? I will always churn out my half-assed attempts at web entertainment for no pay - I haven't seen a penny yet. Do it for the love, baby.
That's precisely the point. Very often what you get for free is worth pretty much what you paid for it. Few of us want "half-assed attempts" at content, so much as we want content -- and, quite frankly, not so many of us are all that interested in content. TV is still a very cost-effective medium for delivering content the hearts and minds of customers, and until the web turns from a cutesy giveaway of feeble stuff into a true, viable means for delivering content, the advertising dollars will go elsewhere -- the the well-entrenched "standard" media and the next "hot" new medium.
With all due respect, the market has a way of punishing bad content and rewarding the good. Not all of us share the whim of the market, but the problem with free content, particularly on a quality basis, is that it isn't subject to traditional market forces -- which is why we have so many "half-assed attempts" at content on the net.
There is much risk in this for the person taking the data. Most states have enacted felony statutes which precisely cater to this issue -- the taking of data from a computer system without being granted express permission to do so. While it may well be arguable that leaving a door open makes entry and taking of possessions a consented non-trespass, that isn't the law in any state of the Union. Whether or not the same rules would apply to the computer trespass statutes is something you would test at your own risk of life, limb and liberty.
Further, the scheme as described is useless as a substitute for Napster -- there would be no centralized index facilitating that distribution. Napster wasn't liable for the copying that took place -- it was liable for its contribution in facilitating the same as a result of uploading and maintaining dynamic index information (Contributory Infringement).
It could go either way, depending upon the details of your relationship with the persons for whom you were developing the software. Applicable law includes the Copyright Act work-made-for-hire provisions, the DFARS and any private law created by your contracts (written and oral).
The issues that need to be resolved first are (1) who is the owner of the software; (2) what licenses, express and implied were granted to the government, even if they didn't own it?
On the general facts, I can contemplate circumstances where any result is possible. You need a competent lawyer to sort them out for you.
The government isn't hopping so much on the side of big business, as it is defending the constitutionality of a legislative action. In a meaningful sense, a constitutional attack on a statute *IS* an attack on a legislative act, and thus the government tends to file, sometimes even lukewarm, briefs in support of statutes -- even when the policy of the statute is unconcionable.
In otherwords, a government brief in support of the constitutionality of a statute is a pretty routine act.
Still, I wish they had stayed out of this one. Their silence would have been deafening.
Cybercourt here is just a buzzword, used among governors and legislators for PR purposes, much as our marketroids have absconded with "object oriented" and "expert system." A state is sovereign only with respect to its territorial borders, and any extension of that jurisdiction is limited to specific constitutional constraints (under the Due Process Clause). Furthermore, nothing the State can do can extend that jurisdiction to the federal court subject matter that is most likely subject of much high-tech litigation (copyright, patents, trademarks, anti-trust), or to force jurisdiction where a litigant is lawfully entitled to remove to Federal Court.
That said, ARE THEY NUTS? Can you really, truly imagine that two litigants would find it a GOOD THING to have a complex, high-stakes lawsuit resolved by videoconference? Isn't it nuts enough that two businesses sophisticated enough to have a high-tech, high-stakes lawsuit believe that it would be better to pick six people off the street to resolve it than to settle the dispute themselves?
In Florida, we teleconference arraignments and some other criminal proceedings, as it is often more convenient to do things that way than to transport defendants from central booking just for an arraignment. Further, it is very common in preliminary hearings and motion practice for out-of-town or out-of-pocket lawyers to teleconference or videoconference?
But to hold an entire trial by videoconference? To ask a factfinder to judge the credibility of someone based upon their television appearance -- to permit a crafty lawyer to have "technical difficulties" just at the moment his client is losing it on the stand -- to permit all sorts of other mischief? Be real. The trial system is awkward enough as things stand. How does it benefit from being "cyberized?"
Common law adjudication, though it moves glacially at times, tends to adapt quite well and to yield just results in the end. While it took five or ten years to fully sort out the patent-like protections earlier courts gave to Copyrights, resulting in the very balanced and "almost-right" (Altai) measures of infringement used today, the Courts did that entirely on their own, with only an eighteen month period where anyone took "look and feel" Copyright claims seriously.
The latest string of cases result almost entirely from Congressional meddling in the general purpose acts. Regrettably, in overreaction to the suggestion that these "old laws are too out of date to work today," statutes like the NET act and the DMCA have modified Copyright law to become computer law -- and unsurprisingly a computer law that favors only the most powerful content-holders.
The law *IS* horribly unbalanced now that these laws have been passed. And virtually every time the Congress has considered the matter, things got worse. We were far better off letting the process work in its course through the slower, yet surer, vehicle of the common law.
It's not just tech-savvy. Judges also need to have substantial comprehension of a complex body of law, and its underlying policies. This is generally true of all areas, but most District Court and virutally all state court judges (outside of the Northern District of California, the Rocket Docket of Virginia and perhaps the Southern District of New York) have precious little understanding of the law. In practice, all they will have seen before making substantive decisions is a few 30-50 page briefs and perhaps some oral arguments regarding the same.
In the U.K., there are special trial courts for patent actions (although they use the same appellate courts). In the U.S., it is exactly the opposite, general trial courts and a specialized appellate bench.
As to providing "minimum educations" for a jury, that specific requirement, even of a literacy test, has been held unconstitutional.
The notion of using a special master to advise judges on particular technical or legal issues is hardly new. There is substantial case law suggesting that the appointment of a special master is within the sound discretion of the court (which means that the appointment, even over the objection of the parties, is reviewed solely for abuse of discretion).
Still the exercise of discretion generally requires the judge to consider the concerns of the parties. Just because AALS says an expert is unbiased, that representation would be unlikely to suffice. Further, even where there is a special master, each side is likely to produce its own experts, whose credentials and expertise may well impress the factfinder more than the remarks of the special master. The master serves as an aide to, and does not supplant, the judge, in any case.
Astute observers will note that a special master, Lessig, was appointed to advise the judge in U.S. v. Microsoft, although that particular appointment was something of a cause celebre.
what balance do you like best between plot and action
It is critical to recognize that the notion of "balancing" these issues is subtler than it may seem at first. Once can have a simulation, or one can have storytelling, but it is in fact virtually impossible to combine (balance) the two without just plain lying with the suggestion that you are doing either.
This is because both simulation and storytelling place an unreasonable constraint on how time is "delivered" to the player. A story requires some application of the Poetics, an approach to the delivery of characters, their relationships, the staging and timing of events, the building of conflicts between those elements, the lifting of tempo until a climax, AND THEN (you simply can't skimp on this), a solid and unsudden denoument to a close. Tempo --an issue that is far more important than sequencing-- is critical in this regard. To the extent that the storyteller cannot control how the "story time" gets allocated to the real time of the game experience, the storyteller cannot deliver the fiction.
On the other hand, a simulation requires that the user is able to dictate the tempo of matters. This ability to control the timing --even moreso than controlling the sequence-- of events is critical to the sense of interactivity felt by the user.
In short, these are issues that really can't be balanced in fact. You must always cheat storytelling significantly to do any simulating, and vice-versa.
This is not to say that virtually every game purporting to be "in genre" doesn't try to do this. What I am saying is that it can't be done actually, and that the true miracle of a great game is not the "balancing" of these issues, but rather the capacity to use theatrical devices, smoke and mirrors, to cloud the player into feeling or having the sense that a storytelling game is interactive, or that a simulation is storytelling. One of the devices used in this regard is precisely the notion mentioned above, giving the user more control of sequencing to make up for the lack of timing -- which is the real tradeoff that is typically made. The best, and most creative games, are not just those which provide non-linearity, but which combine nonlinearity with other, often subtle, devices that "fake out" the user into thinking she is playing one type of game when she is actually playing the others.
IMHO, although this is not always the rule, those games that attempted to "balance" storytelling and interactivity directly, by going back and forth between the two styles, seem to fail dismally on both counts. For example, cinematics, one of the classic game design "dodges," while utterly goregous in modern technology, seem to detract from, rather than enhance suspension of disbelief in the simulation portion of the game rather. I have seen it get better, but I think the reason we haven't seen it done "great" is that, perhaps, it can't be done at all directly. The "smoke and mirrors" theatrics, on the other hand, can make for truly great simulations or storytelling games, and seem to get far closer to the "ideal" of Interactive Fiction.
Play to your strengths, and not to your weaknesses. Just another view.
. . . that there are small points on which the district court opinion was quibbled with by the Circuit Court. But it is plain beyond cavil that these are not the most important issues.
If ultimately this case stands for the proposition that the defendant bears the burden of affirmatively enforcing against infringement at all costs, then what purpose is there of an indexing service? Sure, Napster doesn't have to look at the files -- but if it is obliged to cut off anyone who uses the same title and is slammed for not doing so, is that really "better" than the status quo?
ASCAP has a very long list of titles. Combine that with BMI and the Harry Fox Agency, and we have now shut down 100% of Napster -- including songs and records not owned by the plaintiff! By shifting the burden to the defendants, the value of indexing --being able to search by name-- is lost entirely. The fact that we can continue to have point-to-point transfers of code names "xyzzy" means "Stairway to heaven is of no utility without a codex. But the codex is now contributorially infringing.
This is the same as killing Napster -- even for real non-infringing uses, such as space-shifting.
No, Napster needed to win on the REAL issues -- contributory infringement under the Sony standard.
If they survive under a small amount of it, the entire net will be rendered more vulnerable, and services such as ftp, archie and veronica are next. To say nothing of web indexing, etc. . . .
You think DMCA demand letters are annoying now, just wait until the Napster letters start a-coming.
Sorry, this was a slam-dunk loss for Napster and the Net. Let's hope for a prompt review and reversal; or let's start lobbying and see just how serious Senator Hatch is about this stuff.
. . . that the procedural posture of this case is essential to reading the opinion. Napster is appealing the grant of a preliminary injunction based upon a thin evidentiary hearing. Even if 100% affirmed, both sides would then produce their evidence and plaintiff would still bear their burdens of proof at that trial. I disagree that the Circuit court really reversed anything here, except the threshold question whether the DMCA issue should be dismissed without proceeding on trial on the applicability questions.
The Circuit court, unfortunately in my view, suggested that serious issues were raised concerning the availability of the defense to Napster, which supports more than detracts, IMHO, from the defense at trial. I agree that DMCA may be all they have left, but this doesn't leave me feeling particularly happy about their chances under that defense.
I think Napster's best, perhaps only, reasonable chance is to get this opinion reversed on appeal, either directly or after a final judgment following trial. I don't know how much longer they can hold out, however.
Is there any word about timing concerning Judge Patel's scheduling of the remand hearings?
While the new standard promulgated by the Ninth Circuit, that Napster may be limited, but only when: (1) it receives reasonable knowledge of specific infringing files; (2) knows or should know that such files are available on Napster; ad (3) fails to act to prevent "viral distribution" of the works, may be perceived as something better than simply affirming the District Court, Napster lost big on virtually every key substantive issue:
(1) Affirmed finding of no fair use by users;
(2) Affirmed finding of no substantial noninfringing use;
(3) Affirmed finding that sampling is not fair use or a substantial noninfringing use;
(4) Affirmed finding that Space-shifting in Napster is not fair use or a substantial noninfringing use;
(5) Affirmed finding of material contribution and vicarious liability;
(6) Affirmed finding that AHRA doesn't help Napster;
(7) Affirmed finding that DMCA doesn't help Napster;
(8) Affirmed findings rejecting waiver and copyright misuse defenses;
(9)Affirmed finding that $5M bond for injunction is sufficient;
(10)Rejected Napster's argument that injunction is inappropriate remedy, that a compulsory royalty should instead be imposed.
In short, this sets up a very nice position for the Plaintiffs, and compromises substantially Defendant's main advantages.
I anticipate applying for en banc review and/or Supreme Court review by Napster -- I seriously doubt they can survive going to trial under this new set of legal standards.
In short, while Napster isn't shut down today, unless a change is due, the grim reaper may well come around tomorrow.
This is the stuff of which class action suits are made. If the conduct you experienced was a simple error, then that really should be the end of it.
However, if there actually is a broad, systemic and planned breach of contract (and with it, FTC violations for false advertising and the like), this would be bad. There are a host of firms, mostly in Illinois (don't ask me why), but they are anywhere, that do exclusively class action commercial work such as this. They go after large companies and chains who have engaged in penny-sales tax kiting, failure to pay small rebates and the like, and they get settlements.
Its no so much that the real plaintiffs get "justice," ultimately they end up getting at most what little bits they would have gotten before -- its that the companies are penalized, sometime severely, and thus dramatically deterred from their bad acting.
If you discover that this wasn't accidental, or that it seems to be happening with an unnatural frequency to you and others -- there are people who will happily work the problem without cost to you.
I have seen these assertions so many times before. If you are right, no problem, the patent is invalid and we are done. If "precisely this technique" has not been used before, however, further analysis (and therefore thought) is required.
And yes, virtually every patent adds elements to existing prior art. In all of these matters, the devil is in the details.
No, I won't hold my horses, because I've just read Claim 1 of patent 6,052,531. That claim is very general, and there is tons of prior art.
If what you say is true, and there's "tons of prior art" covered by the claim, what's the problem? Patent isn't valid -- go home. (Unless one of the dependent or narrower independent claims survives because there isn't the prior art to defeat it, in which case, what's the problem?) If what you say isn't true, and either the claim isn't valid or the art isn't there, what's the problem?
You can't read the claim in the abstract -- the terms are defined in and have meaning derived from the prosecution history and the specification. I don't know what does or does not infringe, and would never presume to know without more research and study. This much I do know -- its always best to wait and see before leaping to conclusions.
The claim does appear to be quite broad, I agree. "Update source" in the specification is defined as a server, but I don't think the term is unclear. The patches must have the required state properties, and be applied in the manner set forth in the claim, as those terms are defined in the spec. How they are construed for trial remains an open question, and it seems that those limitations will be key to any infringement litigation. However, any construction of these claims must be understood in the light that the patentee seems to distinguish CVS and related updating technologies in its discussion of the prior art:
Some computer software publishers update their software "applications" (computer programs and data files associated with the programs) frequently. For some types of software applications, such as virus protection software, these updates are particularly frequent. Virus protection software applications are designed to detect computer viruses on a computer system, and may also remove viruses which are found. An example of such a software application is Norton Anti-Virus, published by Symantec Corporation of Cupertino, Calif. Because these virus protection software applications rely on data about specific viruses, and new viruses are constantly being written to avoid current virus detection capabilities, it is necessary to update virus protection software applications on a regular basis to account for the newest viruses. Frequent updating of data files is also necessary for some database publishers, who must put up-to-date information in their databases, and remove obsolete information therefrom. Periodic updating of general software applications to expand capabilities and eliminate "bugs" is also common.
Currently, several methods are used to update software applications. The simplest of these is to distribute one entire software application to replace an older one. This method, the "full update" method, is simple, but expensive and inconvenient. Typically the software is distributed on some type of removable media, such as floppy disks or CD-ROMs, which are costly to produce and distribute. The time an end user must wait for the removable medium to arrive and the time it takes for the software application to install itself on a computer system are inconvenient. This inconvenience is compounded where updates occur frequently. Because of the large size of software applications it is generally not feasible to distribute such updates over computer networks, such as the Internet. When full updates are distributed over the Internet, they often cause such high loads on servers that other users suffer slow-downs on the network, and the servers have trouble meeting the demands.
In order to bypass many of the problems associated with this type of software updating, some software publishers distribute "incremental updates." These updates do not contain entire software applications, but rather only that information necessary to transform a given version of a software application to a newer version. Among the methods available to perform such incremental software updating is binary patching, performed by programs such as RTPatch, published by Pocket Soft, Inc. A binary patcher replaces only those binary bits of a software application which are different in a newer version. Because most software updates involve changes to only a small portion of a software application, a binary patcher needs, in addition to the old software application, only a small data file including the differences between the two versions. The smaller data files distributed for a binary patch update are often less than 1% of the size of a full update, taking advantage of the large amount of redundancy in the two versions.
The use of incremental update methods allows for smaller updates which can be distributed by means that are not conducive to the distribution of full updates, such as distribution over the Internet. The smaller incremental updates also make distribution by floppy disk more feasible where a full update would have required many disks, and an incremental update may require only one. However, incremental update methods introduce another problem: the incremental update is specifically useful for updating only one particular version of a software application to another particular version. When updates occur frequently, as with virus protection software applications, end users may often update from an arbitrarily old version to the newest version, skipping over several previously released versions. An incremental update for the newest version of a software application will update only from the most recent version, however.
One solution to this problem has been for software publishers to group a number of binary patch data files together into one distribution. The user of an arbitrarily old version can then apply each incremental update, one at a time, to update to the newest version. However, the number of incremental updates may be large, due to the fact that the grouping covers a large number of versions. The benefits of smaller distributed update files begin to disappear, as the size of the grouped-together incremental updates grows. This method of updating applications can also be cumbersome, as a series of update patches need to be selected from the group and applied to the software application one after another.
Another solution to the problem of incremental update version-specificity has been to create a unique patch file for transforming every previous version of the application to the most current version. Some users may not wish to update their software applications to the most current version, however, for a number of reasons. Some may be within a corporate setting, where an information services department allows updates only to versions it has had a chance to test and approve. Others may have older computer systems which do not support the increased resource requirements of the newest version of an application. For these reasons, publishers of software updates using this method must generally keep updates available from every previous version of an application to a large number of more recent versions. This results in a geometrically growing number of update patch files to produce, store and maintain for users. In the case of publishers who update their applications frequently, such as publishers of virus-protection software applications, this may quickly become untenable.
One alternative to the methods described above is the use of "push" technology, in which servers maintain databases of what versions of a software application each user has. The servers then send the necessary updates to each user, as they become available. This system requires "smart" servers, however, to monitor user configurations, determine what each user needs, and send the appropriate update information. This results in a server-intensive system which can cause a drain on server resources comparable to that experienced in the full update scheme, when many users are simultaneously requesting full updates.
What is needed is a system for updating software applications from an arbitrary first version to an arbitrary second version which does not require a large amount of information to be stored and maintained by a software publisher, does not require the user to acquire a large amount of data to perform such an update, and does not require the use of "smart" servers.
Although it wasn't rife with insight (not intended as a slight -- after all, what brilliancies can be deduced from the existence of the XFL anyway?), Jon did an excellent job. This was a pleasure to read.
These claims appear to be grounded in product configuration ("trade dress") law. To the extent that a system's overall ornamental, non-functional design is protectible (a big if, in view of recent Supreme Court law), Apple would be remiss for failing to enforce -- like trademarks, product configuration rights are linked to the association between the goodwill of the company and the product configuration.
If Apple fails to enforce rights now (presuming they do have such rights), they lose them later when Microsoft invades the product configuration.
Of course, there is no longer any possibility of arguing that a product configuration can be "inherently distinctive." Unless the design is of the kind that a reasonable customer would look at the design and say: "Oh, that's Apple's," because the product configuration is so linked with its source of origin, there can be no rights.
So, look at the art, and ask if you would associate the art with Apple. If such secondary meaning exists, Apple is in the right, and MUST enforce. If not, they're wrong, and in between, its a tough call.
If you do not enforce a patent, and allow an industry to build up around it, THEN try to enforce the patent you will get laughed out of court
That simply isn't the law. While the goodwill associated with a trademark can be destroyed (and thus with it the trademark) by failure to enforce, this is not true of Patent or Copyright rights.
While the patent act limits damages to conduct on or for the six years prior to the filing of a lawsuit, you can always seek damages for conduct within the limitations provisions, and obtain a prospective injunction.
This is not to say that non-enforcement doesn't have consequences. It may be grounds for precluding a preliminary injunction, and in some cases affrirmative conduct associated with non-enforcement can lead to defenses of implied license, estoppel or acquiescence.
IP is meant to protect the invention or writing of the inventor or author, respectively. This is done for the supposed benefits derived from giving this incentive, ultimately to promote the Sciences and the Useful Arts. [Sciences mean writings -- Useful Arts means inventions -- go figure!]
But great care must be taken to balance the grant of rights solely to serve those purposes. To this end, the Courts have assiduously avoided broadening the scope of remedies beyond the typical: measurable or statutory damages, and narrowly tailored injunctions to prevent infringement of the work (and nothing else).
My problem with DMCA is that it does not provide remedies focused on protecting the work itself, but rather on protecting something other than the work. In the DeCSS case, the defendant wasn't enjoined from copying or distributing the plaintiff's work -- he was enjoined from distributing his own original work.
That's where the first amendment is so deeply implicated -- this is original expression that is being stifled, allegedly in a good cause, but it is original expression that is being stifled. It is not derivative of the plaintiff's expression -- indeed, it is entirely unrelated.
So, current legal practice is very relevant to the current discussion. The very fact that the definitions of prior art for patent purposes are, as you keep pointing out, so narrow and that they are likely in disagreement with the intuitions of actual practitioners is an indication that the law and legal practice need to change.
Your claim is that the law is at variance from the uninformed intuition of what is the law. So what? This is true, to some extent, about almost EVERY substantive area of law. While it might seem nice if lawyers were not necessary to give sound legal advice through the mine fields of various areas of the law, there doesn't exist a developed nation that has figured out quite how to do that.
With respect to your suggestion about patent law, even if I were to grant your proposition, I seriously doubt that arguing that patent law is "counterintuitive" to some lay audiences would ever yield meaningful, or perhaps even positive, change by policymakers, who are far more concerned with far more practical issues.
At any rate, you are making an argument different from the original subject of this thread, which was the suggestion that a patent owned by Altavista somehow "covered" Archie -- by reference to the legal questions of validity and infringement. The article and responses made assertions about the legal validity of patents, and I responded to clarify the finer points of law.
You didn't find it relevant or interesting, but many others did. I agree that on Slashdot, we are free to argue what the law should be -- and to raise and debate questions of policy. Right on! However, it is silly to argue about what is the law, and to criticize what is the law, without knowing what is the law.
At any rate, it is long past time for us to simply agree to disagree, at least for this thread. Perhaps we can engage once more on the next substantive question.
I don't doubt that an informed discussion of policy is important. So is an informed discussion of the law supposedly supporting that policy.
A new idea, while patentable over prior art, can indeed infringe an existing claim. For example, imagine that the prior art is a patent on a chair, comprising a plurality of legs, a seat and a backrest.
Now, if you get this great idea that arcuate rockers affixed to the legs would make for a wonderful chair for grandparents, you can file a patent application for the rocking chair, comprising a seat, a backrest, a plurality of legs, and an arcuate rocker.
However, if your patent issued, this would not necessarily grant you the right to manufacture rocking chairs. It would permit you, however, to preclude anyone else from making, using or selling a rocking chair. If the chair patent were still in term, however, you would need a license to manufacture your own.
The usual scenario, unsurprisingly, is that cross-licenses are negotiated between the two patentees.
It seems to me that this underlies the most fundamental problem with how patents are used/granted: new patents can be granted that create only token differences from previous patents and/or prior art, while new ideas seem to infringe on previous patents even while they do add new features.
But it isn't the case. "Token" differences won't satisfy the unobviousness criteria, and new ideas, if indeed they are new, can't infringe an existing claim.
If you say so. In the package software industry, when customers stopped buying software with copy protection, in favor of software that didn't have copy protection. Businesses stopped using copy protection, except for those that died.
Businesses that engage in the practice of selling hardware that doesn't work and doesn't accept returns invite big Chicago law firms to do what they have done for years to great effect -- file national class action lawsuits that change the behavior of companies or cripple them.
Slashdot Mirror
? I will always churn out my half-assed attempts at web entertainment for no pay - I haven't seen a penny yet. Do it for the love, baby.
That's precisely the point. Very often what you get for free is worth pretty much what you paid for it. Few of us want "half-assed attempts" at content, so much as we want content -- and, quite frankly, not so many of us are all that interested in content. TV is still a very cost-effective medium for delivering content the hearts and minds of customers, and until the web turns from a cutesy giveaway of feeble stuff into a true, viable means for delivering content, the advertising dollars will go elsewhere -- the the well-entrenched "standard" media and the next "hot" new medium.
With all due respect, the market has a way of punishing bad content and rewarding the good. Not all of us share the whim of the market, but the problem with free content, particularly on a quality basis, is that it isn't subject to traditional market forces -- which is why we have so many "half-assed attempts" at content on the net.
There is much risk in this for the person taking the data. Most states have enacted felony statutes which precisely cater to this issue -- the taking of data from a computer system without being granted express permission to do so. While it may well be arguable that leaving a door open makes entry and taking of possessions a consented non-trespass, that isn't the law in any state of the Union. Whether or not the same rules would apply to the computer trespass statutes is something you would test at your own risk of life, limb and liberty.
Further, the scheme as described is useless as a substitute for Napster -- there would be no centralized index facilitating that distribution. Napster wasn't liable for the copying that took place -- it was liable for its contribution in facilitating the same as a result of uploading and maintaining dynamic index information (Contributory Infringement).
It could go either way, depending upon the details of your relationship with the persons for whom you were developing the software. Applicable law includes the Copyright Act work-made-for-hire provisions, the DFARS and any private law created by your contracts (written and oral).
The issues that need to be resolved first are (1) who is the owner of the software; (2) what licenses, express and implied were granted to the government, even if they didn't own it?
On the general facts, I can contemplate circumstances where any result is possible. You need a competent lawyer to sort them out for you.
The government isn't hopping so much on the side of big business, as it is defending the constitutionality of a legislative action. In a meaningful sense, a constitutional attack on a statute *IS* an attack on a legislative act, and thus the government tends to file, sometimes even lukewarm, briefs in support of statutes -- even when the policy of the statute is unconcionable.
In otherwords, a government brief in support of the constitutionality of a statute is a pretty routine act.
Still, I wish they had stayed out of this one. Their silence would have been deafening.
Cybercourt here is just a buzzword, used among governors and legislators for PR purposes, much as our marketroids have absconded with "object oriented" and "expert system." A state is sovereign only with respect to its territorial borders, and any extension of that jurisdiction is limited to specific constitutional constraints (under the Due Process Clause). Furthermore, nothing the State can do can extend that jurisdiction to the federal court subject matter that is most likely subject of much high-tech litigation (copyright, patents, trademarks, anti-trust), or to force jurisdiction where a litigant is lawfully entitled to remove to Federal Court.
That said, ARE THEY NUTS? Can you really, truly imagine that two litigants would find it a GOOD THING to have a complex, high-stakes lawsuit resolved by videoconference? Isn't it nuts enough that two businesses sophisticated enough to have a high-tech, high-stakes lawsuit believe that it would be better to pick six people off the street to resolve it than to settle the dispute themselves?
In Florida, we teleconference arraignments and some other criminal proceedings, as it is often more convenient to do things that way than to transport defendants from central booking just for an arraignment. Further, it is very common in preliminary hearings and motion practice for out-of-town or out-of-pocket lawyers to teleconference or videoconference?
But to hold an entire trial by videoconference? To ask a factfinder to judge the credibility of someone based upon their television appearance -- to permit a crafty lawyer to have "technical difficulties" just at the moment his client is losing it on the stand -- to permit all sorts of other mischief? Be real. The trial system is awkward enough as things stand. How does it benefit from being "cyberized?"
Common law adjudication, though it moves glacially at times, tends to adapt quite well and to yield just results in the end. While it took five or ten years to fully sort out the patent-like protections earlier courts gave to Copyrights, resulting in the very balanced and "almost-right" (Altai) measures of infringement used today, the Courts did that entirely on their own, with only an eighteen month period where anyone took "look and feel" Copyright claims seriously.
The latest string of cases result almost entirely from Congressional meddling in the general purpose acts. Regrettably, in overreaction to the suggestion that these "old laws are too out of date to work today," statutes like the NET act and the DMCA have modified Copyright law to become computer law -- and unsurprisingly a computer law that favors only the most powerful content-holders.
The law *IS* horribly unbalanced now that these laws have been passed. And virtually every time the Congress has considered the matter, things got worse. We were far better off letting the process work in its course through the slower, yet surer, vehicle of the common law.
It's not just tech-savvy. Judges also need to have substantial comprehension of a complex body of law, and its underlying policies. This is generally true of all areas, but most District Court and virutally all state court judges (outside of the Northern District of California, the Rocket Docket of Virginia and perhaps the Southern District of New York) have precious little understanding of the law. In practice, all they will have seen before making substantive decisions is a few 30-50 page briefs and perhaps some oral arguments regarding the same.
In the U.K., there are special trial courts for patent actions (although they use the same appellate courts). In the U.S., it is exactly the opposite, general trial courts and a specialized appellate bench.
As to providing "minimum educations" for a jury, that specific requirement, even of a literacy test, has been held unconstitutional.
The notion of using a special master to advise judges on particular technical or legal issues is hardly new. There is substantial case law suggesting that the appointment of a special master is within the sound discretion of the court (which means that the appointment, even over the objection of the parties, is reviewed solely for abuse of discretion).
Still the exercise of discretion generally requires the judge to consider the concerns of the parties. Just because AALS says an expert is unbiased, that representation would be unlikely to suffice. Further, even where there is a special master, each side is likely to produce its own experts, whose credentials and expertise may well impress the factfinder more than the remarks of the special master. The master serves as an aide to, and does not supplant, the judge, in any case.
Astute observers will note that a special master, Lessig, was appointed to advise the judge in U.S. v. Microsoft, although that particular appointment was something of a cause celebre.
what balance do you like best between plot and action
It is critical to recognize that the notion of "balancing" these issues is subtler than it may seem at first. Once can have a simulation, or one can have storytelling, but it is in fact virtually impossible to combine (balance) the two without just plain lying with the suggestion that you are doing either.
This is because both simulation and storytelling place an unreasonable constraint on how time is "delivered" to the player. A story requires some application of the Poetics, an approach to the delivery of characters, their relationships, the staging and timing of events, the building of conflicts between those elements, the lifting of tempo until a climax, AND THEN (you simply can't skimp on this), a solid and unsudden denoument to a close. Tempo --an issue that is far more important than sequencing-- is critical in this regard. To the extent that the storyteller cannot control how the "story time" gets allocated to the real time of the game experience, the storyteller cannot deliver the fiction.
On the other hand, a simulation requires that the user is able to dictate the tempo of matters. This ability to control the timing --even moreso than controlling the sequence-- of events is critical to the sense of interactivity felt by the user.
In short, these are issues that really can't be balanced in fact. You must always cheat storytelling significantly to do any simulating, and vice-versa.
This is not to say that virtually every game purporting to be "in genre" doesn't try to do this. What I am saying is that it can't be done actually, and that the true miracle of a great game is not the "balancing" of these issues, but rather the capacity to use theatrical devices, smoke and mirrors, to cloud the player into feeling or having the sense that a storytelling game is interactive, or that a simulation is storytelling. One of the devices used in this regard is precisely the notion mentioned above, giving the user more control of sequencing to make up for the lack of timing -- which is the real tradeoff that is typically made. The best, and most creative games, are not just those which provide non-linearity, but which combine nonlinearity with other, often subtle, devices that "fake out" the user into thinking she is playing one type of game when she is actually playing the others.
IMHO, although this is not always the rule, those games that attempted to "balance" storytelling and interactivity directly, by going back and forth between the two styles, seem to fail dismally on both counts. For example, cinematics, one of the classic game design "dodges," while utterly goregous in modern technology, seem to detract from, rather than enhance suspension of disbelief in the simulation portion of the game rather. I have seen it get better, but I think the reason we haven't seen it done "great" is that, perhaps, it can't be done at all directly. The "smoke and mirrors" theatrics, on the other hand, can make for truly great simulations or storytelling games, and seem to get far closer to the "ideal" of Interactive Fiction.
Play to your strengths, and not to your weaknesses. Just another view.
. . . that there are small points on which the district court opinion was quibbled with by the Circuit Court. But it is plain beyond cavil that these are not the most important issues.
If ultimately this case stands for the proposition that the defendant bears the burden of affirmatively enforcing against infringement at all costs, then what purpose is there of an indexing service? Sure, Napster doesn't have to look at the files -- but if it is obliged to cut off anyone who uses the same title and is slammed for not doing so, is that really "better" than the status quo?
ASCAP has a very long list of titles. Combine that with BMI and the Harry Fox Agency, and we have now shut down 100% of Napster -- including songs and records not owned by the plaintiff! By shifting the burden to the defendants, the value of indexing --being able to search by name-- is lost entirely. The fact that we can continue to have point-to-point transfers of code names "xyzzy" means "Stairway to heaven is of no utility without a codex. But the codex is now contributorially infringing.
This is the same as killing Napster -- even for real non-infringing uses, such as space-shifting.
No, Napster needed to win on the REAL issues -- contributory infringement under the Sony standard.
If they survive under a small amount of it, the entire net will be rendered more vulnerable, and services such as ftp, archie and veronica are next. To say nothing of web indexing, etc. . . .
You think DMCA demand letters are annoying now, just wait until the Napster letters start a-coming.
Sorry, this was a slam-dunk loss for Napster and the Net. Let's hope for a prompt review and reversal; or let's start lobbying and see just how serious Senator Hatch is about this stuff.
. . . that the procedural posture of this case is essential to reading the opinion. Napster is appealing the grant of a preliminary injunction based upon a thin evidentiary hearing. Even if 100% affirmed, both sides would then produce their evidence and plaintiff would still bear their burdens of proof at that trial. I disagree that the Circuit court really reversed anything here, except the threshold question whether the DMCA issue should be dismissed without proceeding on trial on the applicability questions.
The Circuit court, unfortunately in my view, suggested that serious issues were raised concerning the availability of the defense to Napster, which supports more than detracts, IMHO, from the defense at trial. I agree that DMCA may be all they have left, but this doesn't leave me feeling particularly happy about their chances under that defense.
I think Napster's best, perhaps only, reasonable chance is to get this opinion reversed on appeal, either directly or after a final judgment following trial. I don't know how much longer they can hold out, however.
Is there any word about timing concerning Judge Patel's scheduling of the remand hearings?
While the new standard promulgated by the Ninth Circuit, that Napster may be limited, but only when: (1) it receives reasonable knowledge of specific infringing files; (2) knows or should know that such files are available on Napster; ad (3) fails to act to prevent "viral distribution" of the works, may be perceived as something better than simply affirming the District Court, Napster lost big on virtually every key substantive issue:
(1) Affirmed finding of no fair use by users;
(2) Affirmed finding of no substantial noninfringing use;
(3) Affirmed finding that sampling is not fair use or a substantial noninfringing use;
(4) Affirmed finding that Space-shifting in Napster is not fair use or a substantial noninfringing use;
(5) Affirmed finding of material contribution and vicarious liability;
(6) Affirmed finding that AHRA doesn't help Napster;
(7) Affirmed finding that DMCA doesn't help Napster;
(8) Affirmed findings rejecting waiver and copyright misuse defenses;
(9)Affirmed finding that $5M bond for injunction is sufficient;
(10)Rejected Napster's argument that injunction is inappropriate remedy, that a compulsory royalty should instead be imposed.
In short, this sets up a very nice position for the Plaintiffs, and compromises substantially Defendant's main advantages.
I anticipate applying for en banc review and/or Supreme Court review by Napster -- I seriously doubt they can survive going to trial under this new set of legal standards.
In short, while Napster isn't shut down today, unless a change is due, the grim reaper may well come around tomorrow.
This is the stuff of which class action suits are made. If the conduct you experienced was a simple error, then that really should be the end of it.
However, if there actually is a broad, systemic and planned breach of contract (and with it, FTC violations for false advertising and the like), this would be bad. There are a host of firms, mostly in Illinois (don't ask me why), but they are anywhere, that do exclusively class action commercial work such as this. They go after large companies and chains who have engaged in penny-sales tax kiting, failure to pay small rebates and the like, and they get settlements.
Its no so much that the real plaintiffs get "justice," ultimately they end up getting at most what little bits they would have gotten before -- its that the companies are penalized, sometime severely, and thus dramatically deterred from their bad acting.
If you discover that this wasn't accidental, or that it seems to be happening with an unnatural frequency to you and others -- there are people who will happily work the problem without cost to you.
I have seen these assertions so many times before. If you are right, no problem, the patent is invalid and we are done. If "precisely this technique" has not been used before, however, further analysis (and therefore thought) is required.
And yes, virtually every patent adds elements to existing prior art. In all of these matters, the devil is in the details.
If what you say is true, and there's "tons of prior art" covered by the claim, what's the problem? Patent isn't valid -- go home. (Unless one of the dependent or narrower independent claims survives because there isn't the prior art to defeat it, in which case, what's the problem?) If what you say isn't true, and either the claim isn't valid or the art isn't there, what's the problem?
You can't read the claim in the abstract -- the terms are defined in and have meaning derived from the prosecution history and the specification. I don't know what does or does not infringe, and would never presume to know without more research and study. This much I do know -- its always best to wait and see before leaping to conclusions.
The claim does appear to be quite broad, I agree. "Update source" in the specification is defined as a server, but I don't think the term is unclear. The patches must have the required state properties, and be applied in the manner set forth in the claim, as those terms are defined in the spec. How they are construed for trial remains an open question, and it seems that those limitations will be key to any infringement litigation. However, any construction of these claims must be understood in the light that the patentee seems to distinguish CVS and related updating technologies in its discussion of the prior art:
Although it wasn't rife with insight (not intended as a slight -- after all, what brilliancies can be deduced from the existence of the XFL anyway?), Jon did an excellent job. This was a pleasure to read.
These claims appear to be grounded in product configuration ("trade dress") law. To the extent that a system's overall ornamental, non-functional design is protectible (a big if, in view of recent Supreme Court law), Apple would be remiss for failing to enforce -- like trademarks, product configuration rights are linked to the association between the goodwill of the company and the product configuration.
If Apple fails to enforce rights now (presuming they do have such rights), they lose them later when Microsoft invades the product configuration.
Of course, there is no longer any possibility of arguing that a product configuration can be "inherently distinctive." Unless the design is of the kind that a reasonable customer would look at the design and say: "Oh, that's Apple's," because the product configuration is so linked with its source of origin, there can be no rights.
So, look at the art, and ask if you would associate the art with Apple. If such secondary meaning exists, Apple is in the right, and MUST enforce. If not, they're wrong, and in between, its a tough call.
If you do not enforce a patent, and allow an industry to build up around it, THEN try to enforce the patent you will get laughed out of court That simply isn't the law. While the goodwill associated with a trademark can be destroyed (and thus with it the trademark) by failure to enforce, this is not true of Patent or Copyright rights. While the patent act limits damages to conduct on or for the six years prior to the filing of a lawsuit, you can always seek damages for conduct within the limitations provisions, and obtain a prospective injunction. This is not to say that non-enforcement doesn't have consequences. It may be grounds for precluding a preliminary injunction, and in some cases affrirmative conduct associated with non-enforcement can lead to defenses of implied license, estoppel or acquiescence.
so you say. cite the patent or hold your piece.
On second thought, it may be useful for you to wait to see if a bounty is posted.
Hey, if you have art prior to April 1997, now would be the time to cite it.
IP is meant to protect the invention or writing of the inventor or author, respectively. This is done for the supposed benefits derived from giving this incentive, ultimately to promote the Sciences and the Useful Arts. [Sciences mean writings -- Useful Arts means inventions -- go figure!]
But great care must be taken to balance the grant of rights solely to serve those purposes. To this end, the Courts have assiduously avoided broadening the scope of remedies beyond the typical: measurable or statutory damages, and narrowly tailored injunctions to prevent infringement of the work (and nothing else).
My problem with DMCA is that it does not provide remedies focused on protecting the work itself, but rather on protecting something other than the work. In the DeCSS case, the defendant wasn't enjoined from copying or distributing the plaintiff's work -- he was enjoined from distributing his own original work.
That's where the first amendment is so deeply implicated -- this is original expression that is being stifled, allegedly in a good cause, but it is original expression that is being stifled. It is not derivative of the plaintiff's expression -- indeed, it is entirely unrelated.
So, current legal practice is very relevant to the current discussion. The very fact that the definitions of prior art for patent purposes are, as you keep pointing out, so narrow and that they are likely in disagreement with the intuitions of actual practitioners is an indication that the law and legal practice need to change.
Your claim is that the law is at variance from the uninformed intuition of what is the law. So what? This is true, to some extent, about almost EVERY substantive area of law. While it might seem nice if lawyers were not necessary to give sound legal advice through the mine fields of various areas of the law, there doesn't exist a developed nation that has figured out quite how to do that.
With respect to your suggestion about patent law, even if I were to grant your proposition, I seriously doubt that arguing that patent law is "counterintuitive" to some lay audiences would ever yield meaningful, or perhaps even positive, change by policymakers, who are far more concerned with far more practical issues.
At any rate, you are making an argument different from the original subject of this thread, which was the suggestion that a patent owned by Altavista somehow "covered" Archie -- by reference to the legal questions of validity and infringement. The article and responses made assertions about the legal validity of patents, and I responded to clarify the finer points of law.
You didn't find it relevant or interesting, but many others did. I agree that on Slashdot, we are free to argue what the law should be -- and to raise and debate questions of policy. Right on! However, it is silly to argue about what is the law, and to criticize what is the law, without knowing what is the law.
At any rate, it is long past time for us to simply agree to disagree, at least for this thread. Perhaps we can engage once more on the next substantive question.
I don't doubt that an informed discussion of policy is important. So is an informed discussion of the law supposedly supporting that policy.
A new idea, while patentable over prior art, can indeed infringe an existing claim. For example, imagine that the prior art is a patent on a chair, comprising a plurality of legs, a seat and a backrest.
Now, if you get this great idea that arcuate rockers affixed to the legs would make for a wonderful chair for grandparents, you can file a patent application for the rocking chair, comprising a seat, a backrest, a plurality of legs, and an arcuate rocker.
However, if your patent issued, this would not necessarily grant you the right to manufacture rocking chairs. It would permit you, however, to preclude anyone else from making, using or selling a rocking chair. If the chair patent were still in term, however, you would need a license to manufacture your own.
The usual scenario, unsurprisingly, is that cross-licenses are negotiated between the two patentees.
It seems to me that this underlies the most fundamental problem with how patents are used/granted: new patents can be granted that create only token differences from previous patents and/or prior art, while new ideas seem to infringe on previous patents even while they do add new features.
But it isn't the case. "Token" differences won't satisfy the unobviousness criteria, and new ideas, if indeed they are new, can't infringe an existing claim.
If you say so. In the package software industry, when customers stopped buying software with copy protection, in favor of software that didn't have copy protection. Businesses stopped using copy protection, except for those that died.
Businesses that engage in the practice of selling hardware that doesn't work and doesn't accept returns invite big Chicago law firms to do what they have done for years to great effect -- file national class action lawsuits that change the behavior of companies or cripple them.