This article discusses the February holding of the Fifth Circuit, and is just the latest incarnation of decades of case law addressing copyrightability of technical building codes. Similar cases dating back into the 80s have emerged from the Second, Eighth, Ninth and Eleventh Circuits.
My point here is not to argue that the result is a good one (I dislike this on public policy grounds for reasons similar to those laid forth elsewhere in this thread), but to suggest that this is hardly "the beginning of the end," or some new malevolence from the recently copyright-hungry courts. Since the 80's, this is how the law has shaken out on building codes. Over more than twenty years from the earliest opinions in this thread of which I am aware, the sky has not yet fallen.
For a really interesting (and I think sound) discussion of why the case has merit and failings, I suggest reading the opinion and dissent itself, but particularly the dissent. They can be found here. I am most impressed with Judge Little's argument that, once enacted into law, the words of a statute no longer serve just their expressive purposes, but are transmogrified into a functional idea. Clearly a bit too metaphysical for the Courts, but I anticipate that someday this notion may hold sway.
In the meanwhile, building contractors have hardly had difficulty getting their hands on the building codes. They are readily available, both at the county clerk's office and from the original standards organizations.
If, in fact, the parade of horribles had happened -- that is to say that the codes were not available to those who required them, republication would clearly have been fair use.
If you say so. For the record, this case has nothing to do with software patents. Reasonable people may disagree, but the broad consensus for hard science patents is that the patent system has superbly aided the flow of capital to technology intensive projects, and facilitated the broad disclosure and use of the same. Yes, of course, ANY RIGHTS AT ALL, tangible or intangible, property or personal integrity, will lead to disputes, and some plaintiffs are supposed to have lost -- one way to deter litigation is to adopt the simple rule:
All plaintiffs lose.
or its converse
All plaintiffs win.
Either rule leads to grave injustice. The absence of rights altogether leads to anarchy.
As I said, we have the worst system in the world, until you consider the alternatives.
Yeah, the legal system sucks. Its the worst system on Earth for resolving commercial disputes, until you consider the alternatives.
I agree that there are few things dumber for two brilliant CEO's to do than to conclude that their high-tech disputes must be resolved by six random people off the street.
But these CEO's reached that conclusion. There were mediations, arbitrations, all sorts of efforts made to help the parties find some middle ground. None was to be had.
One competitor thought the other had engaged in fraud, the other thought the first had stolen their property. Rather than hiring soldiers or private police, they hired lawyers.
Here the patent system did the right thing. Rambus appears entitled to the patents they had, and the defendants appear not to have infringed those patents. The legal system, apart from the patent system, found certain commercial conduct to be fraudulent. This may ultimately feedback to limit the enforceability of the patent, maybe not.
The system worked because it answered the parties questions after a fair process; questions they couldn't resolve any other way.
If you know a better way to assure these results are properly and fairly adjudicated, I'd love to hear what you have in mind.
Now you are running wildly afield of your original case. First, WIPO doesn't issue patents. The PCT grants no enforceable rights at all.
Second, I agree that not all nations issued patent to foreigners in the past. But the US (almost) always did so. Hence, the US was not china then, unless (using your standards) everyone was.
At any rate, none of this supports the historical revisionism of your initial post.
You are objectively wrong on this point, as wrong as can be. It is a matter of record that the jury made no finding that the patent was invalid. Period.
Even if the judge were to hold Rambus' conduct (which the jury DID hold to be fraudulent) sufficient to give rise to a declaratory judgment of unenforceability, AND even if the Federal Circuit were to reverse existing precedent on unenforceability, this would not support the preceding remark suggesting the patent should not have issued.
A patent is issued, or not, based solely on the state of the prior art. Period. The patent office can determine invalidity of a claim, but not unenforceability of a claim were a patent to be granted. The patent office is without statutory and constitutional authority to make determinations that any ancilliary conduct would give rise to unenforceability.
So, sorry, you're just wrong. The patent system worked fine.
I think this can be safely classified as a completely unexpected result. Careful, patent litigators. The sword you hold isn't just double-edged -- it's got no fuckin' handle either!
Not so unexpected. All one had to do was read the answer and summary judgment motions. Those arguments survived through trial for a reason.
I don't understand the logic here. Compaq and HP have contracts with their suppliers that specify that the suplier must comply with any and all applicable patents. Why does the fact that Compaq and HP have money make them liable for the actions of others?
If they made, used, sold, offered for sale or imported an infringing apparatus, they are liable to the plaintiff. Their contracts with other persons might give them a cause of action for indemnity or contribution (if collectible, of course), but that doesn't get them off the hook -- they still owe the plaintiff the dough, and if their indemnitors go under, they are stuck holding the bag.
Yes, this means an indemnification and hold harmless provision from an uncollectible poor guy is virtually meaningless in practice -- at best it may give the poor guy some deterrence.
... in the context of my statements, yes. The point is, we respected U.S. patents, but not other nations', and as was common then, it wasn't easy (possible?) for non-citizens to get patents in the U.S. So, we happily se about copying stuff from overseas and selling it here and abroad. And the europeans complained about it.
I understand that the U.S. has had copyrights and patents since its inception. It wasn't the case, though, that we respected other countries' patents. And why should we have?
You seem to be under the false impression that nations enforce each other's patents. So far as I know, no nation has ever enforced the patents issued by another, then or now. (I am told there were a few sparse bilateral agreements that might be considered to be exceptions to this, but we would be quibbling if you were resting on those; the PCT and Paris conventions actually serve to disprove, rather than support, your point for patents).
Today, if I want to enforce my patent in the UK today, I must timely file a national application there, go through examination (at great expense, typically), perhaps face additional objections and make additional concessions to those made in the US prosecution. Only after my UK patent issues there would I have any enforceable rights. The same is true of any UK patent with respect to enforcement in the U.S.
So, I guess, the UK is still China. Hell, we all are.
The argument, however rhetorically powerful it may seem, fails because it contains a logical fallacy. The negation of a straw man does not prove the validity of another standard.
That dullard noninventions should be patented is an undeniable truth. So what? That is a straw man proposed by no one. However, this does not mean that a spark of genius is required. This is his fallacy.
Moreover, spark of genius is clearly not the standard. It suffices merely that differences between the claimed invention and the prior art would not have been obvious to a person of ordinary skill. And both the Congress and the Supreme Court has set that forth clear as glass. See 35 U.S.C. s. 103.
Indeed, more than thirty years before the excerpt proffered by the previous writer was penned, the Supreme Court established the obviousness standard that the modern statute now codifies. Hotchkiss v. Greenwood, 52 U.S. 248 (1851)("more ingenuity and skill . . . were required . . . than were possessed by an ordinary mechanic acquainted with the business").
If this standard, which has been in place for most of the past 200 years (there was a short-lived dalliance with a "flash of brilliance" standard, which was later repudiated), constitutes the "decline of our civilization," then we should embrace such decline, and keep it going for so long as we are able.
It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.
While the citation and volume reference is incorrect ("Atlantio," not "Atlantic"), the quote certainly is. No defender of the patent system would agree that patents should be issued to an invention that "would naturally and spontaneously occur to any skilled mechanic." This doesn't mean that any standard greater than unobviousness would be required. Unobviousness is the common law standard set years prior, later codified as 35 U.S.C. s. 103.
Finally, the author's largest logical leap was to tacitly assume that this particular patent isn't inventive. I invite the previous author to provide evidence of invalidating prior art that would make this particular form of permanent magnet obvious. The substance, if any, of that answer will clarify whether he was genuinely attempting to make a reasoned comment on the state of society, or was simply engaging in demagoguery.
Even today, Britain does not enforce US patents
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No nation does.
Even given the broad multilateralism, you must apply for and receive a patent in each individual nation in which you would like to enforce a patent. The Patent Cooperation Treaty merely facilitates the process by assuring you a priority date based on your domestic filing for later-filed international applications.
Thus, I suppose, if we adopt the original poster's criteria, we might say that the US is still the China of the modern age, since we still do not enforce a single foreign patent. (On the other hand, a vast number of U.S. patents are regularly issued to foreign nationals, and we enoforce every one of those to the extent they are valid, just as we did way back in the 18th century.)
Interestingly, the U.S. was the "China" of its day when the country was first founded (with a little more freedom for its citizens, of course). Cheap manufacturing, a lack of regard for copyrights and patents from other countries. Plus, the U.S. defaulted on its debts quie a bit.
This is a wildly simplistic and misleading remark. Indeed, America's commitment to intellectual property protection is deep and longstanding.
Article I, Section 8 of the Constitution provides for a Copyright and Patent Act, and recognizing the importance of invention to the health of the new nation, the early Congresses made the enabling laws a key priority. That wasn't the earliest provisions either. Many (I don't know if it was all) of the states of the confederation each had patent systems and there were copyright-like protections available for works of authorship.
As to our being the "China" of the world, that's just wildly misleading. NO NATION AT THAT TIME gave broad reciprocity to the intellectual property laws of another. That sort of multi-nationalism didn't happen until the modern era, with the Paris and Berne conventions, and various other multilateral and bilateral trade agreements. Foreign nationals were permitted to obtain patents in some nation's patent systems, albeit with some prejudice and disadvantage. (There were some bilateral IP agreements dating back to the 18th century, but they were sparse and narrowly circumscribed, so I am informed.)
For the United States, it is true we didn't enforce English letters patent issued by King George and his predecessors. Guess what? We also stopped enforcing the tea tax acts and other British decrees and laws at that same time! You see, we just beat them in a war and became sovereign entities. We got to make up our own laws, just as they did.
After we resolved to replace the confederation to become one United States, we continued that practice. Guess what? They didn't enforce American patents either. Hey, were they China too?
(1) is the reason. They are likely to be collectible even if the direct defendants go out of business or are not. Also, there may be a better claim for wider damages against the larger companies, based on the overall cost of their products.
In patent infringement cases, it simply doesn't matter whether they knew or should have known their conduct was infringing. Period. It is infringement simply to make, use, sell, offer to sell or import into the country any infringing article of manufacture. Strict liability, no state of mind required.
I would agree there is a distinction. I'm not sure the distinction makes a difference legally speaking.
Granting your argument, that still doesn't get you to the next step: that there is a difference that the law recognizes. The Copyright Act is pretty unforgiving in this regard, and the AHRA does not provide for distribution.
This is the tactical downside of sending demand letters. Depending how the letter is worded (and RIAA has been going more for subjective effect on the subject than legal benefit, based on the letters posted to the net), the letter doesn't create any meaningful downside for the prospective defendant, while giving the defendant options he didn't have before.
Aimster is, in effect, suing on the letter, saying it has created doubt as to the rights of the parties. Had RIAA sued, rather than sending a demand letter, it could have chosen its forum and venue, perhaps bringing the suit in the 9th Circuit -- and thereby getting all the benefit of the 9th Circuit Napster Opinion.
Because Aimster gets to pick the venue, this action is brought in New York, in the Second Circuit, and thus giving the P2P folks a second "byte" at the apple, getting to argue the Napster case pretty much afresh, perhaps obtaining a different result from the Second Circuit.
And the conflict between the Circuits would be a basis for review by the Supreme Court, so that the Court can ultimately determine whether it meant what it said in the Sony Betamax case.
Certainly not according to the Northern District Court of California and the 9th Circuit, who rejected this argument in Napster. In particular, the Courts read the rest of the statute, which they held excludes the use of a computer as a "recording device."
The AHRA argument was always Napster's weakest argument, even when used to justify personal use of the recordings and time sharing. There is further substantial authority that while AHRA provides for personal household use, it does not permit limitless sharing (distribution) of personal recordings with third parties.
once you consider what happened here. This is just what lawyers call a "narrowing of the issues," and hardly a dispositive ruling. The finding of no willful infringement probably stings, however.
Rambus had a bunch of patents. Threw 'em all at the defendants. Wouldn't agree to limit the number of patents or claims prior to trial. At trial, plaintiff only addressed a narrow number of claims in a few of the patents. [It would be advocacy suicide to try to prove up a zillion claims from a zillion patents].
Unsurprisingly, after plaintiff rested its case, the defendants moved to dismiss all the counts for all the patents on the grounds that Rambus didn't meet its burden of going forward. The judge agreed with respect to all the claims of some of the patents, and some of the claims of the remaining. But several patents, and many claims, remain.
A defendant needs to infringe but one claim of one patent to be liable for infringement and subject to an injunction.
So, after half a trial, we have narrowed the issue to the remaining claims. But defendant's position on liability remains just as precarious as before.
If you are found liable for willful infringement, as opposed to non-willful infringement, then the judge may enhance the computation of actual damages to an amount not exceeding thrice the actual damages; and in an exceptional case may grant to the plaintiff an award of attorney fees as well.
Right. Their license requires them to give notice concerning the "accounts" issue. It is the generally feeble efforts of MLB and similar sports organizations to hold on to what's left of the hot news exception.
Consult the Copyright Act, 17 U.S.C. s. 106, which provides that the copyright holder owns exclusive rights to reproduction and distribution. With respect to a copyrighted work directly from the original sheet music, a recording or a performance of a copyrighted work, if you record the tablature, and published that result, you have implicated both reproduction and distribution rights. There are some merger issues, but for many tunes, you will run into quite a few walls trying to defend on grounds of noninfringement.
A better claim might be fair use. Much depends on the particular facts of the case; the work, how much is taken; impact on the publishing marketplace; for what purposes the tablature was recorded, and so forth.
Nope. That was settled in the Motorola cases not too long ago. There is nothing copyrightable in the subject matter of a sporting event. Of course, you can't simply rebroadcast a particular sportscast, or use excerpts of the play by play commentary -- that (the photography and the content) is most certainly protected.
however, the subject matter of what is shown on the newscast -- that's no violation of copyright.
It remains to be seen, however, whether the common law action for misappropriation would apply. The law varies from state to state whether the action protects contemporaneous rebroadcast of "hot news." But that is another (really hypertechnical, but fun for geek lawyers) issue.
What is clear is that traditional sporting events, itself, is not likely to be protected by copyright. (There may be interesting issues in highly choreographed events, perhaps something like pro wrestlying).
I made similar observations yesterday when we first got the news. I feel more strongly today that this was the correct solution.
I disagree strongly with those who expressed disappointment with Felton's decision. While it is certainly true that Felton's case is awesomely strong if he were sued, both from the heart and on the merits, and that it would be a joy to see a DMCA anti-circumvention case with a highly sympathetic defendant, little would be gained. There are enormous constitutional issues here, and significant Copyright policy questions.
Had Felton continued, he would likely have argued: (1) there is a crypto research savings clause; (2) there are other defective issues with the plaintiff's case; and (3) even if there weren't, the first amendment would preclude the issue. 1 and 2 are close to drop dead wins for Felton in this case, and for that reason, the Courts will never, ever, ever reach the constitutional question. The most likely result is that the defendants would have prevailed, with the useless judicial precedent holding that the crypto research exception is an exception for crypto research.
Felton's case isn't a good test case, precisely because its a really, really good case. But by falling on his sword and LOSING a case he is likely to win, he does two enormously important things:
(1) Earns FOR FREE political capital for the anti-DMCA movement, providing opportunities for the handfull of Congressmen and Senators already leaning that way, and providing extraordinary lobbying fodder;
(2) Earns FOR FREE excellent coverage that Kathleen Sullivan can use to her benefit in the DeCSS hearings.
As a wonderful side benefit, the spin is amazingly beneficial.
No, RIAA, quite like past Republican Congressional majorities, has been its own worst enemy. By not knowing when to stop and regroup, it has set the stage to steal defeat from the jaws of victory. Even people who are rooting for RIAA principles, indeed, even strong IP advocates such as myself, have turned 180 degrees against them. They have taken, taken, taken and gained advantages they didn't deserve. Now, the pigs will pay for their avarice.
1) Judicially neutering it, either by judicial construction of its provisions that broaden its scope to permit free discussion and disclosure of the technology, or by finding broad constructions unconstitutional absent fair use provisions; or
2) Politically, by getting the Congress to change its mind and send RIAA home without its supper.
In view of the decreasing credibility of RIAA outside its spin rooms, and increasing interest by the public in Napster and its progeny, Congressmen and Senators are beginning to publicly suggest a substantial "rethink" of its provisions.
Until recently, folks have been pooh-poohing the alleged downside of the Act, suggesting that only the pirates or collaborators are getting nicked, and this has held sway in the halls of power; and in the halls of justice. The suggestion that mere enforcement of (or threats of enforcement of) DMCA provisions doesn't chill freedom of speech or sound academic freedoms (pointing to the so-called "research exception") has been set aside in the broader interest of "protecting artist incentives."
This can no longer occur without a substantial rebuttal.
Sure, I would have far preferred Professor Felton to cock a snoot at them, fight the good fight and win in the Supreme Court a great victory for us all. (Ultimately, I believe he must prevail on the merits -- his argument is even stronger than the one Kathleen Sullivan is going to make before the Second Circuit in the DeCSS case).
But this is just as well. Good lord, a Princeton professor being squelched from delivering a pure research paper already published and readily available on the internet? This is of enormous political advantage -- it will overwhelm the spinners, and perhaps be more valuable than anything else that could happen.
This is because it makes it enormously harder for folks to hand-wave the first amendment issues, and to show how ludicrously broader the DMCA is than any sound basis for Copyright incentives can justify.
In recent years, no good has ever occurred when the legislature has tried to "catch up" IP law to the present -- every time it has reduced to a handout to the politically powerful media lobbies. The formerly powerful library lobbies were bought off with express excemptions, and the traditional academic forces and liberal civil liberties organizations have not been so effective lobbying the increasingly Republican-controlled legislatures.
Now, there is real ammunition. New, more powerful constituencies are realizing their commercial well-being is being affected by the overbearing and overreaching exploitation of these laws well beyond the bounds of reason. And traditional civil liberties organizations are begining to make more sense to the public because of the "realness" of losing Napster, and the pretty decent story that Felton would make.
What's more, by complying with the law as outrageously asserted here, Felton can NEVER be cast as a pirate. He will be a poster-child for DMCA reform far more powerful than any limited victory he could win in court -- at best just a finding that a research scientist performing crypto research falls within the crypto research suggestion. That syllogism wouldn't be as big a win as the repeal or political neutering of DMCA.
So, despite the emotional letdown I feel, this is probably a Really Good Thing.(R) RIAA probably lost more by winning than they would have by losing.
I have never seen an employer deny a reasonable request to participate in non-competitive open source development. I had no problem arranging for this in my last transaction, even though I was hired in the capacity of an officer directing the entire R&D operation.
Just ask. Most any reasonable employer will agree.
Slashdot Mirror
This article discusses the February holding of the Fifth Circuit, and is just the latest incarnation of decades of case law addressing copyrightability of technical building codes. Similar cases dating back into the 80s have emerged from the Second, Eighth, Ninth and Eleventh Circuits.
My point here is not to argue that the result is a good one (I dislike this on public policy grounds for reasons similar to those laid forth elsewhere in this thread), but to suggest that this is hardly "the beginning of the end," or some new malevolence from the recently copyright-hungry courts. Since the 80's, this is how the law has shaken out on building codes. Over more than twenty years from the earliest opinions in this thread of which I am aware, the sky has not yet fallen.
For a really interesting (and I think sound) discussion of why the case has merit and failings, I suggest reading the opinion and dissent itself, but particularly the dissent. They can be found here. I am most impressed with Judge Little's argument that, once enacted into law, the words of a statute no longer serve just their expressive purposes, but are transmogrified into a functional idea. Clearly a bit too metaphysical for the Courts, but I anticipate that someday this notion may hold sway.
In the meanwhile, building contractors have hardly had difficulty getting their hands on the building codes. They are readily available, both at the county clerk's office and from the original standards organizations.
If, in fact, the parade of horribles had happened -- that is to say that the codes were not available to those who required them, republication would clearly have been fair use.
If you say so. For the record, this case has nothing to do with software patents. Reasonable people may disagree, but the broad consensus for hard science patents is that the patent system has superbly aided the flow of capital to technology intensive projects, and facilitated the broad disclosure and use of the same. Yes, of course, ANY RIGHTS AT ALL, tangible or intangible, property or personal integrity, will lead to disputes, and some plaintiffs are supposed to have lost -- one way to deter litigation is to adopt the simple rule:
All plaintiffs lose.
or its converse
All plaintiffs win.
Either rule leads to grave injustice. The absence of rights altogether leads to anarchy.
As I said, we have the worst system in the world, until you consider the alternatives.
Yeah, the legal system sucks. Its the worst system on Earth for resolving commercial disputes, until you consider the alternatives.
I agree that there are few things dumber for two brilliant CEO's to do than to conclude that their high-tech disputes must be resolved by six random people off the street.
But these CEO's reached that conclusion. There were mediations, arbitrations, all sorts of efforts made to help the parties find some middle ground. None was to be had.
One competitor thought the other had engaged in fraud, the other thought the first had stolen their property. Rather than hiring soldiers or private police, they hired lawyers.
Here the patent system did the right thing. Rambus appears entitled to the patents they had, and the defendants appear not to have infringed those patents. The legal system, apart from the patent system, found certain commercial conduct to be fraudulent. This may ultimately feedback to limit the enforceability of the patent, maybe not.
The system worked because it answered the parties questions after a fair process; questions they couldn't resolve any other way.
If you know a better way to assure these results are properly and fairly adjudicated, I'd love to hear what you have in mind.
Now you are running wildly afield of your original case. First, WIPO doesn't issue patents. The PCT grants no enforceable rights at all.
Second, I agree that not all nations issued patent to foreigners in the past. But the US (almost) always did so. Hence, the US was not china then, unless (using your standards) everyone was.
At any rate, none of this supports the historical revisionism of your initial post.
You are objectively wrong on this point, as wrong as can be. It is a matter of record that the jury made no finding that the patent was invalid. Period.
Even if the judge were to hold Rambus' conduct (which the jury DID hold to be fraudulent) sufficient to give rise to a declaratory judgment of unenforceability, AND even if the Federal Circuit were to reverse existing precedent on unenforceability, this would not support the preceding remark suggesting the patent should not have issued.
A patent is issued, or not, based solely on the state of the prior art. Period. The patent office can determine invalidity of a claim, but not unenforceability of a claim were a patent to be granted. The patent office is without statutory and constitutional authority to make determinations that any ancilliary conduct would give rise to unenforceability.
So, sorry, you're just wrong. The patent system worked fine.
I think this can be safely classified as a completely unexpected result. Careful, patent litigators. The sword you hold isn't just double-edged -- it's got no fuckin' handle either!
Not so unexpected. All one had to do was read the answer and summary judgment motions. Those arguments survived through trial for a reason.
It's been beaten to death on /. but the stupid patent laws have to go! This is at least a step in the right direction. I hope the trend continues.
Seems to me that the consensus here is that the patent system and courts worked just fine in this case.
I don't understand the logic here. Compaq and HP have contracts with their suppliers that specify that the suplier must comply with any and all applicable patents. Why does the fact that Compaq and HP have money make them liable for the actions of others?
If they made, used, sold, offered for sale or imported an infringing apparatus, they are liable to the plaintiff. Their contracts with other persons might give them a cause of action for indemnity or contribution (if collectible, of course), but that doesn't get them off the hook -- they still owe the plaintiff the dough, and if their indemnitors go under, they are stuck holding the bag.
Yes, this means an indemnification and hold harmless provision from an uncollectible poor guy is virtually meaningless in practice -- at best it may give the poor guy some deterrence.
Them's the breaks.
... in the context of my statements, yes. The point is, we respected U.S. patents, but not other nations', and as was common then, it wasn't easy (possible?) for non-citizens to get patents in the U.S. So, we happily se about copying stuff from overseas and selling it here and abroad. And the europeans complained about it.
I understand that the U.S. has had copyrights and patents since its inception. It wasn't the case, though, that we respected other countries' patents. And why should we have?
You seem to be under the false impression that nations enforce each other's patents. So far as I know, no nation has ever enforced the patents issued by another, then or now. (I am told there were a few sparse bilateral agreements that might be considered to be exceptions to this, but we would be quibbling if you were resting on those; the PCT and Paris conventions actually serve to disprove, rather than support, your point for patents).
Today, if I want to enforce my patent in the UK today, I must timely file a national application there, go through examination (at great expense, typically), perhaps face additional objections and make additional concessions to those made in the US prosecution. Only after my UK patent issues there would I have any enforceable rights. The same is true of any UK patent with respect to enforcement in the U.S.
So, I guess, the UK is still China. Hell, we all are.
The argument, however rhetorically powerful it may seem, fails because it contains a logical fallacy. The negation of a straw man does not prove the validity of another standard.
That dullard noninventions should be patented is an undeniable truth. So what? That is a straw man proposed by no one. However, this does not mean that a spark of genius is required. This is his fallacy.
Moreover, spark of genius is clearly not the standard. It suffices merely that differences between the claimed invention and the prior art would not have been obvious to a person of ordinary skill. And both the Congress and the Supreme Court has set that forth clear as glass. See 35 U.S.C. s. 103.
Indeed, more than thirty years before the excerpt proffered by the previous writer was penned, the Supreme Court established the obviousness standard that the modern statute now codifies. Hotchkiss v. Greenwood, 52 U.S. 248 (1851)("more ingenuity and skill . . . were required . . . than were possessed by an ordinary mechanic acquainted with the business").
If this standard, which has been in place for most of the past 200 years (there was a short-lived dalliance with a "flash of brilliance" standard, which was later repudiated), constitutes the "decline of our civilization," then we should embrace such decline, and keep it going for so long as we are able.
It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.
While the citation and volume reference is incorrect ("Atlantio," not "Atlantic"), the quote certainly is. No defender of the patent system would agree that patents should be issued to an invention that "would naturally and spontaneously occur to any skilled mechanic." This doesn't mean that any standard greater than unobviousness would be required. Unobviousness is the common law standard set years prior, later codified as 35 U.S.C. s. 103.
Finally, the author's largest logical leap was to tacitly assume that this particular patent isn't inventive. I invite the previous author to provide evidence of invalidating prior art that would make this particular form of permanent magnet obvious. The substance, if any, of that answer will clarify whether he was genuinely attempting to make a reasoned comment on the state of society, or was simply engaging in demagoguery.
No nation does.
Even given the broad multilateralism, you must apply for and receive a patent in each individual nation in which you would like to enforce a patent. The Patent Cooperation Treaty merely facilitates the process by assuring you a priority date based on your domestic filing for later-filed international applications.
Thus, I suppose, if we adopt the original poster's criteria, we might say that the US is still the China of the modern age, since we still do not enforce a single foreign patent. (On the other hand, a vast number of U.S. patents are regularly issued to foreign nationals, and we enoforce every one of those to the extent they are valid, just as we did way back in the 18th century.)
Interestingly, the U.S. was the "China" of its day when the country was first founded (with a little more freedom for its citizens, of course). Cheap manufacturing, a lack of regard for copyrights and patents from other countries. Plus, the U.S. defaulted on its debts quie a bit.
This is a wildly simplistic and misleading remark. Indeed, America's commitment to intellectual property protection is deep and longstanding.
Article I, Section 8 of the Constitution provides for a Copyright and Patent Act, and recognizing the importance of invention to the health of the new nation, the early Congresses made the enabling laws a key priority. That wasn't the earliest provisions either. Many (I don't know if it was all) of the states of the confederation each had patent systems and there were copyright-like protections available for works of authorship.
As to our being the "China" of the world, that's just wildly misleading. NO NATION AT THAT TIME gave broad reciprocity to the intellectual property laws of another. That sort of multi-nationalism didn't happen until the modern era, with the Paris and Berne conventions, and various other multilateral and bilateral trade agreements. Foreign nationals were permitted to obtain patents in some nation's patent systems, albeit with some prejudice and disadvantage. (There were some bilateral IP agreements dating back to the 18th century, but they were sparse and narrowly circumscribed, so I am informed.)
For the United States, it is true we didn't enforce English letters patent issued by King George and his predecessors. Guess what? We also stopped enforcing the tea tax acts and other British decrees and laws at that same time! You see, we just beat them in a war and became sovereign entities. We got to make up our own laws, just as they did.
After we resolved to replace the confederation to become one United States, we continued that practice. Guess what? They didn't enforce American patents either. Hey, were they China too?
The patent act provides that you can collect up to six (6) years of past patent infringement damages.
(1) is the reason. They are likely to be collectible even if the direct defendants go out of business or are not. Also, there may be a better claim for wider damages against the larger companies, based on the overall cost of their products.
In patent infringement cases, it simply doesn't matter whether they knew or should have known their conduct was infringing. Period. It is infringement simply to make, use, sell, offer to sell or import into the country any infringing article of manufacture. Strict liability, no state of mind required.
I would agree there is a distinction. I'm not sure the distinction makes a difference legally speaking.
Granting your argument, that still doesn't get you to the next step: that there is a difference that the law recognizes. The Copyright Act is pretty unforgiving in this regard, and the AHRA does not provide for distribution.
This is the tactical downside of sending demand letters. Depending how the letter is worded (and RIAA has been going more for subjective effect on the subject than legal benefit, based on the letters posted to the net), the letter doesn't create any meaningful downside for the prospective defendant, while giving the defendant options he didn't have before.
Aimster is, in effect, suing on the letter, saying it has created doubt as to the rights of the parties. Had RIAA sued, rather than sending a demand letter, it could have chosen its forum and venue, perhaps bringing the suit in the 9th Circuit -- and thereby getting all the benefit of the 9th Circuit Napster Opinion.
Because Aimster gets to pick the venue, this action is brought in New York, in the Second Circuit, and thus giving the P2P folks a second "byte" at the apple, getting to argue the Napster case pretty much afresh, perhaps obtaining a different result from the Second Circuit.
And the conflict between the Circuits would be a basis for review by the Supreme Court, so that the Court can ultimately determine whether it meant what it said in the Sony Betamax case.
Certainly not according to the Northern District Court of California and the 9th Circuit, who rejected this argument in Napster. In particular, the Courts read the rest of the statute, which they held excludes the use of a computer as a "recording device."
The AHRA argument was always Napster's weakest argument, even when used to justify personal use of the recordings and time sharing. There is further substantial authority that while AHRA provides for personal household use, it does not permit limitless sharing (distribution) of personal recordings with third parties.
once you consider what happened here. This is just what lawyers call a "narrowing of the issues," and hardly a dispositive ruling. The finding of no willful infringement probably stings, however.
Rambus had a bunch of patents. Threw 'em all at the defendants. Wouldn't agree to limit the number of patents or claims prior to trial. At trial, plaintiff only addressed a narrow number of claims in a few of the patents. [It would be advocacy suicide to try to prove up a zillion claims from a zillion patents].
Unsurprisingly, after plaintiff rested its case, the defendants moved to dismiss all the counts for all the patents on the grounds that Rambus didn't meet its burden of going forward. The judge agreed with respect to all the claims of some of the patents, and some of the claims of the remaining. But several patents, and many claims, remain.
A defendant needs to infringe but one claim of one patent to be liable for infringement and subject to an injunction.
So, after half a trial, we have narrowed the issue to the remaining claims. But defendant's position on liability remains just as precarious as before.
If you are found liable for willful infringement, as opposed to non-willful infringement, then the judge may enhance the computation of actual damages to an amount not exceeding thrice the actual damages; and in an exceptional case may grant to the plaintiff an award of attorney fees as well.
Right. Their license requires them to give notice concerning the "accounts" issue. It is the generally feeble efforts of MLB and similar sports organizations to hold on to what's left of the hot news exception.
Consult the Copyright Act, 17 U.S.C. s. 106, which provides that the copyright holder owns exclusive rights to reproduction and distribution. With respect to a copyrighted work directly from the original sheet music, a recording or a performance of a copyrighted work, if you record the tablature, and published that result, you have implicated both reproduction and distribution rights. There are some merger issues, but for many tunes, you will run into quite a few walls trying to defend on grounds of noninfringement.
A better claim might be fair use. Much depends on the particular facts of the case; the work, how much is taken; impact on the publishing marketplace; for what purposes the tablature was recorded, and so forth.
Nope. That was settled in the Motorola cases not too long ago. There is nothing copyrightable in the subject matter of a sporting event. Of course, you can't simply rebroadcast a particular sportscast, or use excerpts of the play by play commentary -- that (the photography and the content) is most certainly protected.
however, the subject matter of what is shown on the newscast -- that's no violation of copyright.
It remains to be seen, however, whether the common law action for misappropriation would apply. The law varies from state to state whether the action protects contemporaneous rebroadcast of "hot news." But that is another (really hypertechnical, but fun for geek lawyers) issue.
What is clear is that traditional sporting events, itself, is not likely to be protected by copyright. (There may be interesting issues in highly choreographed events, perhaps something like pro wrestlying).
I made similar observations yesterday when we first got the news. I feel more strongly today that this was the correct solution.
I disagree strongly with those who expressed disappointment with Felton's decision. While it is certainly true that Felton's case is awesomely strong if he were sued, both from the heart and on the merits, and that it would be a joy to see a DMCA anti-circumvention case with a highly sympathetic defendant, little would be gained. There are enormous constitutional issues here, and significant Copyright policy questions.
Had Felton continued, he would likely have argued: (1) there is a crypto research savings clause; (2) there are other defective issues with the plaintiff's case; and (3) even if there weren't, the first amendment would preclude the issue. 1 and 2 are close to drop dead wins for Felton in this case, and for that reason, the Courts will never, ever, ever reach the constitutional question. The most likely result is that the defendants would have prevailed, with the useless judicial precedent holding that the crypto research exception is an exception for crypto research.
Felton's case isn't a good test case, precisely because its a really, really good case. But by falling on his sword and LOSING a case he is likely to win, he does two enormously important things:
(1) Earns FOR FREE political capital for the anti-DMCA movement, providing opportunities for the handfull of Congressmen and Senators already leaning that way, and providing extraordinary lobbying fodder;
(2) Earns FOR FREE excellent coverage that Kathleen Sullivan can use to her benefit in the DeCSS hearings.
As a wonderful side benefit, the spin is amazingly beneficial.
No, RIAA, quite like past Republican Congressional majorities, has been its own worst enemy. By not knowing when to stop and regroup, it has set the stage to steal defeat from the jaws of victory. Even people who are rooting for RIAA principles, indeed, even strong IP advocates such as myself, have turned 180 degrees against them. They have taken, taken, taken and gained advantages they didn't deserve. Now, the pigs will pay for their avarice.
DMCA can only be defeated in two ways:
1) Judicially neutering it, either by judicial construction of its provisions that broaden its scope to permit free discussion and disclosure of the technology, or by finding broad constructions unconstitutional absent fair use provisions; or
2) Politically, by getting the Congress to change its mind and send RIAA home without its supper.
In view of the decreasing credibility of RIAA outside its spin rooms, and increasing interest by the public in Napster and its progeny, Congressmen and Senators are beginning to publicly suggest a substantial "rethink" of its provisions.
Until recently, folks have been pooh-poohing the alleged downside of the Act, suggesting that only the pirates or collaborators are getting nicked, and this has held sway in the halls of power; and in the halls of justice. The suggestion that mere enforcement of (or threats of enforcement of) DMCA provisions doesn't chill freedom of speech or sound academic freedoms (pointing to the so-called "research exception") has been set aside in the broader interest of "protecting artist incentives."
This can no longer occur without a substantial rebuttal.
Sure, I would have far preferred Professor Felton to cock a snoot at them, fight the good fight and win in the Supreme Court a great victory for us all. (Ultimately, I believe he must prevail on the merits -- his argument is even stronger than the one Kathleen Sullivan is going to make before the Second Circuit in the DeCSS case).
But this is just as well. Good lord, a Princeton professor being squelched from delivering a pure research paper already published and readily available on the internet? This is of enormous political advantage -- it will overwhelm the spinners, and perhaps be more valuable than anything else that could happen.
This is because it makes it enormously harder for folks to hand-wave the first amendment issues, and to show how ludicrously broader the DMCA is than any sound basis for Copyright incentives can justify.
In recent years, no good has ever occurred when the legislature has tried to "catch up" IP law to the present -- every time it has reduced to a handout to the politically powerful media lobbies. The formerly powerful library lobbies were bought off with express excemptions, and the traditional academic forces and liberal civil liberties organizations have not been so effective lobbying the increasingly Republican-controlled legislatures.
Now, there is real ammunition. New, more powerful constituencies are realizing their commercial well-being is being affected by the overbearing and overreaching exploitation of these laws well beyond the bounds of reason. And traditional civil liberties organizations are begining to make more sense to the public because of the "realness" of losing Napster, and the pretty decent story that Felton would make.
What's more, by complying with the law as outrageously asserted here, Felton can NEVER be cast as a pirate. He will be a poster-child for DMCA reform far more powerful than any limited victory he could win in court -- at best just a finding that a research scientist performing crypto research falls within the crypto research suggestion. That syllogism wouldn't be as big a win as the repeal or political neutering of DMCA.
So, despite the emotional letdown I feel, this is probably a Really Good Thing.(R) RIAA probably lost more by winning than they would have by losing.
I have never seen an employer deny a reasonable request to participate in non-competitive open source development. I had no problem arranging for this in my last transaction, even though I was hired in the capacity of an officer directing the entire R&D operation.
Just ask. Most any reasonable employer will agree.