disagree, except that I don't see how this could possibly bolster the pro-DMCA position or compromise the Junger/Bernstein doctrine. Let me clarify how I understood the dissent:
A statute, by its nature, is limited by the precise language used to set forth its provisions. Even punctuation can substantively determine how a court would apply the cannons of construction, based upon the text. Scalia wrote an entire monograph on his textualism, where he holds that the meaning of the law must be determined primarily, often solely, on the structure of the text itself.
Thus, the text *IS* the law, and vice-versa. It is not merely that it binds us, because the idea of a law can ONLY be expressed, under much modern jurisprudential views of statutory construction, by reference to the text itself.
In this sense, I think the judge mixed up some of his copyright principles. it is not so much that the expression has become an idea, as it is that the expression merges with an idea once the text of the statute becomes the law.
Slashdot Mirror
Period. Without passing upon the merits of your solution, they are irrelevant to the question at hand. Entirely.
The USPTO has no authority to change the term of the patents they issue. None. That is set forth in the Patent Act, and is not subject to interpretation by the USPTO.
. . . any response to a request for comments about databases addressing the subject matter for patentability would be taken seriously at all?
Look, the USPTO has absolutely no say at all as to the scope of patentable subject matter. None, nada bupkis. Zero.
The United States Patent Act provides in Sections 101, 102 and 103 the criteria for patentability, and the USPTO has no authority to deviate from that. Not one inch. Nor are they given authority to interpret the statutes independently of the United States Judiciary.
The only time they deviated from statutory requirements recently, regarding examination of means plus function language, the Commissioner had his a** handed to him in an unequivocal swat on the derriere.
So, give these guys a break. They don't decide whether or not to examine software patents -- their only rule they applied (it was a no software patent rule!) was held improper in the Supreme Court case of Diamond v. Diehr.
The Supreme Court and Federal Circuit have spoken, and theirs is the authoritative decision. The only way they can be overruled is by an act of Congress.
So leave these poor bureaucrats alone. Your remarks about the propriety of granting software patents will AND SHOULD fall on deaf ears there.
On the other hand, if you were inclined to do something usful or constructive, you could help them out by proposing decent databases from which to examine present applications, and thereby improving the quality of examination.
Scalia is far from a "strict constructionist." (A notion associated more with the jurisprudence of Bork and, to some extent, Thomas than Scalia). Indeed, he expressly eschews notions such as original intent and congressional intent -- the doctrinal view (euphemism for how he explains how he reaches some, but not all of his results -- same deal with the left by the way) is called textualism, whereby he presumes that text plainly resolves all questions, and that it is an anathema to pierce beyond the text to the "intent" of the author of a statute. (OT, but for completeness, Rhenquist's views seem to me to be neither originalist nor textualist, but rather statist in nature.)
."; Bork can do some things here Scalia simply can't), his record on the Fourth Amendment is abysmal. Since his term on the Court, he has virtually made the Fourth Amendment an obscure exception. This case is remarkable in view of this, and I look forward to carefully studying it.
At any rate, while I agree that Scalia has been somewhat solicitous of first amendment issues (textualism really doesn't permit much messing around with "Congress shall make no law . .
Too often these days we see those who are empowered in our society, either by money, political or social position, seeking further extensions of that power. The law, it seems, wasn't enough.
The RIAA and MPAA were tremendously well-protected under the Copyright Act, without more. But that was not enough. Dissatisfied with the existing provisions of the Act, carefully negotiated by careful balancing of public policies, they went for the raw power-grab, and obtained rights in gross through the MPAA, making it a crime and actionable to circumvent copyright protection technology, even when the technology circumvention does not give rise to an infringement.
Likewise with trademarks, the AntiCybersquatting Act and trademark dilution.
Likewise here, with the proposed "don't peek" provisions. Again, the Congress carefully drafted (well, its a mess, but its what they gave us) the Computer Fraud and Abuse Act and the Electronic Communications Protection Act, with all its powers and limitations, to prevent certain kinds, but not all kinds, of hackery. Congress expressly limited de minimus impositions costing less than $5,000 per year, such as pings, from the CFAA, precisely to protect overreaching machine-owners and, if you will, "to permit the spice to flow" as internet technologies develop.
But the powers that be are always seeking yet another way. We no longer need the CFAA, with all of its policy-balancing limitations and exceptions. Instead, let's just make it illegal to ping, if I'm powerful enough to sue your patents off, and watch you squirm under the power of my legal sledgehammer.
This is, simply put, the wrong thing to do. If we are going to empower people to protect legitimate interests, we must carefully carve out the abuse of that power to protect other interests; and make it cost the nasty plaintiffs when they lose.
I do not condone computer crime, and portscanning is a blight upon mine eyes. But we shouldn't make it criminal or actionable when it doesn't rise to the level of meaningful denial of service, and we should wait until a computer crime is actually committed before we go after someone for a computer crime.
Otherwise, we simply empower the powerful to prey upon the weak. That will always happen, of course as a force of nature -- but we needn't write it into the law.
It is time to STOP changing the law to circumvent public policy, just to appease the few powerful enough to lobby the Congress. Yes, this sounds good, and the argument of the article, while not persuasive, cannot be ignored without reasoned comment. But it is bad for the net, and it is bad for America. We don't need to arrest woeful pingers, just because it would facilitate catching a few real bad guys who are otherwise slipping through the cracks.
That's too much and not enough good law.
With all due respect, you appear to be relying upon the assertion of a non-legal academic in Croatia's view of United States law. I would prefer, instead, to rely upon the findings of the United States Court for the Federal Circuit, which has exclusive jurisdiction on such questions.
It is one thing to say that a patent is valid, it is another to determine whether it is so. It is one thing to say that the scope of a patent covers an algorithm, it is another to actually construe the claims to see that it does.
In short, United States Patent law is substantially more subtle than the average engineer's view of the subject. It is well-settled law that you cannot own a valid patent on a pure mathematical algorithm (with the caveats noted in my original post).
Someone who says differently is just selling something -- either overselling a patent he owns, or overselling a criticism of the patent system.
Although I am both an accomplished software engineer, programmer and patent lawyer, I'm just reporting my own study of the applicable law. Responsible readers should decide for themselves what is, the truth. But only after reading the primary source matter: the Patent Act and the relevant cases. (State Street Bank and the AT&T v. Excel cases are great places to start -- those would be the strongest from which I might argue your position if I had to do so. I suggest you review them and then consider how I might respond to that argument!)
If you are correct that the patent to which you refer claims a mathematical algorithm as an abstract idea, then you are, by definition, incorrect that it is valid.
The fact that an invalid patent had not yet been judicially declared invalid or subjected to reexamination has no bearing on whether the patent is, in fact, valid.
If you want to get into specifics, feel free to e-mail me and we can discuss the details of this particular patent off-line.
This is a fine point, in practice, but a significant one at the end of the day. Notwithstanding the Federal Circuit's results in State Street Bank and AT&T v. Excel, it remains well-settled that you cannot patent a formula, mathematical algorithm or a law of nature. Each of these cases reaffirms this general principal of law.
That being said, it is likewise well-settled that the mere appearance or recitation of a formula, mathematical algorithm or law of nature in a patent claim does not invalidate the claim. What you can patent is a concrete application of these abstract ideas.
A patent directed to a novel catapult (assuming there were none in the prior art for the purpose of this example) can be described as a method for projecting massive objects through space with a parabolic trajectory. However, to be patentable, the claims must be directed to both the structure of the solution (the steps) and the context in which they are applied. A mere recitation of a method of using an inverse square law of physics would fail.
This is a fine point, of course -- good coverage can be obtained in practice going to the essence of the commercial benefit of a formula or law of physics. But the fact of the matter is that you can't patent math, even here in the United States of America.
Apple is using IPFW in Darwin.
Jon argues that a statute limiting the public play of video games is blatantly unconstitutional in view of the First Amendment. I agree that this law would be the worst kind of public policy and should never be adopted. However, as far as his lawyering goes, he might want to keep his day job.
Perhaps Jon ought to research the case law, for example, concerning zoning of adult book stores --displays of public lewdness -- and laws governing legal assault.
There is a long and well-developed body of law supporting laws that limit the scope of where or when one can publicly display certain kinds of content that is not itself contraband. (Constitutional obscenity can be banned completely, of course, but almost nothing satisfies the requirements of being constitutionally obscene).
Of course the particular text of this particular statute may have been too broadly written to fall within the intermediate scrutiny given such laws, or too content-driven in nature to survive strict scrutiny. But between you and me, I would need to do quite a bit of research before I could conclude to a certainty that any bill fitting Jon's description would be unconstitutional on First Amendment grounds.
"royalty-free, perpetual, irrevocable, non-exclusive license."
It was not so long ago that we were ridiculing authors of postings for asserting their copyright in public postings; and ridiculing participants in disputes for suing one another for defamation. First amendment uber alles, we said.
All Google seems to be demanding here is the utterly reasonable proposition that, if you use their systems, you can't sue them for using the fruits of that use. True, you can't post there and then keep them from incorporating your posts in a book. Your solution? Don't post there.
Why is that unreasonable?
Seriously, it seems like we are taking highly inconsistent positions these days, depending more upon whose ok is gored than upon the merits or principles at hand.
but its not their way. I cannot imagine that any firm supporter of the Third Circuit result would vote to grant Certiorari (particularly Ginsburg and Breyer), for there is always the risk of a 5-4 change of course on this panel. Even if the moderates would support affirming on this case, the particular set of moderates would be anal-retentive about not taking up a case for the purpose of repeating what they had already said.
On the other hand, nobody could make a decent living predicting the whys and wherefores of the Court. At the end of the day, you might be right after all. Regrettably, I tend to doubt it. I anticipate it to be a close 5-4 opinion, with fairly moderate language being a necessary precondition to keep the coalition together.
Since Reno was as stinging and wide-open an opinion as it gets, I can't see this result yielding any good.
The best we can hope for is for the Court after briefing to dismiss the case for certirorari improvidently granted.
Agreed 100% with everything except the free speech issue. Scalia has surprised me repeatedly with a fairly hard-line pro-speech view despite his anal-retentive conservatism. Indeed, the free speech cases seem to account for a substantial portion of the times he voted opposite Thomas and Rhenquist. Romer, of course, isn't a first amendment case. Further, his extracurricular writings show a strongly solicitous view of freedom of speech. (Of course, sometimes these views seemed cynically designed to support other policy issues, such as his dissent in the abortion clinic protest cases and in the hate speech cases).
In Reno, Scalia went with the majority (surprisingly, as did Thomas, BTW).
I wouldn't count Scalia out from the side of the first amendment, however, I believe that the Thomas/Rhenquist/O'Connor/Kennedy were the foursome voting to take up the case. For this reason, I believe that Scalia may well swing this opinion.
This insightful reply points up the counterpoint to the obviously overreaching observations that I made -- in part, to make the point. I agree that a sucky game (in some measures) will ultimately kill a community. But the "game" I was referring to as unimportant deals with issues like "way-cool graphics," "size of the world," "presentation of plot and story," and "detailed physics." These things don't matter.
What matters is that the game be "deep" enough to sustain a long-lasting relationship with the players. Chess is a deep enough game. Tic-tac-toe is not. War in the East was a deep enough game, but way too complex to permit decent interaction. Moving from board games to story-telling, I note that the biggest, most important traits of a game design be this:
1) It not impede player-player interaction, and affirmatively encourages and rewards it;
2) It's mechanics are simple and malleable, so to permit evolution with the needs of the community;
3) It's game balance, particularly the issue of clarity v. depth, be as close to perfect as possible, and that the game evolve in accordance with (2) driven by this concern over all. No additions to the game should be made without focusing on this point.
The archetypal best repeatable multi-player game, combining Depth and Clarity, is a game akin to Diplomacy. The archetypal games for role-playing are the real-time, real-space games, such as those outlined at larpa's web site.
These games focus on the interaction and gaming experience more than on the game itself. Technology *IS* a serious impediment -- it gets in the way of the people-people communications. THIS is the key technological challenge of a networked multi-player computer game, not the game design or the prettiness of the screen. It gets even trickier for a massively multi-player game, however technology provides some WONDERFUL solutions to that problem -- I just have yet to see that done, let alone done well.
Anyway -- it is this challenge that makes the differences at the end of the day, not the packaging. Packaging gets folks in the door, but it isn't enough, not by a far cry. Gaming does require a game, but I will tell you this: a solid, interesting multiplayer variant of "rock, paper scissors," will entertain far longer than an on-line version of War in the East. FAR, FAR longer.
A few years back, the Supreme Court wrote the opinion in ACLU v. Reno, slam dunking CDA, with wonderful broad-sweeping language regarding freedom of speech and the Internet. Now, in part, based upon this language, the Third Circuit has enjoined enforcement of "Son-of-CDA" as an obvious impingement upon freedom of expression.
Unfortunately, at least four Justices (necessary to hear the case) do not think that the Son-of-CDA case is just Reno redux, but raises new significant issues worthy of review by the court. This could not mean that they simply want to say First-Amendment-uber-alles again -- these justices want to pull back. How far they want to pull back remains to be seen, and whether they can get the key fifth vote from Scalia (a surprise in First Amendment cases to date) is yet another thing.
But Scalia has "evolved" since Reno, and not in a good way. His jurisprudence has become far more political, far more results-driven and far less principled in these past years. He may be willing to change his stripes on points of principle in order to achieve a "politically correct" pro-censorship result.
Grump.
Like I said, the news is not great. The best we can hope for is a 5-4 decision to affirm, simply restating the law we already have at hand. What is worse, our pro-first-amendment allies must once again split on the virtues of private censorship as an alternative to government regulation, bringing up some old uglies once again.
If the game is less boring the Everquest, then they may have a hit on their hands.
Don't you get it? The game doesn't matter at all! If you get 100 people together with the idea that they are going to have fun, guess what? They will have fun to the extent that the game DOESN'T GET IN THE WAY.
This is the lesson of the real-time, real-space role-playing business; of the entire fantasy-role playing game business; indeed, of the entire entertainment business as a whole. People do not have fun because you have MADE THEM to have fun, but because you have found a way to facilitate their own pleasures and enjoyment.
The biggest problem of most multi-player games is this: the computer gets in the way. The network gets in the way. And if there is TOO MUCH GAME, the game gets in the way.
The problem with most massively multi-player games is this: the community gets in the way. Unless you naturally break out the community into solid sub-communities with which people can interact, all you have is a complex game with really good AI's. Not bad for a complex game, but nothing like the potential of an interactive game.
People-people games are fun, exciting and interesting. When I used to gamemaster large real-space games at conventions, the lesson we learned was that the most important thing to do, both in game design and moderation, is to get out of the way. Let players interact, and interact well. Control them subtly only, and let their minds entertain one another.
That's the real deal: the game doesn't matter. It's important to some extent, of course -- in that it is the putative reason a community comes together to game. But the game itself isn't the thing -- the people are.
It's a sad state of things when you've got to prove that something is good in order that it not be presumed harmful. "This hammer could be used for dangerous purposes -- can you prove there are good uses for it?" Sigh.
Well, here's the poop. Napster, the primary critter defendant in these matters, isn't itself copying any content, it is merely indexing p2p sources. We all get that. The Copyright law distinguishes between Direct copyright infringement (you did the copying) and Indirect infringement (you take the hit for someone else's copying).
Indirect infringement takes the form of contributory or vicarious infringement. To be liable for indirect infringement, a plaintiff must be able to prove not only that the third party infringed, which requires every element, but some other stuff as well, including actual knowledge of the third party's infringement.
One defense to infringement (and this is why VCR and copying machine manufacturers don't spend much time in court these days) is that the technology aiding the infringement is capable of a substantial noninfringing use.
Plaintiffs in these cases are suggesting that there may be no substantial noninfringing uses for p2p, and EFF would like to rebut that.
I believe he just did.
If you say so. By fleeing the country as a fugitive, being never able to return absent a grant of amnesty for both the underlying crime AND the crime of running, he simply becomes the poster child that the CoS can muscle you out of anywhere -- even the United States. By doing so, Keith loses credibility with U.S. politicians, lends credibility to the CoS for its claims, and ultimately moves nobody previously on the fence to the side of right and reason.
If that's the kind of thing you think makes for a favorable result, so be it. For my part, I think the cause of CoS critics took a major step backwards if these reports are true.
Belief in one's convictions means standing up for one's rights, not running scared.
The next person who considers cocking a snoot at the Church, I believe, will find herself deterred, not inspired, by this result.
So far as I can tell, he is not a political prisoner by any stretch of the imagination. He was accused of a crime, and after a full trial, a jury unanimously found him guilty. If his problem is with the form of the trial, he has remedies in the United States, far more powerful than would any convict in any other nation in the World. He instead decided to abuse the freedoms he had and left the nation.
Time will tell if Canada will offer him any meaningful refuge.
I was under the impression that the charges were federal (1984 deprival of civil rights). Why would he ever end up being held in a county lock-up?
The U.S. Justice system just sucks. Until you compare it to anything else in the world.
Keith is an extraordinarily nice and articulate fellow -- I have met and spoken with him extensively at the Hackers conference from time to time, and very much enjoyed those communications. His efforts to defend himself pro se in a criminal matter, aided from time to time by a few ad hoc lawyers, were highly misguided and probably led, more than anything else, to the difficulties in which he now finds himself. The fact of the matter is this -- when you find yourself defending a criminal case, do not try to use the forum to make any other point.
Sure, there were reasonable reasons to drag aspects of his scientology criticism into the case -- and it would appear from the commentary to date that his attorneys at trial were unable to do a decent job getting that in at the time. But in the United States of America, you can get a fair trial, particularly in the face of idiocy -- and this can happen in criminal cases even without a pot to piss in.
This is where my sympathy ended for Keith. If the following is true:
He was not present at his sentencing hearing yesterday and is a fugitive from justice, apparently planning to claim asylum in Canada.
then he just committed a crime. One that he cannot blame on the Church, the United States or anyone else. Look, if you believe in your rights, stand up for them. Defend yourself sensibly, and hope for success at the end of the day. By going to Canada, he has forsworn any opportunity for an argument on the merits.
The call for justice here is improper. Had he submitted to the courts and been unfairly and improperly incarcerated, yes, by all means. Hell, he'd have guys like me helping with the appeals. By leaving for another nation and relying upon a claim of asylum, however, Keith went over the top. That is a felony, a most serious crime, with penalties that he'll never be able to overcome by making legal arguments on the merits. He's hoping to override the legal system by a political appeal. This is a poor choice of strategy, IMHO.
I am a long-standing and outspoken critic of CoS' legal tactics, particularly with respect to IP issues. I stand by those remarks, because I felt CoS was acting outside the bounds of the law, offending my sense of fairness and justice. Count me now as a critic of this action, if true, for precisely the same reasons.
Keith should have gone to sentencing. Running to Canada was a grave error, both legally and morally. Now, unfortunately, the merits of the case against him simply don't matter anymore. He's a fugitive not because he was wrongly accused, he is a fugitive because he chose to skirt the system.
*NONE* of these issues are decided by the USPTO. They are matters of statutory law, and there are powerful lobbies defending the status quo. It may surprise you to know that most corporate entities embraced and supported patent reform -- it was the small, and not so small, individual inventor community that opposed it.
Virtually *ALL* of these changes were proposed two years ago during the patent reform bills proposed by Senator Hatch. Individual inventors, largely supported by the Slashdot community, were violently opposed to this for obvious reasons. I noted then, and note now, that U.S. harmonization with the general practice described above, which is uniform with only subtle differences throughout VIRTUALLY THE REST OF THE WORLD (not just Japan) is not only a good idea, but ultimately an essential step for the benefit of the community.
For the record, U.S. *DOES* publish applications after 18 months, unless the inventor swears under oath that he will not pursue foreign patents.
The Japanese patent term is based upon the date a patent issues. The US patent term is based on the date of filing. The Japanese patent term is based on the date the application is FIRST published for opposition. Neither patent is enforceable until issued. Accordingly, the practical terms of the patents are comparable, but will differ, some longer some shorter, depending upon the speed of prosecution.
There is absolutely *NO* extraterritorial right in Japan derived from the grant of a United States patent. The only way *AT ALL* to enforce a United States patent in Japan is to get the grant of a corresponding Japanese application. Each sovereign has its own patent system with different rules for patentability, and the procurement of a patent in each nation is a precondition for enforcing a patent there.
It is not only possible, but common, that a patent might be obtained in the United States, but not in a foreign country (because of the 12-month grace period for filing, as opposed to most nation's absolute novelty requirement). Moreover, sometimes a sale, act or public use may need to take place within a nation to constitute prior art. Thus, prior art in the patent office of one country may not be prior art in the office of another.
The only significant treaties relating to patent applications are the Paris and PCT conventions (modified somewhat by the GATT agreements of a few years ago). Under Paris, each signatory agrees that it will accord a filing date for foreign applications based upon an original local national application; provided, however, that the foreign applicaitions are filed no later than twelve months after the local national. No deference is given to the local national application, except with respect to the effective date used to determine what is prior art.
The PCT modifies this, providing a mechanism that,in effect, permits an extension of this period as much as thirty months or so. This allows companies to avoid the enormous expense of foreign filings until they have been able to evaluate the practical value of the patent.
I've had to do research regarding business codes when I started practicing law. All I had to do was go to the office of the county clerk -- it was all there.
in which he discussed, perhaps for the first time for many Americans, including techies, the socio-economic importance of the "Information Highway."
He got it. And he got it years before many of you youngun's first heard of the internet.
We may not ultimately disagree, except that I don't see how this could possibly bolster the pro-DMCA position or compromise the Junger/Bernstein doctrine. Let me clarify how I understood the dissent:
A statute, by its nature, is limited by the precise language used to set forth its provisions. Even punctuation can substantively determine how a court would apply the cannons of construction, based upon the text. Scalia wrote an entire monograph on his textualism, where he holds that the meaning of the law must be determined primarily, often solely, on the structure of the text itself.
Thus, the text *IS* the law, and vice-versa. It is not merely that it binds us, because the idea of a law can ONLY be expressed, under much modern jurisprudential views of statutory construction, by reference to the text itself.
In this sense, I think the judge mixed up some of his copyright principles. it is not so much that the expression has become an idea, as it is that the expression merges with an idea once the text of the statute becomes the law.
Does this help at all?