Some of the lessened market demand can be traced straight back to free software.
Certainly, there has always been a small segment of programmers (mostly system, development tools and database and network infrastructurel programmers) who were hired to provide the type of software that is open source code. However, so far as I can tell, there has been only an increase in demand (overall) for high-quality commercial software in that space, and one would suppose therefore, an increase in demand for best-of-breed programmers who practice that arcane business.
Notably, there is a lot of open source code, other than system-level and network operations code, out there, but very little of it is useful out-of-the-box for many applications, without --yes-- hiring coders to adapt it.
In other words, notwithstanding the large contribution of open source in some spaces, those simply weren't the spaces in which most programmers practiced. In the past, we weren't seeking people to HACK gcc and MySQL, but rather to use gcc and MySQL to implement business and enterprise applications. Open source was more a source of opportunities, at end, than it has been a drag on employment.
The problem isn't lack of jobs building development software, I think. Rather, it is the loss of jobs USING that software to implement business applications.
To people in the real world, this sounds crazy. To many of us in the geek world, it doesn't sound much saner. Arguing about what is the name of the thing and then what the name of the thing is called simply doesn't matter -- it doesn't make the software less free!
I can still get the code, modify it and distribute my changes. Who cares what I have to call it? This is a mode of embarassing political correctness -- there is a difference between standing on principles, and exploiting those principles to suit a petty and not terribly relevant political agenda. Debian has crossed the line.
Of course, Debian's policies and decisions "have teeth" only to the extent that software is removed from its distributions. That is fine, so far as it goes. However, when its exclusions are deemed incredible, irresponsible or unprincipled, sooner or later, people are going to become more concerneed, first in the real world and later in the geek world as well, about the lack of functionality of the product, and the reasons therefor.
I could care less what these products are called, and what I am privileged to call it. I understand and acknowledge that a reasonable amount of control is required for trademarks to assure that their goodwill is not diminished. I don't understand the objections, particularly since Debian's own guidelines appear to accept this.
In my view, this "debate" is petty and foolish, and it is a recipe for making the marginalization of "free software" advocates easier for those who oppose the movement. Sure, Debian can live without Apple and Mozilla -- but what about the rest of us, who now may be thinking to ourselves, "why should we?"
Debate yourselves into oblivion folks. Nobody understands this, not because they politically disagree with you, but rather because it is senseless.
If a court is going to invalidate evidence for lack of transparency, how about the most ridiculous candidate for secret, proprietary source codes: voting machines?
Apple does the bare minimum the LGPL requires with Webcore but the khtml devs accepted that.
No, let's be clear. Apple does ALL AND EVERYTHING that the LGPL requires. Implicit in your statement is the suggestion that free software can be free if it includes tacit, implied promises not to fork and to satisfy its authors with all its changes. That suggestion is flagrantly inconsistent with the notion of free software, in any sense.
Fundamental to the notion of free software is that its authors cannot limit the rights of others to access and modify the software. Forking is not a problem with free software, it is a feature.
Ordinarily forking *is* a problem for the community, when the initial developers are adequately satsifying the needs of the community as a whole and working well with others. But this is not always the case. Sometimes politics, legitimate and petty, and aesthetics, legitimate and ludicrous, gets in the way of good agile development. When that happens, the community may well be better served by a fork.
Apple and the Konqueror clan were not working well together, but both had important and significant constituencies to serve. It was either going to work or not, but neither Apple nor the clan "owned" this free software. In its feral state, BOTH were free to decide by what methodology development of their respective trees will proceed, what features the code will have and what will be the quality of that code.
Darwin (no pun intended) takes care of the rest.
Evolution by forking is not the preferable state of nature, but it happens when it needs to happen. And people will abandon what is useless and use what is important.
If, someday, there is actually a need to harmonize this code, it will be harmonized. Otherwise, it may well be for the best there was a fork. The problem that it is difficult to harmonize advances in one tree into another is salient, but it is not due to any malfeasance of anybody. Apple WAS FREE to do what it would with the code. And glory be for that... So, too, is the Konqueror clan, and glory be for that.
The remaining whines in the message are puerile. Don't like the doco or the coding style? Its free software, change it. Don't like the way others are working on the code? No problem, ignore them, and use the free software of the existing code. Got a feature you need? Great. Code it up. Don't want to? No problem, but why are you posting your gripes HERE?
Apple has a free software realationship with the K-clan. K-clan could work with them or not, and vice-versa. If it doesn't work out, so be it. The code is out there. It was built the way it was built, and people may use it or not. Nobody has a gripe, because it is free software -- if you don't like it -- change it.
Apple does the bare minimum the LGPL requires with Webcore but the khtml devs accepted that.
No, let's be clear. Apple does ALL AND EVERYTHING that the LGPL requires. Implicit in your statement is the suggestion that free software can be free if it includes tacit, implied promises not to fork and to satisfy its authors with all its changes. That suggestion is flagrantly inconsistent with the notion of free software, in any sense.
Fundamental to the notion of free software is that its authors cannot limit the rights of others to access and modify the software. Forking is not a problem with free software, it is a feature.
The extensions of time to file opposition are routine practices that can be achieved just by asking for them. They mean nothing at all.
It remains to be seen whether SPAM is sufficiently famous for purposes of dilution, and in view of the well-ingrained use for UCE, it can't be. When I hear "Spam" today, I very rarely think about the food product.
In any case, there is no risk of likelihood of confusion arising from DSPAM's commercial use -- nobody would assume affiliation. Moreover, there is danger in permitting Hormel to reappropriate a now-commonly used now-English word that they lost due to their negligence over year after year of inaction.
Xerox was at risk of genericide, and acted -- agressively. For Hormel, if there was ever a time to do it, it is probably too late. Time will tell.
The argument is ok so far as it goes, but it doesn't go very far at all.
Regrdless whether the plaintiff suffers any damages at all, and regardless whether the defendant obtains any unjust enrichment from the infringing content, a plaintiff may still elect to obtain statutory damages. The jury gets to determine the amount of statutory damages, but that determination can be no less than $750 PER WORK INFRINGED.
If you violate an exclusive right associated with a copyrighted work without consent, you are liable for infringement unless you have a defense. End of story. Commonly asserted exclusive rights are the rights to copy, to distribute and to make derivative works.
Thus, even private copying would be an infringement unless it were subject to a defense, such as fair use. Fair use is available for "time-shifting," as settled in the Betamax case. But it is probably not available for copying from a friend's library, and certainly not available for copying from a stranger's library.
Liability of the provider of peer-to-peer distribution technology:
Ordinarily, the provider in a p2p context doesn't actually copy or distribute, they merely facilitate the same by providing software, pointers and so forth. It is the end-users who do the direct infringing.
But studios typically go after the "enablers" anyway, on theories of secondary liability, such as contributory infringement (based on material contribution) and vicarious infringement (based on the relationship between the infringer and the enab lers). The law here is funky, but it seems to be divided between those who maintain some degree of control over how their services are used (old Napster) and those who don't (Grokster). We'll know a lot more about this after the Supreme Court decides the Grokster case.
Anyway, it is likley that the provider of both a.torrent and tracker server is probably closer to Napster than Grokster. Time will tell.
Ordinarily, estoppel refers to the process of affirmatively taking one position (for one purpose), and then another (for a second purpose). The law forces you to stick with your initial position, estopping you from taking a contrary view. There are other meanings as well (collateral estoppel, licensee estoppel, prosecution history estoppel), but none close to the notion you propose here.
On the other hand, the notion that rights can expire by sitting on them for too long has an equitable name (laches), although it usually requires decades of forebearance. Another, where your forebearance amounted to conduct upon which you can reasonably rely, is named acquiescence.
Apple's best defense, however, is probably noninfringement. Laches and acquiescence are tough rows to hoe, and don't always avoid an injunction going forward.
The delay here, a year of forebearance, is probably not a defense to a valid claim of infringement, but almost certainly is enough to avoid a preliminary injunction, which is the only meaningful relief Tiger might be seeking.
John correctly notes the limitations of visual whiz-bang, and properly observes the tendencies of publishers, even now, to rely on whiz-bang in lieu of game design. However forgivable this was in the days of Doom, and throughout the end of the twentieth century, where there were few idle cycles left after the whiz-bang to do anything else but count the dead, that simply is no longer so today. This criticism, however, is not new.
John makes the useful and valid observation that the problem with whiz-bang as an end is that whiz-bang does end have an end, an acme, or at the very least, a point of diminishing return. However, to say that the end of whiz-bang is the end of the craft of gaming, would be like saying that the advent of photography was the end of art.
There is where the criticism loses faith.
It really isn't the advent of near-photrealism that we are witnessing. Behind the metal, what we are seeing is the capacity to do pseudo-photorealism, sound and networking with cycles to spare -- LOTS of cycles. No more whiz-bang will matter, so then we get back to basics -- designing games with game, and using those cycles to make games whole again.
Then John will start to criticize the linearity of our games once more.
Truth to tell, I don't think game critics have been criticizing games enough. Wow, are they ever beautiful and immersive, but still, it has been years since a game caught my spirit the way they did in "the old days." On the otherhand, my preferred mode of art has always been more suggestive than representational. So, for me, the cartoon of a Super Mario 64 was always hotter and more interesting than more modern and specially graphics-hot games. For me, the depth of a solid, beautifully written text adventure or strategy game was always more compelling. I found multi-player games on PLATO more compelling than modern MMPORGs. The heat was worth looking at, but never kept me at the game. Forgive me, I'm a luddite.
Anyway, what John does not appear to recognize is that the acme of hardware assisted graphic heat does not signal the END of the game industry. Rather, it signals the BEGINNING of the next generation -- the epiphany that its time to put games back in games (something many designers knew well), but with the hardware and software capacity to be able to do it!
I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored
I am, of course, familiar with Flooks, as was Judge Rich, who by the way DRAFTED the Patent Act. He clearly did not ignore Flook, in State Street Bank, nor did the other judges on the panel. Flook, as well as the other Section 101 cases on point, which apparently YOU ignored, were expressly discussed and analyzed in the State Street Bank opinion, which is a matter of record and routinely available. A thoughtful reader may look there for the rebuttal to this one-sided and overly simplified argument.
The Judge in State Street Bank decided he wanted to revers established US patent law and force the US patent office to issue software patents (all the while the US patent office was arguing in court that software is not an invention and that the US patent office was going to be incapable of handling software patent in any reasonable manner) and the judge did so in violation of Supreme Court law and contrary to the patent laws of every other country on earth.
Hardly impressive argumentation, legal or otherwise. Is it your legal opinion that Flook somehow anticipated and overturned the later court's decision in Diamond v. Diehr? And you mind-melded with dearly departed Judge Rich to determine his intentions exactly when? Did you even read what you wrote, or are you just so committed to the result you would type anything to reach that conclusion?
And, by the way, let us assume you accurately characterized the USPTO's legal argument, what then? How is it possibly relevant (legally or AT ALL) what the PTO is capable of if the Congress passed a law stating that an applicant is entitled to the patent? Wouldn't the Court still be required to call the patent act as they saw it, regardless of this important practical issue?
I say the only reason the State Street Bank decision is still standing is because the US Supreme Court has been to busy with civil rights cases and unconstitutional law cases and hasn't taken the time to bump one of those important cases off the docket to review a stupid patent dispute in the last 24 years
Nah, more likely it is because no lawyer has filed a meaningful petition for cert, realizing that an argument such as the myopic one you presented would be laughed out of court.
Starting with the plain language of the Patent Act, Section 101 expressly and unambiguously provides protection for novel, useful and unobvious methods and apparatus. This is a powerful start for those who would take the opposite position. Against this is a small and certainly vague body of judge-made exclusions and exceptions, much of which came from pre-Federal Circuit district court and circuit court law of unclear relevance today. Some good and some bad for your position. The few cases most squarely on point -- and yes, the Supreme Court cases are controlling of course -- lead to varying conclusions and uncertain application.
Gottschalk and Parker are part of the story, but you can't discuss them in a vacuum, particularly without looking at the later Diamond v. Diehr case. An argument can be made for the position you are taking, but you didn't make it -- you certainly didn't make it persuasively to anyone not committed to one conclousion.
Software patents as subject matter is as well-settled today as the law is likely to be -- it would be a surprise, indeed, to see the Supreme Court look at this question again directly. More likely, some wild pure business method will come up, and then we may test the fringes of the rule, perhaps with dicta that may inform this question.
In my view, and it is mere speculation on my part -- albeit an informed speculation -- this issue will not likely be revisited seriously by the Courts at the level of the State Street or AT&T cases, at least not until the Congress amends the act in some way to address these issues first, for some of the reasons set forth here and others.
In the United States, before the State Street Bank case articulated the modern "tangible result" test, our jurisprudence excluded "pure" software as well, but it was a distinction without a difference. Under the test in Alapatt and other cases, so long as you articulated the program in technical terms, you had patentable subject matter. Thus, while you might not have been able to claim:
I claim a method for instructing a computer to perform the steps of A, B and C.
You could claim instead:
I claim a computer system including a general purpose computing component (and possibly other apparatus) and a stored program instructing the general purpose computing element to perform the steps of A, B and C.
or
I claim a medium for storing and retreiving information in electronic form, configured to permit retreival of instructions for a computer system (and possibly other apparatus) to perform the steps of of A, B and C.
While such legal niceties are interesting, they --and tests like them-- are mostly a distinction without a difference.
. . . is that they aren't contracts in the sense in which that term is used. However deeply you want to extend the metaphor (and reasonable people can do so to achieve any result they want in this dispute), you can never reach the conclusion that I have an actual, enforceable, obligation to do anything.
Sure, if there is a consensus that I am welching on the deal, those who share the consensus view will view me in ill-repute. This may have some coercive effect, but so the !@#!@# what? My view how to react to the greater society is entirely for me to decide.
As a lawyer in Florida, I am sometimes asked by the Court to defend pro bono a claim brought by one or more of these militia groups that have convened their own "Constitutional Courts" that issue "Judgments" which are then filed with the County Clerk as liens against a poor person's house. That's a little harder, but at the end of the day, it is a tempest in a teapot.
In short, the edicts of anyone for breach of social contract are made, perforce, by courts of incompetent jurisdiction.
Accordingly, it isn't work arguing about. Perhaps a social contract not to tivo past commercials is VIRTUALLY a contract. However, it isn't ACTUALLY, a contract -- so who cares?
Lies, damn lies and statistics. Nothing in the article supports the conclusions drawn in the squib, and the survey might not even support the statements in the article.
Surveys ask particular questions, and when properly conducted under certain assumptions, can yield statistical inferences about the behavior of a defined universe with respect to the questions asked. Done properly, they can offer remarkably good insight about a population at large.
Strike any of the assumptions, however, they are meaningless numbers, reflecting only a census of the narrow population that was actually polled, permitting no meaningful inferences about larger populations.
But in any case, even where the survey is properly conducted and permits inferences about the attitude of a broader population, the results of the survey are only the inferences concerning the QUESTIONS THE SURVEY ASKED.
And even so, it is as important to consider questions not asked and to measure the impact of the question on the sample. Are there adequate controls.
Here, the article suggests that persons were asked, among others, whether bloggers should be permitted to publish personal information. Is that a question about privacy law or about blogs? Would the same persons, asked the same question answer the same or differently if the medium was a home newsletter, network news or a newspaper? Perhaps the censorship sought here is merely the publication of personal information regardless of medium. Would it matter if the material were itself newsworthy?
Absent scientific control questions, we'll never know. In any case, I saw nothing to suggest that a poll of consumers of a particular service using the questions asked without more would support the far-flung suggestion in the headline, the squib or een the article itself.
So you don't like lawyers -- what bearing does that have on the falseness of your proposition that the law permits a company to sue a person who publishes a PDF of a court document, merely because the company originally scanned the document? I suppose if you can't win a debate on the merits, and can't keep your words in your pants, this would be the best you can do. Anyway, as noted above, that proposition in your prior message, before you shifted and backpedaled, is unfounded and false.
Neither Groklaw nor Mead Data Central own judiical or any other public records. No cause of action exists for its "misappropriation." Neither are these records rare or hard to get for anybody who wants to try. If Groklaw can't stand them being used without its permission, its sole recourse is not to publish them. Duh.
It is hypocrisy in the extreme for Groklaw supporters who claim to appreciate IP minimalism to argue otherwise. Such a policy, were it the law, would be bad for IP policy, and bad for America
Now, in view of your last missive, it is clear that you are unperturbed by either the facts or the law -- and will continue in your tirade here regardless. So be it. Having made the point, this will be my last post in this thread.
The point is simply this:
Don't tread on my IP policy -- what you propose is not the law, and if it were, it would be worse, and far more radical, than even what SCO demands.
That is all well and good, but you did not address the fact that these companies will sue you if you take a file you bought from them and then resell it by undercutting their price.
Dream on. Of course I addressed it, and your repeating the contrary proposition doesn't make it true.
They won't sue, because they would lose, possibly facing sanctions. There exists no proprietary interest in a pdf scan of a court document. None. Bupkis. No cause of action, no actionable gripe. None. Get it?
Your argument is predicated completely on a fantasy.
There's not a single thing they can do, legally speaking, to prevent republication of these documents.
The legal basis for this has been spelled out, at length, before. Start with Feist. Review the museum cases. Lament, whine, gripe, but you are just plain wrong.
If you want to give a discourse on why the legal system enables them to do this, I am all ears.
It doesn't. Paper doesn't refuse ink, of course, and anybody can file an action any time they want. But rational people won't do it, because tough lawyers like me will grind them into the dirt when they try that.
But you seem to have this fantasy that court documents for current cases are hard to get, expensive or particularly valuable. Anybody can buy, for pennies, a Pacer account and can get electronic copies of most every document filed in a federal action sent to you by e-mail (actually, just the url to the pdf is mailed to you). You can then take the PDF acquired thereby and publish it and republish it at will.
A service that tried to provide less rights than that would go quickly out of business, even if they could try to enforce any contractual scheme they try to build around this.
There are commercial entities that scan in these documents and sell them. How do they charge for this? The existing framework gives them an ownership interest. If you do not think Groklaw is entitled to that same interest, I suggest you review the way the current legal system works!
I'm pretty clear how the current legal system works, and I am certain you are mistaken about it. Since Feist, the Supreme Court has made clear that uncopyrighted facts and uncopyrighted works are unprotectable by mere sweat of the brow. You can't protect non-trade secret data without copyright. You can't, I can't, and the people who sell scanned copies can't.
Why do you pay them? Because you want them, and you don't have them. That's all there is to it. Yes, there are a number of folks who think they are able to finesse the copyright act by using shrink wrap agreements during an act of publication, and yes, the Circuit courts have shown a split on it. This is what the Eighth Circuit is presently deliberating in the Blizzard v. Bnetd case as we speak.
Groklaw has no enforceable rights here, has not adequately protected such rights it may have in the most optimistic sceneario (which would be a dismal day for the open source community), and those who think otherwise are being disingenuous in the extreme about their beliefes and the benefit of open source software.
Do they believe it is appropriate to misuse the work of others? The Creative Commons License that Groklaw applies to it's material requires attribution. SCO is using copies without that attribution!
Look, you just can't have it both ways.
Either the provider of information gets to define society's use of it by click-wrap agreement, including towel-boy duties if the provider chooses, or they don't. Fair use and first sale rights be damned, the provider defines what is "appropriate" use and "misuse."
This is a @#$%$#% stupid battlefield, and it will bite the open source technology squarely in the butt. Were the the law and societal norm, free speech on the internet would quickly become a myth. Reviews describing or quoting from matter would become "misuse." Criticism of content would be "misuse." This message in reply to yours would be "misuse."
Better to limit proprietary rights to things that are protectible, and subject to the limitations provided under the copyright. This becomes the limit of the metes and bounds of what can be licensed, whether with a popular license like GPL or CCL, or otherwise.
Too many of us have fought too hard for your rights for too long to see you piss it away with ridiculous Jackboot suggestions that the --omigosh are you really suggesting this?????-- use of scanned-in public documents without consent of the scanner is a "misuse?"
Stupid. S-t-u-p-i-d. Stupid policy. The worst argument we could be making. Awful. Dumb. Makes us the hypocrites dumb. Makes us trivially marginalized dumb. Lose the war dumb.
Make the argument, if you like, suggesting that you think it is "misuse" to distribute or redistribute scanned public documents. I will fight you tooth and nail, even if I have to defend the likes of SCO. And if, g-d forbid, you might win, I don't ever want to hear any whining about overreaching IP again -- you deserve all the bad policy Hollywood and Mead can lobby for.
It seems that the defenders of the holy IP principle have hoisted the skull and bones.
You are seriously claiming IP rights in the PDF scan of a public document, or comparing the conduct with the allegation of copyright infringement? Give me a break!
Either we are trying to provide a public service by making documents available to the public to lend more light than heat, or we are as bad as they are and just blowing smoke. Public service means the public as a whole -- including the bad guys.
Seriously, by making petty bullshit allegations of wrongdoing for doing the right thing -- disseminating public information -- we lie right down next to the thing we are supposedly demonizing.
Don't fight battles on the wrong playing fields. You should proudly point out they are beginning to appreciate our virtues, not suggest that they are doing the same thing they accuse us of doing. They aren't, and we're not.
It even avoided the U.S. "notice and takedown system" that has caused a big headache for U.S. ISPs. A good summary is available from Canadian law professor Michael Geist.
ISP's did not consider the notice and takedown system a headache -- they negotiated for the provisions as a condition of their patronage of the bill!
The reason is simple: ISPs NEVER have to be liable for infringement of its users. A service provider is not responsible for certain user infringements unless and until it receives notice. Then, it is absolutely free of liability (including liability to the user for wrongful takedown) if it takes down the noticed content.
I'm not saying its a good thing, mind you. I'm saying that ISPs bargained for and like these provisions.
Slashdot Mirror
Some of the lessened market demand can be traced straight back to free software.
Certainly, there has always been a small segment of programmers (mostly system, development tools and database and network infrastructurel programmers) who were hired to provide the type of software that is open source code. However, so far as I can tell, there has been only an increase in demand (overall) for high-quality commercial software in that space, and one would suppose therefore, an increase in demand for best-of-breed programmers who practice that arcane business.
Notably, there is a lot of open source code, other than system-level and network operations code, out there, but very little of it is useful out-of-the-box for many applications, without --yes-- hiring coders to adapt it.
In other words, notwithstanding the large contribution of open source in some spaces, those simply weren't the spaces in which most programmers practiced. In the past, we weren't seeking people to HACK gcc and MySQL, but rather to use gcc and MySQL to implement business and enterprise applications. Open source was more a source of opportunities, at end, than it has been a drag on employment.
The problem isn't lack of jobs building development software, I think. Rather, it is the loss of jobs USING that software to implement business applications.
for a web signup and free developer's membership at Apple.
Superman knew he could not change the future.
To people in the real world, this sounds crazy. To many of us in the geek world, it doesn't sound much saner. Arguing about what is the name of the thing and then what the name of the thing is called simply doesn't matter -- it doesn't make the software less free!
I can still get the code, modify it and distribute my changes. Who cares what I have to call it? This is a mode of embarassing political correctness -- there is a difference between standing on principles, and exploiting those principles to suit a petty and not terribly relevant political agenda. Debian has crossed the line.
Of course, Debian's policies and decisions "have teeth" only to the extent that software is removed from its distributions. That is fine, so far as it goes. However, when its exclusions are deemed incredible, irresponsible or unprincipled, sooner or later, people are going to become more concerneed, first in the real world and later in the geek world as well, about the lack of functionality of the product, and the reasons therefor.
I could care less what these products are called, and what I am privileged to call it. I understand and acknowledge that a reasonable amount of control is required for trademarks to assure that their goodwill is not diminished. I don't understand the objections, particularly since Debian's own guidelines appear to accept this.
In my view, this "debate" is petty and foolish, and it is a recipe for making the marginalization of "free software" advocates easier for those who oppose the movement. Sure, Debian can live without Apple and Mozilla -- but what about the rest of us, who now may be thinking to ourselves, "why should we?"
Debate yourselves into oblivion folks. Nobody understands this, not because they politically disagree with you, but rather because it is senseless.
Think about it: bottled water.
If a court is going to invalidate evidence for lack of transparency, how about the most ridiculous candidate for secret, proprietary source codes: voting machines?
one of the most ridiculous candidates for proprietary, closed-source code.
Apple does the bare minimum the LGPL requires with Webcore but the khtml devs accepted that.
No, let's be clear. Apple does ALL AND EVERYTHING that the LGPL requires. Implicit in your statement is the suggestion that free software can be free if it includes tacit, implied promises not to fork and to satisfy its authors with all its changes. That suggestion is flagrantly inconsistent with the notion of free software, in any sense.
Fundamental to the notion of free software is that its authors cannot limit the rights of others to access and modify the software. Forking is not a problem with free software, it is a feature.
Ordinarily forking *is* a problem for the community, when the initial developers are adequately satsifying the needs of the community as a whole and working well with others. But this is not always the case. Sometimes politics, legitimate and petty, and aesthetics, legitimate and ludicrous, gets in the way of good agile development. When that happens, the community may well be better served by a fork.
Apple and the Konqueror clan were not working well together, but both had important and significant constituencies to serve. It was either going to work or not, but neither Apple nor the clan "owned" this free software. In its feral state, BOTH were free to decide by what methodology development of their respective trees will proceed, what features the code will have and what will be the quality of that code.
Darwin (no pun intended) takes care of the rest.
Evolution by forking is not the preferable state of nature, but it happens when it needs to happen. And people will abandon what is useless and use what is important.
If, someday, there is actually a need to harmonize this code, it will be harmonized. Otherwise, it may well be for the best there was a fork. The problem that it is difficult to harmonize advances in one tree into another is salient, but it is not due to any malfeasance of anybody. Apple WAS FREE to do what it would with the code. And glory be for that... So, too, is the Konqueror clan, and glory be for that.
The remaining whines in the message are puerile. Don't like the doco or the coding style? Its free software, change it. Don't like the way others are working on the code? No problem, ignore them, and use the free software of the existing code. Got a feature you need? Great. Code it up. Don't want to? No problem, but why are you posting your gripes HERE?
Apple has a free software realationship with the K-clan. K-clan could work with them or not, and vice-versa. If it doesn't work out, so be it. The code is out there. It was built the way it was built, and people may use it or not. Nobody has a gripe, because it is free software -- if you don't like it -- change it.
Apple does the bare minimum the LGPL requires with Webcore but the khtml devs accepted that.
No, let's be clear. Apple does ALL AND EVERYTHING that the LGPL requires. Implicit in your statement is the suggestion that free software can be free if it includes tacit, implied promises not to fork and to satisfy its authors with all its changes. That suggestion is flagrantly inconsistent with the notion of free software, in any sense.
Fundamental to the notion of free software is that its authors cannot limit the rights of others to access and modify the software. Forking is not a problem with free software, it is a feature.
Ordinarily forking
The extensions of time to file opposition are routine practices that can be achieved just by asking for them. They mean nothing at all.
It remains to be seen whether SPAM is sufficiently famous for purposes of dilution, and in view of the well-ingrained use for UCE, it can't be. When I hear "Spam" today, I very rarely think about the food product.
In any case, there is no risk of likelihood of confusion arising from DSPAM's commercial use -- nobody would assume affiliation. Moreover, there is danger in permitting Hormel to reappropriate a now-commonly used now-English word that they lost due to their negligence over year after year of inaction.
Xerox was at risk of genericide, and acted -- agressively. For Hormel, if there was ever a time to do it, it is probably too late. Time will tell.
The argument is ok so far as it goes, but it doesn't go very far at all.
Regrdless whether the plaintiff suffers any damages at all, and regardless whether the defendant obtains any unjust enrichment from the infringing content, a plaintiff may still elect to obtain statutory damages. The jury gets to determine the amount of statutory damages, but that determination can be no less than $750 PER WORK INFRINGED.
This exceeds $5 per month.
Infringement of the End-User:
.torrent and tracker server is probably closer to Napster than Grokster. Time will tell.
If you violate an exclusive right associated with a copyrighted work without consent, you are liable for infringement unless you have a defense. End of story. Commonly asserted exclusive rights are the rights to copy, to distribute and to make derivative works.
Thus, even private copying would be an infringement unless it were subject to a defense, such as fair use. Fair use is available for "time-shifting," as settled in the Betamax case. But it is probably not available for copying from a friend's library, and certainly not available for copying from a stranger's library.
Liability of the provider of peer-to-peer distribution technology:
Ordinarily, the provider in a p2p context doesn't actually copy or distribute, they merely facilitate the same by providing software, pointers and so forth. It is the end-users who do the direct infringing.
But studios typically go after the "enablers" anyway, on theories of secondary liability, such as contributory infringement (based on material contribution) and vicarious infringement (based on the relationship between the infringer and the enab lers). The law here is funky, but it seems to be divided between those who maintain some degree of control over how their services are used (old Napster) and those who don't (Grokster). We'll know a lot more about this after the Supreme Court decides the Grokster case.
Anyway, it is likley that the provider of both a
Ordinarily, estoppel refers to the process of affirmatively taking one position (for one purpose), and then another (for a second purpose). The law forces you to stick with your initial position, estopping you from taking a contrary view. There are other meanings as well (collateral estoppel, licensee estoppel, prosecution history estoppel), but none close to the notion you propose here.
On the other hand, the notion that rights can expire by sitting on them for too long has an equitable name (laches), although it usually requires decades of forebearance. Another, where your forebearance amounted to conduct upon which you can reasonably rely, is named acquiescence.
Apple's best defense, however, is probably noninfringement. Laches and acquiescence are tough rows to hoe, and don't always avoid an injunction going forward.
The delay here, a year of forebearance, is probably not a defense to a valid claim of infringement, but almost certainly is enough to avoid a preliminary injunction, which is the only meaningful relief Tiger might be seeking.
John correctly notes the limitations of visual whiz-bang, and properly observes the tendencies of publishers, even now, to rely on whiz-bang in lieu of game design. However forgivable this was in the days of Doom, and throughout the end of the twentieth century, where there were few idle cycles left after the whiz-bang to do anything else but count the dead, that simply is no longer so today. This criticism, however, is not new.
John makes the useful and valid observation that the problem with whiz-bang as an end is that whiz-bang does end have an end, an acme, or at the very least, a point of diminishing return. However, to say that the end of whiz-bang is the end of the craft of gaming, would be like saying that the advent of photography was the end of art.
There is where the criticism loses faith.
It really isn't the advent of near-photrealism that we are witnessing. Behind the metal, what we are seeing is the capacity to do pseudo-photorealism, sound and networking with cycles to spare -- LOTS of cycles. No more whiz-bang will matter, so then we get back to basics -- designing games with game, and using those cycles to make games whole again.
Then John will start to criticize the linearity of our games once more.
Truth to tell, I don't think game critics have been criticizing games enough. Wow, are they ever beautiful and immersive, but still, it has been years since a game caught my spirit the way they did in "the old days." On the otherhand, my preferred mode of art has always been more suggestive than representational. So, for me, the cartoon of a Super Mario 64 was always hotter and more interesting than more modern and specially graphics-hot games. For me, the depth of a solid, beautifully written text adventure or strategy game was always more compelling. I found multi-player games on PLATO more compelling than modern MMPORGs. The heat was worth looking at, but never kept me at the game. Forgive me, I'm a luddite.
Anyway, what John does not appear to recognize is that the acme of hardware assisted graphic heat does not signal the END of the game industry. Rather, it signals the BEGINNING of the next generation -- the epiphany that its time to put games back in games (something many designers knew well), but with the hardware and software capacity to be able to do it!
I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored
I am, of course, familiar with Flooks, as was Judge Rich, who by the way DRAFTED the Patent Act. He clearly did not ignore Flook, in State Street Bank, nor did the other judges on the panel. Flook, as well as the other Section 101 cases on point, which apparently YOU ignored, were expressly discussed and analyzed in the State Street Bank opinion, which is a matter of record and routinely available. A thoughtful reader may look there for the rebuttal to this one-sided and overly simplified argument.
The Judge in State Street Bank decided he wanted to revers established US patent law and force the US patent office to issue software patents (all the while the US patent office was arguing in court that software is not an invention and that the US patent office was going to be incapable of handling software patent in any reasonable manner) and the judge did so in violation of Supreme Court law and contrary to the patent laws of every other country on earth.
Hardly impressive argumentation, legal or otherwise. Is it your legal opinion that Flook somehow anticipated and overturned the later court's decision in Diamond v. Diehr? And you mind-melded with dearly departed Judge Rich to determine his intentions exactly when? Did you even read what you wrote, or are you just so committed to the result you would type anything to reach that conclusion?
And, by the way, let us assume you accurately characterized the USPTO's legal argument, what then? How is it possibly relevant (legally or AT ALL) what the PTO is capable of if the Congress passed a law stating that an applicant is entitled to the patent? Wouldn't the Court still be required to call the patent act as they saw it, regardless of this important practical issue?
I say the only reason the State Street Bank decision is still standing is because the US Supreme Court has been to busy with civil rights cases and unconstitutional law cases and hasn't taken the time to bump one of those important cases off the docket to review a stupid patent dispute in the last 24 years
Nah, more likely it is because no lawyer has filed a meaningful petition for cert, realizing that an argument such as the myopic one you presented would be laughed out of court.
Starting with the plain language of the Patent Act, Section 101 expressly and unambiguously provides protection for novel, useful and unobvious methods and apparatus. This is a powerful start for those who would take the opposite position. Against this is a small and certainly vague body of judge-made exclusions and exceptions, much of which came from pre-Federal Circuit district court and circuit court law of unclear relevance today. Some good and some bad for your position. The few cases most squarely on point -- and yes, the Supreme Court cases are controlling of course -- lead to varying conclusions and uncertain application.
Gottschalk and Parker are part of the story, but you can't discuss them in a vacuum, particularly without looking at the later Diamond v. Diehr case. An argument can be made for the position you are taking, but you didn't make it -- you certainly didn't make it persuasively to anyone not committed to one conclousion.
Software patents as subject matter is as well-settled today as the law is likely to be -- it would be a surprise, indeed, to see the Supreme Court look at this question again directly. More likely, some wild pure business method will come up, and then we may test the fringes of the rule, perhaps with dicta that may inform this question.
In my view, and it is mere speculation on my part -- albeit an informed speculation -- this issue will not likely be revisited seriously by the Courts at the level of the State Street or AT&T cases, at least not until the Congress amends the act in some way to address these issues first, for some of the reasons set forth here and others.
In the United States, before the State Street Bank case articulated the modern "tangible result" test, our jurisprudence excluded "pure" software as well, but it was a distinction without a difference. Under the test in Alapatt and other cases, so long as you articulated the program in technical terms, you had patentable subject matter. Thus, while you might not have been able to claim:
I claim a method for instructing a computer to perform the steps of A, B and C.
You could claim instead:
I claim a computer system including a general purpose computing component (and possibly other apparatus) and a stored program instructing the general purpose computing element to perform the steps of A, B and C.
or
I claim a medium for storing and retreiving information in electronic form, configured to permit retreival of instructions for a computer system (and possibly other apparatus) to perform the steps of of A, B and C.
While such legal niceties are interesting, they --and tests like them-- are mostly a distinction without a difference.
. . . is that they aren't contracts in the sense in which that term is used. However deeply you want to extend the metaphor (and reasonable people can do so to achieve any result they want in this dispute), you can never reach the conclusion that I have an actual, enforceable, obligation to do anything.
Sure, if there is a consensus that I am welching on the deal, those who share the consensus view will view me in ill-repute. This may have some coercive effect, but so the !@#!@# what? My view how to react to the greater society is entirely for me to decide.
As a lawyer in Florida, I am sometimes asked by the Court to defend pro bono a claim brought by one or more of these militia groups that have convened their own "Constitutional Courts" that issue "Judgments" which are then filed with the County Clerk as liens against a poor person's house. That's a little harder, but at the end of the day, it is a tempest in a teapot.
In short, the edicts of anyone for breach of social contract are made, perforce, by courts of incompetent jurisdiction.
Accordingly, it isn't work arguing about. Perhaps a social contract not to tivo past commercials is VIRTUALLY a contract. However, it isn't ACTUALLY, a contract -- so who cares?
Another politician that thinks we need to reduce campaign regulation.
Wonder if he believes in freedom of speech for non-pols? Was he around when the votes came up for CDA and son-of? How did he vote?
Lies, damn lies and statistics. Nothing in the article supports the conclusions drawn in the squib, and the survey might not even support the statements in the article.
Surveys ask particular questions, and when properly conducted under certain assumptions, can yield statistical inferences about the behavior of a defined universe with respect to the questions asked. Done properly, they can offer remarkably good insight about a population at large.
Strike any of the assumptions, however, they are meaningless numbers, reflecting only a census of the narrow population that was actually polled, permitting no meaningful inferences about larger populations.
But in any case, even where the survey is properly conducted and permits inferences about the attitude of a broader population, the results of the survey are only the inferences concerning the QUESTIONS THE SURVEY ASKED.
And even so, it is as important to consider questions not asked and to measure the impact of the question on the sample. Are there adequate controls.
Here, the article suggests that persons were asked, among others, whether bloggers should be permitted to publish personal information. Is that a question about privacy law or about blogs? Would the same persons, asked the same question answer the same or differently if the medium was a home newsletter, network news or a newspaper? Perhaps the censorship sought here is merely the publication of personal information regardless of medium. Would it matter if the material were itself newsworthy?
Absent scientific control questions, we'll never know. In any case, I saw nothing to suggest that a poll of consumers of a particular service using the questions asked without more would support the far-flung suggestion in the headline, the squib or een the article itself.
So you don't like lawyers -- what bearing does that have on the falseness of your proposition that the law permits a company to sue a person who publishes a PDF of a court document, merely because the company originally scanned the document? I suppose if you can't win a debate on the merits, and can't keep your words in your pants, this would be the best you can do. Anyway, as noted above, that proposition in your prior message, before you shifted and backpedaled, is unfounded and false.
Neither Groklaw nor Mead Data Central own judiical or any other public records. No cause of action exists for its "misappropriation." Neither are these records rare or hard to get for anybody who wants to try. If Groklaw can't stand them being used without its permission, its sole recourse is not to publish them. Duh.
It is hypocrisy in the extreme for Groklaw supporters who claim to appreciate IP minimalism to argue otherwise. Such a policy, were it the law, would be bad for IP policy, and bad for America
Now, in view of your last missive, it is clear that you are unperturbed by either the facts or the law -- and will continue in your tirade here regardless. So be it. Having made the point, this will be my last post in this thread.
The point is simply this:
Don't tread on my IP policy -- what you propose is not the law, and if it were, it would be worse, and far more radical, than even what SCO demands.
That is all well and good, but you did not address the fact that these companies will sue you if you take a file you bought from them and then resell it by undercutting their price.
Dream on. Of course I addressed it, and your repeating the contrary proposition doesn't make it true.
They won't sue, because they would lose, possibly facing sanctions. There exists no proprietary interest in a pdf scan of a court document. None. Bupkis. No cause of action, no actionable gripe. None. Get it?
Your argument is predicated completely on a fantasy.
There's not a single thing they can do, legally speaking, to prevent republication of these documents.
The legal basis for this has been spelled out, at length, before. Start with Feist. Review the museum cases. Lament, whine, gripe, but you are just plain wrong.
If you want to give a discourse on why the legal system enables them to do this, I am all ears.
It doesn't. Paper doesn't refuse ink, of course, and anybody can file an action any time they want. But rational people won't do it, because tough lawyers like me will grind them into the dirt when they try that.
But you seem to have this fantasy that court documents for current cases are hard to get, expensive or particularly valuable. Anybody can buy, for pennies, a Pacer account and can get electronic copies of most every document filed in a federal action sent to you by e-mail (actually, just the url to the pdf is mailed to you). You can then take the PDF acquired thereby and publish it and republish it at will.
A service that tried to provide less rights than that would go quickly out of business, even if they could try to enforce any contractual scheme they try to build around this.
There are commercial entities that scan in these documents and sell them. How do they charge for this? The existing framework gives them an ownership interest. If you do not think Groklaw is entitled to that same interest, I suggest you review the way the current legal system works!
I'm pretty clear how the current legal system works, and I am certain you are mistaken about it. Since Feist, the Supreme Court has made clear that uncopyrighted facts and uncopyrighted works are unprotectable by mere sweat of the brow. You can't protect non-trade secret data without copyright. You can't, I can't, and the people who sell scanned copies can't.
Why do you pay them? Because you want them, and you don't have them. That's all there is to it. Yes, there are a number of folks who think they are able to finesse the copyright act by using shrink wrap agreements during an act of publication, and yes, the Circuit courts have shown a split on it. This is what the Eighth Circuit is presently deliberating in the Blizzard v. Bnetd case as we speak.
Groklaw has no enforceable rights here, has not adequately protected such rights it may have in the most optimistic sceneario (which would be a dismal day for the open source community), and those who think otherwise are being disingenuous in the extreme about their beliefes and the benefit of open source software.
Do they believe it is appropriate to misuse the work of others? The Creative Commons License that Groklaw applies to it's material requires attribution. SCO is using copies without that attribution!
Look, you just can't have it both ways.
Either the provider of information gets to define society's use of it by click-wrap agreement, including towel-boy duties if the provider chooses, or they don't. Fair use and first sale rights be damned, the provider defines what is "appropriate" use and "misuse."
This is a @#$%$#% stupid battlefield, and it will bite the open source technology squarely in the butt. Were the the law and societal norm, free speech on the internet would quickly become a myth. Reviews describing or quoting from matter would become "misuse." Criticism of content would be "misuse." This message in reply to yours would be "misuse."
Better to limit proprietary rights to things that are protectible, and subject to the limitations provided under the copyright. This becomes the limit of the metes and bounds of what can be licensed, whether with a popular license like GPL or CCL, or otherwise.
Too many of us have fought too hard for your rights for too long to see you piss it away with ridiculous Jackboot suggestions that the --omigosh are you really suggesting this?????-- use of scanned-in public documents without consent of the scanner is a "misuse?"
Stupid. S-t-u-p-i-d. Stupid policy. The worst argument we could be making. Awful. Dumb. Makes us the hypocrites dumb. Makes us trivially marginalized dumb. Lose the war dumb.
Make the argument, if you like, suggesting that you think it is "misuse" to distribute or redistribute scanned public documents. I will fight you tooth and nail, even if I have to defend the likes of SCO. And if, g-d forbid, you might win, I don't ever want to hear any whining about overreaching IP again -- you deserve all the bad policy Hollywood and Mead can lobby for.
It seems that the defenders of the holy IP principle have hoisted the skull and bones.
You are seriously claiming IP rights in the PDF scan of a public document, or comparing the conduct with the allegation of copyright infringement? Give me a break!
Either we are trying to provide a public service by making documents available to the public to lend more light than heat, or we are as bad as they are and just blowing smoke. Public service means the public as a whole -- including the bad guys.
Seriously, by making petty bullshit allegations of wrongdoing for doing the right thing -- disseminating public information -- we lie right down next to the thing we are supposedly demonizing.
Don't fight battles on the wrong playing fields. You should proudly point out they are beginning to appreciate our virtues, not suggest that they are doing the same thing they accuse us of doing. They aren't, and we're not.
It even avoided the U.S. "notice and takedown system" that has caused a big headache for U.S. ISPs. A good summary is available from Canadian law professor Michael Geist.
ISP's did not consider the notice and takedown system a headache -- they negotiated for the provisions as a condition of their patronage of the bill!
The reason is simple: ISPs NEVER have to be liable for infringement of its users. A service provider is not responsible for certain user infringements unless and until it receives notice. Then, it is absolutely free of liability (including liability to the user for wrongful takedown) if it takes down the noticed content.
I'm not saying its a good thing, mind you. I'm saying that ISPs bargained for and like these provisions.