The freedom of speech issue is consistently held on this forum, both by liberals and libertarian conservatives. You allege "cowardly and snakelike" inconsistencies, but none can be found here. Partisans of Slashdot here have consistently defended speech they loved as well as speech they have hated.
It would appear that it is the FreeRepublic, however, that has deviated from avowedly libertarian views by seeking court-ordered censorship of speech which they disdain, and not the denizens of Slashdot.
Brandeis had it right: the only proper remedy for bad speech is more and better speech. The marketplace of ideas does not require antitrust laws.
If actors, be they right-wing or left, cannot stand the heat of enlightened, reasoned argument and respond in kind, but must resort to hard-knocks battle tactics, this says more about the lack of intellectual quality of those positions than anything else.
Apparently these folks don't believe that freedom includes rights to free speech. Rather than competing in the marketplace of ideas, they apparently prefer to impose their own brand of free speech antitrust law.
I imagine that the defendant must have gone well beyond the pale for a court to grant such a motion. However, it is ironic that these folks couldn't themselves find more credible ways to monitor and moderate their own property.
Copyrights vest automatically upon the creation of a work, true. However, you cannot sue until you have registered the work, though you can register after an infringement to sue for the infringement. Finally, you can't get an award of fees or statutory damages unless you have registered the work.
The latter is everything in a low-budget case against a monied defendant. Everything.
The cost of registration is virtually nil once you know what you are doing. Learn what you are doing, and then do it often. It will give you power, and then you won't have to whine when someone beats up on you.
Yes, it costs a bit to file an action -- but not nearly as much as it costs to defend against a bad claim. This gives you a great hand at the settlement poker table. This makes it possible to win, even against a megacorp.
It is a combination of best practices, many of which will seem counterintutitive to we children of the "Mythical Man-Month," but which I have found to be remarkably powerful when used in combination.
Pair programming, combined with group ownership of code, combined with incremental design, combined with constant unit testing (writing tests hand-and-hand with code), combined with constant refactoring, combined with a 40-hour work week (really), and a host of other practices that, working together, seem to make a difference in significant development projects.
There is a wonderful series of books on this subject, authored by Kent Beck and others. You can find more at this web site.
The DMCA was far less relevant to this matter than the rest of Title 17 -- the Copyright Act itself. The problem here was that this guy just didn't do what he should have done to protect his work. Unless the asset was highly valuable after the fact, he is quite correct: it makes little sense to pursue a copyright action for an unregistered work. The problem wasn't that the laws failed him -- he just didn't take advantage of the laws.
As an IP attorney and computer lawyer, we \beat up on big companies for individuals and small companies all the time. And, from time to time, vice-versa. We also defend the little guy against an abusive big guy on the same terms. True, a monied litigant has advantages throughout America's courts -- this is hardly an issue unique to the Copyright Act. But the copyright Act is actually unique in that it is, by design, set up to provide powerful relief to underdogs with statutory damages that can include an award of attorney fees.
The idea is to have a strong case, and to be able to take good advantage of the remedies available to you under law.
This author did not.
One of the key mistakes he made, and this was huge, was to fail to register his valuable code, not with the "Patent Office" as he suggested, but rather with the Register of Copyrights at the Library of Congress. It costs so little, and the massive differences it makes in a litigation scenario are huge.
Although its best to consult with a competent legal counselor the first time, most copyrights can be self-registered at nominal cost. Most of what you need to know can be found at: the Copyright Office web site.
Registering a work prior to infringement entitles you to statutory damages, possible statutory punitive remedies and a likely award of attorney fees in a suitable case. What a difference this can make for the defendant when factoring the consequences of an action. The hammer of an award of attorney fees and damages determined by a jury (not necessarily related to the actual damages at all), shakes the concience of a large corporation where it matters -- at the level of the bean counters. Suddenly, it makes no good sense to rattle sabres: it becomes a losing proposition.
Similarly, a wise defendant can use the Copyright law provisions to her advantage, particularly by exploiting the offer of judgment provisions of the local rules.
The laws cut both ways, and of course a monied litigant will often have advantages under EVERY LAW ON THE BOOKS. But it is no surprise that the Copyright Act offered this guy little relief -- he had a bad case.
Of course, the 1-byte hashes, known to be hashes of one-byte only, permit an exhaustive search of an 8-bit space. In practice, does the AIM software query for 1-byte or 2-byte MD5's, or do they look for hashes that would be wider in nature?
Clearly all that is necessary (for now) is to make a working copy is to require the user to obtain a lawful copy of AIM, and compute the MD5's off of that copy.
An interesting question arises, however. What if instead of doing that, one produced a file comprising all possible checksums (huge, of course, but go with this for a moment)? Would distributing the MD5 database constitute a copyright infringement as an unlawful derivative work? How could it do so, if the MD5 is, by definition unreversable? Copyright only protects works fixed in tangible media and capable of reproduction in tangible form. There is no expressible content in the MD5 list. Perhaps. Perhaps. It would be a case of first impression, but a very interesting case.
Of course, the size issue is avoided simply by providing an AIM MD5 checksum server, giving the checksum as a function of the query. Who would want the exposure? Dunno, probably nobody in their sound mind. But what an interesting legal question.
it, unless you are absolutist about it. We have seen many people on Slashdot complaining loudly about First Amendment issues regarding intellectual property and encryption enforcement, but where are they today, when the opinion seems to call for a result of which they don't approve.
Mind you, I'm left of Che, and despise what these people did. On the other hand, I think Judge K (a Reagan appointee, highly conservative/libertarian politically, but a brilliant (and very funny!) jurist) got this one right. Slam-dunk, yes absoulutely, right.
You have every right in the world to make truthful statements in your own words free of intervention from the state, at least here in the United States. This right is fundamental, and guaranteed to all citizens.
You have every right to be offensive as hell, and even a bit dangerou in your speech, so long as you are not creating a real "clear and present danger," which is an enormous standard to overcome. Just as with the Nazis in Skokie decades ago, we must let hateful people be hateful, so long as they are not actually committing or clearly dangerously inciting a crime.
Of course the speech is hateful. Of course its invasive and intimidating. Of course.
But if we don't permit the speech we hate, we have no cause to support the speech we love.
Sue Napster? Hey, the Court has issued its injunction, and Napster has undertaken a good faith effort to comply, massively to Napster's detriment. RIAA wants more, and the more they ask for, the more they'll convince the judge that maybe she misjudged who are the guilty parties.
We have already pushed the bounds of Contributory Infringement well beyond credulity. The 9th Circuit requires a scienter-based (knowledge-based) standard for the injunction. What does a right to censor titles have to do with that? Now, RIAA wants the right to affirmatively ce\nsor p2p protocols. Just plain silly, and the Court should see right through this.
Unfortunately, while this gentleman has said all the right things, he has come off as being a little too biased towards the Slashdot community. I felt like I was listening to a "typical politician", even if that politician is perhaps refusing lobbies from entertainment corporations (it sure sounds like it).
Take a look at the roll calls for the DMCA. There really are no "typical politicians" taking the view Boucher espoused.
Before you can make a change in the Congress, you need to get some foothold, any foothold for your ideas. Kudos and hats off to Rep. Boucher, who not only seems to espouse the correct view, but is already taking meaningful action in support of those views.
Re:Its hard to take this kind of criticism serious
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That may be true for Linux, but a commercial OS (like OS X) has to have as few bugs as possible.
Exactly which company has ever complied with this standard, even for applications? Certainly, no major release of any Apple, Macintosh, IBM or other operating system with which I have worked has come close to that standard.
The perfect is the enemy of the good. You will wait forever if you insist on these ludicrous and unrealistic expectations.
Of course software should be bug-free. It can't be. Of course software should have as few bugs "as possible?" What is possible? Do we mean as few bugs as are possible after all testing and programming can be accomplished, without any desire to release a product on time? Or do we mean as few bugs as are possible after a reasonable Q/A process has identified known and outstanding problems?
EVERY major release of MacOS was feature-incomplete and had bugs. So what? Same is true of Microsoft, who couldn't even pretend the 3.X versions of Windows constituted an operating system, let alone a feature-complete bug-free (so far as possible) system. Windoze ME had 64K plus KNOWN bugs at release.
As I said, it is hard to take this kind of criticism seriously. Use REAL-WORLD standards, in REAL-WORLD environments, and call spades spades.
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
Reasonable people may differ on this point. Time will tell. So far as I can tell, even the public beta was, infinitely more accessible than any unix distribution that has ever existed.
Re:Its hard to take this kind of criticism serious
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That may be true for Linux, but a commercial OS (like OS X) has to have as few bugs as possible.
Exactly which company has ever complied with this standard, even for applications? Certainly, no major release of any Apple, Macintosh, IBM or other operating system with which I have worked has come close to that standard.
The perfect is the enemy of the good. You will wait forever if you insist on these ludicrous and unrealistic expectations.
Of course software should be bug-free. It can't be. Of course software should have as few bugs "as possible?" What is possible? Do we mean as few bugs as are possible after all testing and programming can be accomplished, without any desire to release a product on time? Or do we mean as few bugs as are possible after a reasonable Q/A process has identified known and outstanding problems?
EVERY major release of MacOS was feature-incomplete and had bugs. So what? Same is true of Microsoft, who couldn't even pretend the 3.X versions of Windows constituted an operating system, let alone a feature-complete bug-free (so far as possible) system. Windoze ME had 64K plus KNOWN bugs at release.
As I said, it is hard to take this kind of criticism seriously. Use REAL-WORLD standards, in REAL-WORLD environments, and call spades spades.
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
Reasonable people may differ on this point. Time will tell. So far as I can tell, even the public beta was, infinitely more accessible than any unix distribution that has ever existed.
Re:Its hard to take this kind of criticism serious
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I understand the sympathy you are expressing here. But, in the real world, where so many of us live, that's just the way it is.
Of course, every publisher aspires to perfection. Never forget, however, that the perfect is the enemy of the good. No Q/A process is limited to assuring installation and updating -- everyone checks everything. But checking doesn't fix bugs, fixing bugs doesn't fix bugs.
The reality is that operating systems don't work. Never has, never will. Many work well enough, and some are excellent. Pretending otherwise gets you to whining about something that never will, and never can be.
Which is why its hard to take this kind of criticism seriously.
Its hard to take this kind of criticism seriously
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What, a distribution CD-Rom for buggy software? First, all software of any complexity has bugs -- always. There are only three kinds of programs, those with bugs you knows about, those with bugs you don't know about, and those with both.
Fixes to software do not change this. A fix of a bug you know about can at best change a type A or type C program to a type B program.
Nobody has been in this business for very long who does not understand this.
So, the question isn't whether the distro is buggy -- the question is whether the distro works well enough that known bugs can be repaired by updaters, ideally through the network. If we can install it, boot it, get online, download the updaters, and run them, the distro did its job.
Physical distros serve two purposes -- (1) to serve as a token of ownership; and (2) to serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software.
I assume OSX, as delivered, will be a type C program. It will have bugs and megabugs. I also presume that Apple did sufficient Q/A to assure that the installation and updating processes will work. If so, thats all that it needs to be.
To the naysayers, what is the alternative? Can anyone suggest a fully-tested on-time bug-free distribution CD?
If you didn't sign a non-compete, they can't enforce it in some states, but might find some implied agreements in others. Only your lawyer knows for sure. In general, non-competes aren't ordinarily applied, since they violate public policy and implicate the 13th Amendment. Even signed non-competes are unenforceable in many cases. Your mileage may vary -- see a lawyer.
There have been interesting developments in the laws recently that have had similar impact however. The issue is confidentiality and trade secrecy. You don't need to sign an agreement to be bound by a duty to maintain confidentiality -- and an unsigned publicly known company policy followed by a subsequent receipt of a paycheck (i.e., you didn't quit immediately) can give rise to a duty to maintain secrecy. (Indeed, simply receiving information that you know or should have known to be a secret can give rise to such a duty).
What this means is that you cannot use or disclose the information without consent, else you risk liability for misappropriation. One remedy for misappropriation is an injunction.
All that is old news. Here's the recent (not really all that recent) development: You can sue and get an injunction not only against a misappropriation, but against a threatened misappropriation as well.
Courts have taken this language to mean that if you take a job where the "outing" of confidential information is "inevitable," that constitutes a threat, and entitles the former employer to an injunction.
The invevitable disclosure doctrine is way simplified as described here, but that's the gist of it. Again, it isn't everywhere, your mileage may vary. See a lawyer.
Actually its ASCAP thats one of the biggest companies that pays monies to lyricists, composers, etc., so RIAA would have to deal with them before anything is even created.
ASCAP doesn't license mechanical rights -- those are obtained directly from Harry Fox Agency, or via compulsory licenses, or both. ASCAP/BMI licenses performance rights, another thing entirely.
One can argue all day and night over the ethics of RIAA's actions, but most will fail when it all comes down to rights. RIAA has the rights to their controlled assets (music) and can do as they wish with it.
Nope. There's an important subtlety about intellectual property -- ownership of a copyright grants no right to do anything, just the right to exclude others from doing certain things. The exercise of these exclusive rights, either by a promise not to sue (a license grant) or filing an action for infringement are all that the owner can do, apart from outright assigning fo the asset interest .
In the case of a musical recording (termed in the law a "phonorecord"), there is always (unless in public domain) another, underlying copyright, owned not by the record industry, but by the composer, the right to the musical work. The former copyright is represented by the P-in-circle symbol, the latter by the C-in-circle symbol. RIAA gets from the C-in-circle owner a mechanical right, via the harry fox industry, to make a phonorecord from the original work. And RIAA's rights to exploit its P-in-circle rights are limited by its licenses from the C-in-circle owner.
In an interesting opinion, the Florida Supreme Court split 4-3, ultimately adopting the earlier Zeran decision. Most interesting was to read the 3-judge dissenters, who made an interesting argument. This shows how truly fragile merely statutory rights and safe harbors can be.
With all due respect, bunk! This is like saying that you don't need a lawyer at a closing for the sale of real estate, because if you need a lawyer, the house itself is suspect. Or like saying that you don't need to enter into a contract ever, because if you are memorializing an agreement, it presumes a lack of trust that precludes entering into it.
This isn't a question of trust, its a question of knowing what your rights are --having a reasonable amount of information-- when you go to a negotiation.
The author of the question needed a lawyer. This wasn't a question of trust by any stretch of the imagination, any more than his asking the question of the Slashdot community indicated he didn't trust his employer -- it was a question of knowing where he stood.
Without more details, the result may vary dramatically. The answer may vary from state to You may have no options at all, or may have several from which to choose. The only way to know for sure is to spend a few hours with a competent lawyer who knows what she is really doing -- expertise in computer law is essential.
This shouldn't require a lot of time to give you advise. And getting it right might matter a lot.
If your product isn't worth a few hours of a competent lawyer's time, you shouldn't waste too much time thinking about it.
Whether or not AIMSTER's practices complies with copyright law in a manner that precludes liability for copyright infringement (contributory or otherwise) via a network infrastructure, the trading of information on the network that is copyrighted will continue to be infringement, particularly under the recent 9th Circuit ruling, which held that space-shifting and sampling were not fair uses. Thus, we are still back to defending on the Napster theories, one way or the other.
As to being able to mush investigations into infringement, this seems an awful lot like legal voodoo to me. To say that the "network and software" are copyrighted does not make the encryption of data an anti-circumvention measure, and hence DMCA doesn't blast the investigators.
In short, I don't know enough about AIMSTER to pass upon whether they are, in fact, copyright compliant -- I hope so. But even if they are: (1) this doesn't protect its users from being nabbed for infringement; and (2) the encryption of the data doesn't appear to preclude reasonable investigation. At least, not based upon the information in the article alone.
Point 1 -- There was no confusion here. I addressed independently the question of Copyrights, pointing out that Copyright does not protect short sets of words, such as slogans and titles. I made no mentions of patents.
Point 2 -- of course they have filed applications (intent-to-use applications, BTW) outside their core business. This doesn't mean that: (1) they will obtain registration (for example, you can't protect an individual movie with a trademark, only a series of films); or (2) that even if they did obtain registration, that they are entitled to the use of the mark. (The number of movies sold beforehand incorporating the word Diablo, or its tranlsation, the Devil, are substantial). Finally, it is somewhat difficult to obtain registration of the word "Devil" or a foreign translation thereof, for a movie about devils. (Note that they have already tried once to get this registration, and abandoned it in order to try again).
Even if they could obtain good rights to claim the mark for the purpose of films of whatever kind they are making, this doesn't mean that titles incorporating the word Diablo or Devil are out-of-bounds. As described in my prior posting, the key issue, after providing good title, is to prove likelihood of confusion. Even INCONTESTABLE registrations still require a plaintiff to prove LOC.
Which brings me back, notwithstanding the two points you made, to the point made in my post. Focus on the issue of likelihood of confusion. The Diablo is in the details.
There's no copyright protection associated with a title, so the only legal theories left relate to unfair competition and trademark. The gravamen of these theories are likelihood of confusion -- that is, the commercial impression by a consumer in the relevant market. *
If there's LOC, then a plaintiff can win. If not, then a plaintiff cannot win.
This is why there can be ABC for a television network, ABC for a pizzeria chain and ABC for a chain of liquor stores. It is why Apple records and Apple computer can coexist. Nobody in the relevant markets would be confused by the usage. On the other hand, an Apple mainframe computer manufacturer would probably have quite a few problems as a defendant.
This is what a plaintiff would need to prove: that there is a likelihood that a movie named Diablo will confuse a consumer to think, wrongly, that Blizzard had created, been affiliated with or sponsored the film.
And you simply can't tell until something actually happens. I can envision facts where LOC would be virtually automatic, and circumstances where loc would be virtually impossible to show.
* I seriously doubt that Blizzard's Diablo mark has achieved the requisite amount of famousness to raise a claim based upon a dilution theory, but under today's cases, who knows? If so, then likelihood of dilution might also be relevant.
... but it is possible that you may have a fool for a client.
I leave you to rely upon your own legal advices, and at your own peril. The same argument can be made, and has been made, about open doors and keys and real property or automobiles; and about property that has been left alone for a brief time at airports. I can assure you that the law governing trespass, theft and implied consent in non-computer arenas is generally quite unkind to defendants -- and there are many an incarcerated felon who continues to grumble with remarks not substantially different from those you have made here.
This much is certain, you are not correct merely because you say so, and certainly not because you ended your posting with the term "duh!" Likewise, I may well be wrong in some cases, and perhaps not in others.
The trick is not to be the defendant in one of the others. Educate yourself, and be certain before you are sorry.
An undeniable, strong and powerful distinction can be made between an anonymous ftp account or a webserver on one hand, and a passworded system having known security bugs or easily guessable passwords on the other. Many skr1p7 k1dd135 feel that the latter are likewise invitations to plunder, but would be (and have been) laughed out of court on a defense based on that theory. Still others think that finding the "magic url" to breach into an intranet is legit, simply on the theory that it was permitted to be done -- this is a dangerous assumption.
The failure to password a portion of a system may or may not be an implied consent to plunder -- my suggestion is not to be wrong in assuming that it is. Be damned sure you are invited before you start taking data.
In particular cases, you might well not have committed a felony. Good for you. But in others, you may well have done something for which your life and liberty will later be in jeopardy.
Look, its entirely up to you to decide how you want to manage things -- but by all means have your a** well-covered when you do. Its a bad, bad idea to be your own lawyer, particularly when being wrong may cost you your life as you know it.
Slashdot Mirror
The freedom of speech issue is consistently held on this forum, both by liberals and libertarian conservatives. You allege "cowardly and snakelike" inconsistencies, but none can be found here. Partisans of Slashdot here have consistently defended speech they loved as well as speech they have hated.
It would appear that it is the FreeRepublic, however, that has deviated from avowedly libertarian views by seeking court-ordered censorship of speech which they disdain, and not the denizens of Slashdot.
Brandeis had it right: the only proper remedy for bad speech is more and better speech. The marketplace of ideas does not require antitrust laws.
If actors, be they right-wing or left, cannot stand the heat of enlightened, reasoned argument and respond in kind, but must resort to hard-knocks battle tactics, this says more about the lack of intellectual quality of those positions than anything else.
Apparently these folks don't believe that freedom includes rights to free speech. Rather than competing in the marketplace of ideas, they apparently prefer to impose their own brand of free speech antitrust law.
I imagine that the defendant must have gone well beyond the pale for a court to grant such a motion. However, it is ironic that these folks couldn't themselves find more credible ways to monitor and moderate their own property.
strike "bad claim" -- insert "sound claim"
Copyrights vest automatically upon the creation of a work, true. However, you cannot sue until you have registered the work, though you can register after an infringement to sue for the infringement. Finally, you can't get an award of fees or statutory damages unless you have registered the work.
The latter is everything in a low-budget case against a monied defendant. Everything.
The cost of registration is virtually nil once you know what you are doing. Learn what you are doing, and then do it often. It will give you power, and then you won't have to whine when someone beats up on you.
Yes, it costs a bit to file an action -- but not nearly as much as it costs to defend against a bad claim. This gives you a great hand at the settlement poker table. This makes it possible to win, even against a megacorp.
It is a combination of best practices, many of which will seem counterintutitive to we children of the "Mythical Man-Month," but which I have found to be remarkably powerful when used in combination.
Pair programming, combined with group ownership of code, combined with incremental design, combined with constant unit testing (writing tests hand-and-hand with code), combined with constant refactoring, combined with a 40-hour work week (really), and a host of other practices that, working together, seem to make a difference in significant development projects.
There is a wonderful series of books on this subject, authored by Kent Beck and others. You can find more at this web site.
The DMCA was far less relevant to this matter than the rest of Title 17 -- the Copyright Act itself. The problem here was that this guy just didn't do what he should have done to protect his work. Unless the asset was highly valuable after the fact, he is quite correct: it makes little sense to pursue a copyright action for an unregistered work. The problem wasn't that the laws failed him -- he just didn't take advantage of the laws.
As an IP attorney and computer lawyer, we \beat up on big companies for individuals and small companies all the time. And, from time to time, vice-versa. We also defend the little guy against an abusive big guy on the same terms. True, a monied litigant has advantages throughout America's courts -- this is hardly an issue unique to the Copyright Act. But the copyright Act is actually unique in that it is, by design, set up to provide powerful relief to underdogs with statutory damages that can include an award of attorney fees.
The idea is to have a strong case, and to be able to take good advantage of the remedies available to you under law.
This author did not.
One of the key mistakes he made, and this was huge, was to fail to register his valuable code, not with the "Patent Office" as he suggested, but rather with the Register of Copyrights at the Library of Congress. It costs so little, and the massive differences it makes in a litigation scenario are huge.
Although its best to consult with a competent legal counselor the first time, most copyrights can be self-registered at nominal cost. Most of what you need to know can be found at: the Copyright Office web site.
Registering a work prior to infringement entitles you to statutory damages, possible statutory punitive remedies and a likely award of attorney fees in a suitable case. What a difference this can make for the defendant when factoring the consequences of an action. The hammer of an award of attorney fees and damages determined by a jury (not necessarily related to the actual damages at all), shakes the concience of a large corporation where it matters -- at the level of the bean counters. Suddenly, it makes no good sense to rattle sabres: it becomes a losing proposition.
Similarly, a wise defendant can use the Copyright law provisions to her advantage, particularly by exploiting the offer of judgment provisions of the local rules.
The laws cut both ways, and of course a monied litigant will often have advantages under EVERY LAW ON THE BOOKS. But it is no surprise that the Copyright Act offered this guy little relief -- he had a bad case.
Of course, the 1-byte hashes, known to be hashes of one-byte only, permit an exhaustive search of an 8-bit space. In practice, does the AIM software query for 1-byte or 2-byte MD5's, or do they look for hashes that would be wider in nature?
Clearly all that is necessary (for now) is to make a working copy is to require the user to obtain a lawful copy of AIM, and compute the MD5's off of that copy.
An interesting question arises, however. What if instead of doing that, one produced a file comprising all possible checksums (huge, of course, but go with this for a moment)? Would distributing the MD5 database constitute a copyright infringement as an unlawful derivative work? How could it do so, if the MD5 is, by definition unreversable? Copyright only protects works fixed in tangible media and capable of reproduction in tangible form. There is no expressible content in the MD5 list. Perhaps. Perhaps. It would be a case of first impression, but a very interesting case.
Of course, the size issue is avoided simply by providing an AIM MD5 checksum server, giving the checksum as a function of the query. Who would want the exposure? Dunno, probably nobody in their sound mind. But what an interesting legal question.
it, unless you are absolutist about it. We have seen many people on Slashdot complaining loudly about First Amendment issues regarding intellectual property and encryption enforcement, but where are they today, when the opinion seems to call for a result of which they don't approve.
Mind you, I'm left of Che, and despise what these people did. On the other hand, I think Judge K (a Reagan appointee, highly conservative/libertarian politically, but a brilliant (and very funny!) jurist) got this one right. Slam-dunk, yes absoulutely, right.
You have every right in the world to make truthful statements in your own words free of intervention from the state, at least here in the United States. This right is fundamental, and guaranteed to all citizens.
You have every right to be offensive as hell, and even a bit dangerou in your speech, so long as you are not creating a real "clear and present danger," which is an enormous standard to overcome. Just as with the Nazis in Skokie decades ago, we must let hateful people be hateful, so long as they are not actually committing or clearly dangerously inciting a crime.
Of course the speech is hateful. Of course its invasive and intimidating. Of course.
But if we don't permit the speech we hate, we have no cause to support the speech we love.
Sue Napster? Hey, the Court has issued its injunction, and Napster has undertaken a good faith effort to comply, massively to Napster's detriment. RIAA wants more, and the more they ask for, the more they'll convince the judge that maybe she misjudged who are the guilty parties. We have already pushed the bounds of Contributory Infringement well beyond credulity. The 9th Circuit requires a scienter-based (knowledge-based) standard for the injunction. What does a right to censor titles have to do with that? Now, RIAA wants the right to affirmatively ce\nsor p2p protocols. Just plain silly, and the Court should see right through this.
Unfortunately, while this gentleman has said all the right things, he has come off as being a little too biased towards the Slashdot community. I felt like I was listening to a "typical politician", even if that politician is perhaps refusing lobbies from entertainment corporations (it sure sounds like it).
Take a look at the roll calls for the DMCA. There really are no "typical politicians" taking the view Boucher espoused.
Before you can make a change in the Congress, you need to get some foothold, any foothold for your ideas. Kudos and hats off to Rep. Boucher, who not only seems to espouse the correct view, but is already taking meaningful action in support of those views.
That may be true for Linux, but a commercial OS (like OS X) has to have as few bugs as possible.
Exactly which company has ever complied with this standard, even for applications? Certainly, no major release of any Apple, Macintosh, IBM or other operating system with which I have worked has come close to that standard.
The perfect is the enemy of the good. You will wait forever if you insist on these ludicrous and unrealistic expectations.
Of course software should be bug-free. It can't be. Of course software should have as few bugs "as possible?" What is possible? Do we mean as few bugs as are possible after all testing and programming can be accomplished, without any desire to release a product on time? Or do we mean as few bugs as are possible after a reasonable Q/A process has identified known and outstanding problems?
EVERY major release of MacOS was feature-incomplete and had bugs. So what? Same is true of Microsoft, who couldn't even pretend the 3.X versions of Windows constituted an operating system, let alone a feature-complete bug-free (so far as possible) system. Windoze ME had 64K plus KNOWN bugs at release.
As I said, it is hard to take this kind of criticism seriously. Use REAL-WORLD standards, in REAL-WORLD environments, and call spades spades.
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
Reasonable people may differ on this point. Time will tell. So far as I can tell, even the public beta was, infinitely more accessible than any unix distribution that has ever existed.
That may be true for Linux, but a commercial OS (like OS X) has to have as few bugs as possible.
Exactly which company has ever complied with this standard, even for applications? Certainly, no major release of any Apple, Macintosh, IBM or other operating system with which I have worked has come close to that standard.
The perfect is the enemy of the good. You will wait forever if you insist on these ludicrous and unrealistic expectations.
Of course software should be bug-free. It can't be. Of course software should have as few bugs "as possible?" What is possible? Do we mean as few bugs as are possible after all testing and programming can be accomplished, without any desire to release a product on time? Or do we mean as few bugs as are possible after a reasonable Q/A process has identified known and outstanding problems?
EVERY major release of MacOS was feature-incomplete and had bugs. So what? Same is true of Microsoft, who couldn't even pretend the 3.X versions of Windows constituted an operating system, let alone a feature-complete bug-free (so far as possible) system. Windoze ME had 64K plus KNOWN bugs at release.
As I said, it is hard to take this kind of criticism seriously. Use REAL-WORLD standards, in REAL-WORLD environments, and call spades spades.
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
That said, this release of OS X is not really intended for the average consumer (whatever that means); it's meant for people who pretty much know what they're doing with a computer. Those types will be much more likely to download OS updates than most, but it's still a falsity to say that the OS X CD's job is to "serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software."
Reasonable people may differ on this point. Time will tell. So far as I can tell, even the public beta was, infinitely more accessible than any unix distribution that has ever existed.
I understand the sympathy you are expressing here. But, in the real world, where so many of us live, that's just the way it is.
Of course, every publisher aspires to perfection. Never forget, however, that the perfect is the enemy of the good. No Q/A process is limited to assuring installation and updating -- everyone checks everything. But checking doesn't fix bugs, fixing bugs doesn't fix bugs.
The reality is that operating systems don't work. Never has, never will. Many work well enough, and some are excellent. Pretending otherwise gets you to whining about something that never will, and never can be.
Which is why its hard to take this kind of criticism seriously.
What, a distribution CD-Rom for buggy software? First, all software of any complexity has bugs -- always. There are only three kinds of programs, those with bugs you knows about, those with bugs you don't know about, and those with both.
Fixes to software do not change this. A fix of a bug you know about can at best change a type A or type C program to a type B program.
Nobody has been in this business for very long who does not understand this.
So, the question isn't whether the distro is buggy -- the question is whether the distro works well enough that known bugs can be repaired by updaters, ideally through the network. If we can install it, boot it, get online, download the updaters, and run them, the distro did its job.
Physical distros serve two purposes -- (1) to serve as a token of ownership; and (2) to serve as a vehicle to reduce the amount of time/bandwidth necessary to install the software.
I assume OSX, as delivered, will be a type C program. It will have bugs and megabugs. I also presume that Apple did sufficient Q/A to assure that the installation and updating processes will work. If so, thats all that it needs to be.
To the naysayers, what is the alternative? Can anyone suggest a fully-tested on-time bug-free distribution CD?
If you didn't sign a non-compete, they can't enforce it in some states, but might find some implied agreements in others. Only your lawyer knows for sure. In general, non-competes aren't ordinarily applied, since they violate public policy and implicate the 13th Amendment. Even signed non-competes are unenforceable in many cases. Your mileage may vary -- see a lawyer.
There have been interesting developments in the laws recently that have had similar impact however. The issue is confidentiality and trade secrecy. You don't need to sign an agreement to be bound by a duty to maintain confidentiality -- and an unsigned publicly known company policy followed by a subsequent receipt of a paycheck (i.e., you didn't quit immediately) can give rise to a duty to maintain secrecy. (Indeed, simply receiving information that you know or should have known to be a secret can give rise to such a duty).
What this means is that you cannot use or disclose the information without consent, else you risk liability for misappropriation. One remedy for misappropriation is an injunction.
All that is old news. Here's the recent (not really all that recent) development: You can sue and get an injunction not only against a misappropriation, but against a threatened misappropriation as well.
Courts have taken this language to mean that if you take a job where the "outing" of confidential information is "inevitable," that constitutes a threat, and entitles the former employer to an injunction.
The invevitable disclosure doctrine is way simplified as described here, but that's the gist of it. Again, it isn't everywhere, your mileage may vary. See a lawyer.
Actually its ASCAP thats one of the biggest companies that pays monies to lyricists, composers, etc., so RIAA would have to deal with them before anything is even created.
ASCAP doesn't license mechanical rights -- those are obtained directly from Harry Fox Agency, or via compulsory licenses, or both. ASCAP/BMI licenses performance rights, another thing entirely.
One can argue all day and night over the ethics of RIAA's actions, but most will fail when it all comes down to rights. RIAA has the rights to their controlled assets (music) and can do as they wish with it.
Nope. There's an important subtlety about intellectual property -- ownership of a copyright grants no right to do anything, just the right to exclude others from doing certain things. The exercise of these exclusive rights, either by a promise not to sue (a license grant) or filing an action for infringement are all that the owner can do, apart from outright assigning fo the asset interest .
In the case of a musical recording (termed in the law a "phonorecord"), there is always (unless in public domain) another, underlying copyright, owned not by the record industry, but by the composer, the right to the musical work. The former copyright is represented by the P-in-circle symbol, the latter by the C-in-circle symbol. RIAA gets from the C-in-circle owner a mechanical right, via the harry fox industry, to make a phonorecord from the original work. And RIAA's rights to exploit its P-in-circle rights are limited by its licenses from the C-in-circle owner.
In an interesting opinion, the Florida Supreme Court split 4-3, ultimately adopting the earlier Zeran decision. Most interesting was to read the 3-judge dissenters, who made an interesting argument. This shows how truly fragile merely statutory rights and safe harbors can be.
With all due respect, bunk! This is like saying that you don't need a lawyer at a closing for the sale of real estate, because if you need a lawyer, the house itself is suspect. Or like saying that you don't need to enter into a contract ever, because if you are memorializing an agreement, it presumes a lack of trust that precludes entering into it.
This isn't a question of trust, its a question of knowing what your rights are --having a reasonable amount of information-- when you go to a negotiation.
The author of the question needed a lawyer. This wasn't a question of trust by any stretch of the imagination, any more than his asking the question of the Slashdot community indicated he didn't trust his employer -- it was a question of knowing where he stood.
Without more details, the result may vary dramatically. The answer may vary from state to You may have no options at all, or may have several from which to choose. The only way to know for sure is to spend a few hours with a competent lawyer who knows what she is really doing -- expertise in computer law is essential.
This shouldn't require a lot of time to give you advise. And getting it right might matter a lot.
If your product isn't worth a few hours of a competent lawyer's time, you shouldn't waste too much time thinking about it.
Whether or not AIMSTER's practices complies with copyright law in a manner that precludes liability for copyright infringement (contributory or otherwise) via a network infrastructure, the trading of information on the network that is copyrighted will continue to be infringement, particularly under the recent 9th Circuit ruling, which held that space-shifting and sampling were not fair uses. Thus, we are still back to defending on the Napster theories, one way or the other.
As to being able to mush investigations into infringement, this seems an awful lot like legal voodoo to me. To say that the "network and software" are copyrighted does not make the encryption of data an anti-circumvention measure, and hence DMCA doesn't blast the investigators.
In short, I don't know enough about AIMSTER to pass upon whether they are, in fact, copyright compliant -- I hope so. But even if they are: (1) this doesn't protect its users from being nabbed for infringement; and (2) the encryption of the data doesn't appear to preclude reasonable investigation. At least, not based upon the information in the article alone.
Point 1 -- There was no confusion here. I addressed independently the question of Copyrights, pointing out that Copyright does not protect short sets of words, such as slogans and titles. I made no mentions of patents.
Point 2 -- of course they have filed applications (intent-to-use applications, BTW) outside their core business. This doesn't mean that: (1) they will obtain registration (for example, you can't protect an individual movie with a trademark, only a series of films); or (2) that even if they did obtain registration, that they are entitled to the use of the mark. (The number of movies sold beforehand incorporating the word Diablo, or its tranlsation, the Devil, are substantial). Finally, it is somewhat difficult to obtain registration of the word "Devil" or a foreign translation thereof, for a movie about devils. (Note that they have already tried once to get this registration, and abandoned it in order to try again).
Even if they could obtain good rights to claim the mark for the purpose of films of whatever kind they are making, this doesn't mean that titles incorporating the word Diablo or Devil are out-of-bounds. As described in my prior posting, the key issue, after providing good title, is to prove likelihood of confusion. Even INCONTESTABLE registrations still require a plaintiff to prove LOC.
Which brings me back, notwithstanding the two points you made, to the point made in my post. Focus on the issue of likelihood of confusion. The Diablo is in the details.
There's no copyright protection associated with a title, so the only legal theories left relate to unfair competition and trademark. The gravamen of these theories are likelihood of confusion -- that is, the commercial impression by a consumer in the relevant market. *
If there's LOC, then a plaintiff can win. If not, then a plaintiff cannot win.
This is why there can be ABC for a television network, ABC for a pizzeria chain and ABC for a chain of liquor stores. It is why Apple records and Apple computer can coexist. Nobody in the relevant markets would be confused by the usage. On the other hand, an Apple mainframe computer manufacturer would probably have quite a few problems as a defendant.
This is what a plaintiff would need to prove: that there is a likelihood that a movie named Diablo will confuse a consumer to think, wrongly, that Blizzard had created, been affiliated with or sponsored the film.
And you simply can't tell until something actually happens. I can envision facts where LOC would be virtually automatic, and circumstances where loc would be virtually impossible to show.
* I seriously doubt that Blizzard's Diablo mark has achieved the requisite amount of famousness to raise a claim based upon a dilution theory, but under today's cases, who knows? If so, then likelihood of dilution might also be relevant.
... but it is possible that you may have a fool for a client.
I leave you to rely upon your own legal advices, and at your own peril. The same argument can be made, and has been made, about open doors and keys and real property or automobiles; and about property that has been left alone for a brief time at airports. I can assure you that the law governing trespass, theft and implied consent in non-computer arenas is generally quite unkind to defendants -- and there are many an incarcerated felon who continues to grumble with remarks not substantially different from those you have made here.
This much is certain, you are not correct merely because you say so, and certainly not because you ended your posting with the term "duh!" Likewise, I may well be wrong in some cases, and perhaps not in others.
The trick is not to be the defendant in one of the others. Educate yourself, and be certain before you are sorry.
An undeniable, strong and powerful distinction can be made between an anonymous ftp account or a webserver on one hand, and a passworded system having known security bugs or easily guessable passwords on the other. Many skr1p7 k1dd135 feel that the latter are likewise invitations to plunder, but would be (and have been) laughed out of court on a defense based on that theory. Still others think that finding the "magic url" to breach into an intranet is legit, simply on the theory that it was permitted to be done -- this is a dangerous assumption.
The failure to password a portion of a system may or may not be an implied consent to plunder -- my suggestion is not to be wrong in assuming that it is. Be damned sure you are invited before you start taking data.
In particular cases, you might well not have committed a felony. Good for you. But in others, you may well have done something for which your life and liberty will later be in jeopardy.
Look, its entirely up to you to decide how you want to manage things -- but by all means have your a** well-covered when you do. Its a bad, bad idea to be your own lawyer, particularly when being wrong may cost you your life as you know it.
fewer and fewer