'Ease is never free: its gain is matched by a loss in choice, security, privacy, health, or a combination thereof,'
This all depends how that ease is obtained. This is no different from trading off power of a program against the speed or space resources it uses: of course you can make a program use fewer resources by making it do less. On the other hand, if done properly, you can often make it do *more* while using fewer resources.
Ease of use obtained by limiting your what you can do with the code, of course, necessarily makes this tradeoff, but that's just a straw man.
The difficulty of providing power while simultaneously delivering ease of use is overcome by excellent engineering. Real Ease of use obtained in modern software design is obtained by standardizing the general idioms with which many programs are to be used, and eliminating inconsistencies and awkward modalities that make software use more complex, not for the purpose of additional functionality -- but for the ease or ideosyncratic views of the programmer.
This latter "ease of use" actually empowers users, making it possible to do more, better and faster, without significant compromises.
Unlike the inherent conflicts between interactivity and fiction (where there is a true trade-off) one can at once offer a user consistency, elegance and power. It isn't as easy for the programmer to do this -- especially if the programmer is unfamiliar with user design issues -- but that isn't a relevant factor.
Ease of use is something for which we must constantly strive. Articles such as this simply offer lazy programmers excuses to rationalize shoddy engineering.
The current sharing model that Napster uses *is* illegal.
Of course this isn't the case, any more than ftp or the world wide web is illegal. The shared model may be legally used in various ways, and it is this capacity for legal use that makes Napster's conduct noncontributory, per the Sony Betamax case.
The Ninth Circuit has already stayed the injunction on the ground that there remained substantial questions on the form and the merits, and there are sound arguments (not addressed by the White House brief) why the judge's preliminary ruling should be overturned.
So relax, be cool, and don't presuppose the legal battle is lost. Time will tell.
Having failed to justify his claims for infringement, he backpedals, and adds the laughable racketeering claim. Even RIAA's lawyers didn't have the balls to make that pretense.
Clearly this troll seem to think that naked assertions are good substitutes for argument.
Reasonable people will study the applicable law and facts of the case and decide for themselves. Of course, the Courts will ultimately abritrate the matter. Thus, time will tell.
Since the troll seems to enjoy repeating himself in lieu of responding to my arguments on the merits or offering alternative citations to authority, I'll happily stand on what I have written and leave him or her the last word.
As noted, Gentle readers may decide for themselves.
Like it or not, the AHRA isn't Napster's best argument. The White House Brief, essentially aping the Plaintiff's brief, is pretty much on point. I think there are arguments for both sides concerning construction of the AHRA, and certainly, this argument is a fairly well-written account of the law.
But so what? AHRA is hardly Napster's only argument. The crux of Napster's case does not rely on AHRA or the DMCA "exceptions" -- it relies primarily on two key arguments, one hypertechnical, and the other a fairly clear slam-dunk from the Supreme Court opinion in the Betamax case.
The hypertechnical argument observes that the plaintiffs failed to identify (and provide registrations for) the Copyrights for which they seek relief. Under applicable statutory and case law, this should preclude relief. RIAA is seeking a special-purpose exception, so they can sue in the present "all-in-one" capacity. IMHO, they should be spanked for their arrogance. Real copyright lawyers routinely attach the certificates of registration to the complaint.
The sound argument lies in the fact that Napster isn't itself infringing directly any copyright of the plaintiffs -- a point conceded by the RIAA. RIAA argues instead that Napster has contributed to the infringement by all its naughty users.
However, the Supreme Court in Sony held that to be liable for contribution, one must use an apparatus not capable of a substantial noninfringing use. (Clearly Napster has the capability, for example, for distributing works for which the parties have permission to distribute; also, it is capable of facilitating space-shifting -- whether or not that is its "intended purpose" as some have argued.) The 9th circuit was spanked decades ago for adopting a "primary use" or "primary purpose" test, when the Supes reversed them in Sony -- and I suspect they are likely to look closely at the fact that this was PRECISELY the basis with which the District Court found liability.
So, let's not get too hasty. The W.H. may actually be making the right argument, and perhaps for the right reason -- perhaps not.
The 9th Circuit took the same view in Sony, adopting a "primary purpose" test. The Supes shot that down, and stated that to be free from liability for contribution, all that is necessary is that the process merely be capable of substantial noninfringing use. If Napster can be used lawfully, then unlawful use of Napster by others is irrelevant to NAPSTER's liability.
Clearly, Napster can be used lawfully. I can sell Shelly a pen, hoping and wishing and advising Shelly to go ahead an infringe your book, and still not be liable for infringement. Your remedy is against Shelly, if she does, and not me.
That's just the way it is. Sue Shelly and leave the pen manufacturers out of it.
Your bio says you are an intellectual property lawyer. It may be easy for an IP lawyer to fall in love with UCITA...though there are plenty of lawyers who haven't.
I wrote computer games long before becoming a lawyer, and have since left the law to make internet security appliances. You seem to think my background disqualifies me, and I'd like to think these combined credentials give me a fair perspective on things. Let's lose the ad hominems on either side and discuss these issues on the merits, OK?
None of your remarks address the point I made. While there may be sound arguments against UCITA -- and there are many points of UCITA with which I disagree -- none of them were raised by the ridiculous propositions that UCITA, and not present law, permits unenforceability of unconcionable and counter-policy laws; or even that such provisions are bad things.
You might be interested to know that it was precisely these grounds with which the only Circuit Court cases not enforcing a shrink-wrap agreement based their judgment. Leave those cases out, and you are stuck with Zeidenberg's 7th Circuit shrink-wrap-uber-alles opinion, and all that under the common law and the UCC!
Fair use is 'sharing with immediate family and friends.'
No, fair use is defined under 17 U.S.C. s. 107, and applicable case law. As between what you think it is, and what the Congress and Supreme Court think it is, well, let us let our colleagues decide.
In Sony, it was held that time-shifting was fair use, and precluded liability of the vendor of the VCR. In Diamond, it was held that space-shifting of MP3's is fair use, and precluded liability of the Rio. The Supreme Court has said that all that needs to be the case for Napster to prevail is that Napster be capable of some substantial noninfringing use. If so, it is irrelevant how much infringement is going on . . .
Ironically, in the Sony case, the Eleventh Circuit initially adopted a test very much like the one adopted here in Napster by the District Court -- the very test that the Supes rejected. While it is certainly an open question, and only time will tell, any learned student of the applicable law reading the briefs and the case law has to like Napster's chances.
2) It is only the injunction which has been stayed. It has not been remanded.
True. Time will tell how the Courts will treat the appeal. However, for an appellate court to stay a preliminary injunction, it must determine that the order below had serious questions both as to form and to the merits. And so the 11th Circuit found.
The remarks in the preceding appear to be trolling, but taking them on their face:
(1) Napster has NOTHING, really, to do with the conduct of its users. They are not parties to the suit. There is NO allegation in the complaint of direct infringement -- the sole Count (apart from an irrelevant state claim) is for contribution. The question is not whether two people using Napster to trade another's IP without fair use or consent is infringing -- on this point I agree with the troll. The relevant legal questions in this case (rather than the troll's straw man) are: (1) whether space-shifting is noninfringing conduct; and (2) whether Napster is, in fact, capable of substantial non-infringing use.
(2) At least one three-judge panel of the 9th Circuit has its doubts. The injunction was stayed in an order, finding substantial flaws, both in the form and the merits of the District Court opinion.
(3) The Supreme Court, whom I reasonably rely upon for constitutional advice when conflicting with the unsupported statements of a troll, knew full well the constitutional status of the Patent and Copyright Acts when it wrote the Sony opinion. Moreover, they recently held that the Amendments (including the First, Fifth and Eleventh) trump the Patent and Copyright Clause in the Florida College Prepaid and Seminole Tribe cases.
In short, I agree that Copyrights and Patents have special, indeed, constitutional status from Article I, Section 8. But so does every law passed under the Commerce clause! No provision of Article I creates a power in the Congress to block free speech. Period.
(3) You could easily count the aggregate number of people who have been jailed for copyright infringement on a hand or two. Thus, either there aren't that many "theives" [sic], or the troll is wrong.
Just crazy. (Actually, I don't think he is crazy -- merely unnecessarily dogmatic, and to the detriment of his stated cause and philosophy.)
But I just LOVE the anti-UCITA arguments made by folks who don't understand the law. While UCITA does have some provisions offensive to me, if these provisions are your lead concerns, well LOL. UCITA is no better or worse in this regard than the
This particular argument is one of the weakest reeds on which I have seen an anti-UCITA advocate lean.
For centuries, violations of fundamental public policies, and more recently, but for decades, unconscionability have been grounds for courts to void provisions of contracts. This is true not only of the common law, but also the fifty-year-old UCC, which is the statutory law most likely to apply in its absence.
Indeed, UCITA's provisions are somewhat better than prior law, in that they LIMIT the scope of discretion a court will have by more rigorously defining the notions and their application.
The only objection of RMS is against clause 7, the "State of Virginia"-clause. The strange thing is, this clause may not be applicable outside the US, so the license may be GPL-compatible outside the US after all. (Only lawyers can sort this out).
Nah, actually, once you have formation of contract under applicable law, remaining choice of law clauses are generally enforced, even in international scenarios. There are exceptions, but I don't see one here.
In this sense, the choice of law clause actually seems like a good idea. I think that RMS is troubled not by the idea of a choice of law clause per se, but by an ideological opposition to laws passed in some jurisdictions. The problem is, that he is not arguing his underlying opposition -- he is pretending that this is a clause inconsistent with free software -- I disagree.
Nonsense. As a lawyer well-versed in computer law issues, two things are apparent: (1) these issues are not beyond the ken of the Slashdot audience, who on both sides have manifest a fair understanding of the legal questions; and (2) one should never blindly accept the conclusions of a lawyer, such as Eben, who is acting in his capacity as an advocate for a client, in this case RMS and FSF.
Surely, when a lawyer makes cogent remarks, complete with reference to authority, one should take notice. But guess what? The folks on the "other side" are represented by counsel as well -- indeed, the lawyers who advised them to include the "offending provisions." They might take a different view. Thus, we as laypeople must make these calls on the merits, informed by the ARGUMENTS, not the assertions, of learned counsel.
This is why we have juries.
Bottom line: don't pretend this is beyond the ken of anyone here. The issues are fairly clear, and there is nothing deeply obcure from a legal position. In short, I see no reason a non-lawyer should feel shy about chiming in about these general policy questions.
What if mathematicians create the Algebra of Licensing - formal science for calculating license compatibility. The licenses will have much more compact formulations. And it will be possible to use OBJECTIVE means to figure out if software is composed legally and what is the resulting license or, on the contrary, is illegal and uses bad license mix
Not likely. Mathematicians have already proved it is impossible to create a general process determine whether two non-identical programs have the same input/output characteristics.
Far more likely, either the language will be too limiting to support most desirable license constructs, or it will be too expressively robust, implicating Godel-like or Halting-problem-like self-reference issues, to permit the existence of a general algorithm for determining equivalence or violations.
So for those of us who actually do care about, or are fiduciarily responsible to others, about license compliance concerning, GPL, we must take the view that only GPL is clearly compatible with anything that is not GPL, lest our clients find ourselves at the business end of that caprice.
Sorry about the syntactic instability. I meant to write something different, but clicked the wrong key. The sentence should have read:
Some of us actually care about avoiding license violations, or are responsible as advisors to those who want to avoid the same. For us, we must take the conservative view, that only GPL, and a very few other licenses, is compatible with GPL. Any other view exposes them to the caprice of the copyright holder.
This, IMHO, is the primary difficulty with the GPL.
it's not splitting hairs. The GPL says (and I'm guessing that this is the reason) "no extra restrictions" and this is an extra restriction.
Oh, if only that were the case, then this would be easy. The issue is not that any extra restriction makes things incompatible, but that some restrictions do and others do not. The arbiter of what are improper restrictions, at the end of the day, is RMS, in his view.
And the law is on his side -- at least technically. The language is clear that any addtiional restriction would violate. Thus, at the end of the day, the enforcing party can be the arbiter -- if only by deciding which violation to enforce, and which not to enforce.
So, I would agree the author is correct that its probably not "splitting hairs" to claim ANY non-GPL license is incompatible if it has any word not in the GPL or any provision not expressly a subset of a GPL restriction.
It is, however, arbitrary and capricious in practice. To pretend that some licenses are clearly naughty and others are clearly nice, and that this distinction is somehow embodied consistently in the GPL itself, or in the corpus commentary at FSF's web site is to engage in fantasy.
So for those of us who actually do care about, or are fiduciarily responsible to others, about license compliance concerning, GPL, we must take the view that only GPL is clearly compatible with anything that is not GPL, lest our clients find ourselves at the business end of that caprice.
INo copyright can protect from that. Your confusing copyright and patent. I HAVE considered the idea of 'Patent-left'
Indeed, many of us have done so. although I prefer the term "Latent," for "left-patent," to the awkward "patent-left."
There are many interesting issues that make Latents a much harder thing to accomplish. And the OSS community seems unwilling to consider Latents (because it is about software patents) sufficiently politically correct to get behind it. However, Latents offer the single best chance, IMHO, to protect the future of OSS against monied interests abusing OSS with software patents.
The author suggests that the Napster case is not about free speech, but rather "free stuff." Perhaps for many users of Napster -- the ones taking proprietary content without consent -- this may be the case, but that is not the point of the Napster lawsuit.
Napster is about two things -- whether or not a person may enter into the business of providing a communication and file-sharing forum without undertaking a duty to enforce the universe of third-party proprietary rights. This question was settled decades ago in the Sony Betamax case, but the IP world (ironically including Sony) now wants a second bite at the apple. Napster distributes software that is Napster's own intellectual property, and does not itself distribute any third-party content. How far are we to permit the reach of Copyright to impinge upon non-infringers? How is any sensible person ever going to get into the information distribution business should the Napster ruling stand?
The question is not whether underlying use of Napster by particular persons is unlawful, it is about whether underlying use by particular persons makes Napster itself unlawful. Be careful, with that we make hall monitors -- and with that private free speech censors -- out of every Internet ISP -- which is why the ISP's have filed an amicus brief on behalf of Napster.
Don't confuse the "OSS community" with the "FSF community." Even RMS will agree they are not one and the same. The GPL is not the Alpha and Omega, and certainly neither the first or last of the free software licenses for open source software.
And Python is not the first nor the last new development environment to adopt non-GPL, but free and open source, licenses. In my view, the incompatibilities of the licenses remain as much an indictment of GPL as of Python-L. While it may limit the number of free libraries available for linking to Python, that environment is well beyond critical mass at this time -- and it is probably more encouragement for non-Python people to issue code under LGPL than it is a deterrent for others to work in Python.
Any conduct that makes, uses, sells or offers for sale (or imports into the US) of an infringing apparatus is infringing.
However, while the initial act of making might have infringed, acts occurring subequent to the date of expiration of the patent (or, as in this case, the date of dedication) making, using or selling is not actionable. The devil is in the details of course, but users subsequent to the term of the patent are not likely to be liable for infringement.
Now it's been argued that his last editorial is absurd. Here's what I have to say: RMS has probably a lot more legal background than most people at KDE and on Slashdot (including me). Unless you are a lawyer specialized in Copyrights, just shut up and give him a break!
As a lawyer with the credentials you describe, I'm here to state that the previous postings, criticizing RMS remarks as hypertechnical and petty, were fair accounts. RMS response clearly sets forth more of a personal preference for Gnome than a legal argument in opposition to the use of KDE/Qt.
This was no subtle legal defense of GPL, and to the extent it was, it was more than adequately answered by the KDE author's response. It requires no subtle expertise in computer law to understand these arguments -- pettiness is as pettiness does.
This is just more, "my way or the highway," pabulum. A sound ideology does not require lockstep marching to the beat of a single drummer -- indeed, sound principles typically require the opposite -- a willingness to consider and weigh other approaches.
The logic here is hopeless: The fact that there exist licenses that are more limiting than the GPL does not mean that all non-GPL licenses are limiting and unfree.
Many wonderful works are available in open-source, free of the impediments you described, albeit not under GPL.
Lighten up -- open yourself to new ideas and learn. Question authority. Indeed, perhaps we should question in particular any allegation that GPL is "more free" than another license when GPL does not permit linking to software that was created under a reasonable license.
All that is necessary to create bad karma for bad patents is to *publish* existing art. Write it up in sufficient detail to enable a person of ordinary skill to practice the invention, and get it published with a date -- ship it to a library, and be done with the idea. No fee needs to be collected or managed, no central repository necessary -- just a publication, and the ability to date the publication is all that is required.
[Its a good idea, if this is your purpose, to provide this information for free to the USPTO, so examiners will have it available for that purpose. Perhaps if we can index and organize the information to make it more suitable for examination, it would be a greater tool than traditional journal publications.]
The problem is that the abstractness required for publication in some journals does tend to make academic CS journals less effective in judicial proceedings. Concrete disclosures of the kind prepared for a patent specification tend to make all of the difference in determinations of invalidity.
BTW, there exists a non-rights registration instrument already, called an SIR. You get the pretty ribboned and certified document from the Patent Office, useful for nothing except prior art -- but a classified ad in a newspaper would probably be cheaper and equally effective as evidence of invalidity. (The problem with SIR's is that they are fairly expensive.)
you encrypted an original work of authorship, say a CSS-player, which infringes no copyright, but does in fact facilitate circumvention of the anti-copying technology of another?
What if a prospective plaintiff "broke" the encryption thereby and obtained evidence of for its own DMCA case?
Would not the plaintiff also have broken the law thereby?
Say the plaintiff seeks injunctive relief under DMCA -- in so doing, would a defendant be coming to equity with unclean hands, precluding an injunction?
In an analogous case under copyright law, where a plaintiff makes copies of a derivative work to obtain evidence of an infringement, the Court overlooks the incidental infringement by the plaintiff as a form of fair use.
But that is the fundamental difficulty of the DMCA -- it doesn't provide for fair use. What is good for the goose -- is it also good for the gander?
This is certainly not legal advice -- I haven't any thoughts one way or the other if this approach could work. But I'm wondering if it points to holes in fundamental DMCA policies. In particular, if there is no fair use as a defense for one side, how can the court rationalize a judge-made defense for the other?
My point is this -- DMCA gives far more than "additional protection" for copyrightable content -- it also permits exclusive rights to the ability to manufacture DVD players, giving patent-like protection to a technology that is not, in fact, patentable. In addition to everything else, this cuts at the heart of more fundamental IP policies. Fair use is necessary to make IP Copyright law tenable. Likewise, the scope of patent law was very clearly defined to make patent law tenable.
Now we have a new body of IP law, putative circumvention technologies, which are not limited by scope or by time or inventorship.
Trade secrets are trade secrets. Use or disclosure of trade secrets is not only actionable, but its also quite wrong -- wrong in the way we all understand the word.
Information is leveraged by companies for commercial advantage in a variety of ways and for a variety of reasons. At times the timing of the release of that information can be critical. Whether a particular act was or was not problematic for Apple at the end of the day, uncontrolled leaks of confidential and trade secret information rob the company of something -- if only the discretion to make their own decisions when the informaiton is to be released. The degree of actual harm to Apple goes only to the measure of the damages, and not to the degree with which the conduct was wrong.
This employee broke the rules, probably broke his or her employment agreement, and did something he or she knew or should have known was wrong.
If Apple "just let it go," as some here have suggested, other employees may well be encouraged to trade information for favors. Whether it needs to press the point or not is, IMHO, Apple's call and Apple's perogative.
We do ourselves and our causes no service by defending the indefensible. This employee, who was trusted with confidential information about new unannounced products, should not have shared it with anyone else.
from these articles, any of them, precisely what is the scope of the patent. Without seeing the claims, absolutely nothing whatsoever can be said. Many of the cases concerning software patents thus far have hinged dramatically on narrowing claim constructions that have effectively neutered the patents for all but the most slavish copiers.
A narrowly claimed patent may well be valid, even though the broad subject matter of the claims may have been described in the article fairly, but the patent may not be harmful, let alone have any significant impact on commerce, except in some sense in which it may in fact be truly innovative.
Too many patents are smeared in Slashdot solely by reference to the general subject area of the patent. Hang in there, friends, time will tell. The more ludicrous the claims, the more likely the patent is invalid -- the narrower, the less likely it will matter. In between, there may well be sound arguments on both sides as to whether the patent is good, bad or ugly.
But we won't know until the patent is published. Time will tell.
Slashdot Mirror
'Ease is never free: its gain is matched by a loss in choice, security, privacy, health, or a combination thereof,'
This all depends how that ease is obtained. This is no different from trading off power of a program against the speed or space resources it uses: of course you can make a program use fewer resources by making it do less. On the other hand, if done properly, you can often make it do *more* while using fewer resources.
Ease of use obtained by limiting your what you can do with the code, of course, necessarily makes this tradeoff, but that's just a straw man.
The difficulty of providing power while simultaneously delivering ease of use is overcome by excellent engineering. Real Ease of use obtained in modern software design is obtained by standardizing the general idioms with which many programs are to be used, and eliminating inconsistencies and awkward modalities that make software use more complex, not for the purpose of additional functionality -- but for the ease or ideosyncratic views of the programmer.
This latter "ease of use" actually empowers users, making it possible to do more, better and faster, without significant compromises.
Unlike the inherent conflicts between interactivity and fiction (where there is a true trade-off) one can at once offer a user consistency, elegance and power. It isn't as easy for the programmer to do this -- especially if the programmer is unfamiliar with user design issues -- but that isn't a relevant factor.
Ease of use is something for which we must constantly strive. Articles such as this simply offer lazy programmers excuses to rationalize shoddy engineering.
The current sharing model that Napster uses *is* illegal.
Of course this isn't the case, any more than ftp or the world wide web is illegal. The shared model may be legally used in various ways, and it is this capacity for legal use that makes Napster's conduct noncontributory, per the Sony Betamax case.
The Ninth Circuit has already stayed the injunction on the ground that there remained substantial questions on the form and the merits, and there are sound arguments (not addressed by the White House brief) why the judge's preliminary ruling should be overturned.
So relax, be cool, and don't presuppose the legal battle is lost. Time will tell.
Having failed to justify his claims for infringement, he backpedals, and adds the laughable racketeering claim. Even RIAA's lawyers didn't have the balls to make that pretense.
Clearly this troll seem to think that naked assertions are good substitutes for argument.
Reasonable people will study the applicable law and facts of the case and decide for themselves. Of course, the Courts will ultimately abritrate the matter. Thus, time will tell.
Since the troll seems to enjoy repeating himself in lieu of responding to my arguments on the merits or offering alternative citations to authority, I'll happily stand on what I have written and leave him or her the last word.
As noted, Gentle readers may decide for themselves.
Like it or not, the AHRA isn't Napster's best argument. The White House Brief, essentially aping the Plaintiff's brief, is pretty much on point. I think there are arguments for both sides concerning construction of the AHRA, and certainly, this argument is a fairly well-written account of the law.
But so what? AHRA is hardly Napster's only argument. The crux of Napster's case does not rely on AHRA or the DMCA "exceptions" -- it relies primarily on two key arguments, one hypertechnical, and the other a fairly clear slam-dunk from the Supreme Court opinion in the Betamax case.
The hypertechnical argument observes that the plaintiffs failed to identify (and provide registrations for) the Copyrights for which they seek relief. Under applicable statutory and case law, this should preclude relief. RIAA is seeking a special-purpose exception, so they can sue in the present "all-in-one" capacity. IMHO, they should be spanked for their arrogance. Real copyright lawyers routinely attach the certificates of registration to the complaint.
The sound argument lies in the fact that Napster isn't itself infringing directly any copyright of the plaintiffs -- a point conceded by the RIAA. RIAA argues instead that Napster has contributed to the infringement by all its naughty users.
However, the Supreme Court in Sony held that to be liable for contribution, one must use an apparatus not capable of a substantial noninfringing use. (Clearly Napster has the capability, for example, for distributing works for which the parties have permission to distribute; also, it is capable of facilitating space-shifting -- whether or not that is its "intended purpose" as some have argued.) The 9th circuit was spanked decades ago for adopting a "primary use" or "primary purpose" test, when the Supes reversed them in Sony -- and I suspect they are likely to look closely at the fact that this was PRECISELY the basis with which the District Court found liability.
So, let's not get too hasty. The W.H. may actually be making the right argument, and perhaps for the right reason -- perhaps not.
The 9th Circuit took the same view in Sony, adopting a "primary purpose" test. The Supes shot that down, and stated that to be free from liability for contribution, all that is necessary is that the process merely be capable of substantial noninfringing use. If Napster can be used lawfully, then unlawful use of Napster by others is irrelevant to NAPSTER's liability.
Clearly, Napster can be used lawfully. I can sell Shelly a pen, hoping and wishing and advising Shelly to go ahead an infringe your book, and still not be liable for infringement. Your remedy is against Shelly, if she does, and not me.
That's just the way it is. Sue Shelly and leave the pen manufacturers out of it.
Your bio says you are an intellectual property lawyer. It may be easy for an IP lawyer to fall in love with UCITA...though there are plenty of lawyers who haven't.
I wrote computer games long before becoming a lawyer, and have since left the law to make internet security appliances. You seem to think my background disqualifies me, and I'd like to think these combined credentials give me a fair perspective on things. Let's lose the ad hominems on either side and discuss these issues on the merits, OK?
None of your remarks address the point I made. While there may be sound arguments against UCITA -- and there are many points of UCITA with which I disagree -- none of them were raised by the ridiculous propositions that UCITA, and not present law, permits unenforceability of unconcionable and counter-policy laws; or even that such provisions are bad things.
You might be interested to know that it was precisely these grounds with which the only Circuit Court cases not enforcing a shrink-wrap agreement based their judgment. Leave those cases out, and you are stuck with Zeidenberg's 7th Circuit shrink-wrap-uber-alles opinion, and all that under the common law and the UCC!
Fair use is 'sharing with immediate family and friends.'
No, fair use is defined under 17 U.S.C. s. 107, and applicable case law. As between what you think it is, and what the Congress and Supreme Court think it is, well, let us let our colleagues decide.
In Sony, it was held that time-shifting was fair use, and precluded liability of the vendor of the VCR. In Diamond, it was held that space-shifting of MP3's is fair use, and precluded liability of the Rio. The Supreme Court has said that all that needs to be the case for Napster to prevail is that Napster be capable of some substantial noninfringing use. If so, it is irrelevant how much infringement is going on . . .
Ironically, in the Sony case, the Eleventh Circuit initially adopted a test very much like the one adopted here in Napster by the District Court -- the very test that the Supes rejected. While it is certainly an open question, and only time will tell, any learned student of the applicable law reading the briefs and the case law has to like Napster's chances.
2) It is only the injunction which has been stayed. It has not been remanded.
True. Time will tell how the Courts will treat the appeal. However, for an appellate court to stay a preliminary injunction, it must determine that the order below had serious questions both as to form and to the merits. And so the 11th Circuit found.
The remarks in the preceding appear to be trolling, but taking them on their face:
(1) Napster has NOTHING, really, to do with the conduct of its users. They are not parties to the suit. There is NO allegation in the complaint of direct infringement -- the sole Count (apart from an irrelevant state claim) is for contribution. The question is not whether two people using Napster to trade another's IP without fair use or consent is infringing -- on this point I agree with the troll. The relevant legal questions in this case (rather than the troll's straw man) are: (1) whether space-shifting is noninfringing conduct; and (2) whether Napster is, in fact, capable of substantial non-infringing use.
(2) At least one three-judge panel of the 9th Circuit has its doubts. The injunction was stayed in an order, finding substantial flaws, both in the form and the merits of the District Court opinion.
(3) The Supreme Court, whom I reasonably rely upon for constitutional advice when conflicting with the unsupported statements of a troll, knew full well the constitutional status of the Patent and Copyright Acts when it wrote the Sony opinion. Moreover, they recently held that the Amendments (including the First, Fifth and Eleventh) trump the Patent and Copyright Clause in the Florida College Prepaid and Seminole Tribe cases.
In short, I agree that Copyrights and Patents have special, indeed, constitutional status from Article I, Section 8. But so does every law passed under the Commerce clause! No provision of Article I creates a power in the Congress to block free speech. Period.
(3) You could easily count the aggregate number of people who have been jailed for copyright infringement on a hand or two. Thus, either there aren't that many "theives" [sic], or the troll is wrong.
And is Stallman crazy? Or crazy like a fox?
Just crazy. (Actually, I don't think he is crazy -- merely unnecessarily dogmatic, and to the detriment of his stated cause and philosophy.)
But I just LOVE the anti-UCITA arguments made by folks who don't understand the law. While UCITA does have some provisions offensive to me, if these provisions are your lead concerns, well LOL. UCITA is no better or worse in this regard than the
This particular argument is one of the weakest reeds on which I have seen an anti-UCITA advocate lean.
For centuries, violations of fundamental public policies, and more recently, but for decades, unconscionability have been grounds for courts to void provisions of contracts. This is true not only of the common law, but also the fifty-year-old UCC, which is the statutory law most likely to apply in its absence.
Indeed, UCITA's provisions are somewhat better than prior law, in that they LIMIT the scope of discretion a court will have by more rigorously defining the notions and their application.
The only objection of RMS is against clause 7, the "State of Virginia"-clause. The strange thing is, this clause may not be applicable outside the US, so the license may be GPL-compatible outside the US after all. (Only lawyers can sort this out).
Nah, actually, once you have formation of contract under applicable law, remaining choice of law clauses are generally enforced, even in international scenarios. There are exceptions, but I don't see one here.
In this sense, the choice of law clause actually seems like a good idea. I think that RMS is troubled not by the idea of a choice of law clause per se, but by an ideological opposition to laws passed in some jurisdictions. The problem is, that he is not arguing his underlying opposition -- he is pretending that this is a clause inconsistent with free software -- I disagree.
arguments?
Nonsense. As a lawyer well-versed in computer law issues, two things are apparent: (1) these issues are not beyond the ken of the Slashdot audience, who on both sides have manifest a fair understanding of the legal questions; and (2) one should never blindly accept the conclusions of a lawyer, such as Eben, who is acting in his capacity as an advocate for a client, in this case RMS and FSF.
Surely, when a lawyer makes cogent remarks, complete with reference to authority, one should take notice. But guess what? The folks on the "other side" are represented by counsel as well -- indeed, the lawyers who advised them to include the "offending provisions." They might take a different view. Thus, we as laypeople must make these calls on the merits, informed by the ARGUMENTS, not the assertions, of learned counsel.
This is why we have juries.
Bottom line: don't pretend this is beyond the ken of anyone here. The issues are fairly clear, and there is nothing deeply obcure from a legal position. In short, I see no reason a non-lawyer should feel shy about chiming in about these general policy questions.
What if mathematicians create the Algebra of Licensing - formal science for calculating license compatibility. The licenses will have much more compact formulations. And it will be possible to use OBJECTIVE means to figure out if software is composed legally and what is the resulting license or, on the contrary, is illegal and uses bad license mix
Not likely. Mathematicians have already proved it is impossible to create a general process determine whether two non-identical programs have the same input/output characteristics.
Far more likely, either the language will be too limiting to support most desirable license constructs, or it will be too expressively robust, implicating Godel-like or Halting-problem-like self-reference issues, to permit the existence of a general algorithm for determining equivalence or violations.
Please cite what you believe to the relevant provision of UCITA which permits a licensee to unilaterally change a license in this manner.
So for those of us who actually do care about, or are fiduciarily responsible to others, about license compliance concerning, GPL, we must take the view that only GPL is clearly compatible with anything that is not GPL, lest our clients find ourselves at the business end of that caprice.
Sorry about the syntactic instability. I meant to write something different, but clicked the wrong key. The sentence should have read:
Some of us actually care about avoiding license violations, or are responsible as advisors to those who want to avoid the same. For us, we must take the conservative view, that only GPL, and a very few other licenses, is compatible with GPL. Any other view exposes them to the caprice of the copyright holder.
This, IMHO, is the primary difficulty with the GPL.
it's not splitting hairs. The GPL says (and I'm guessing that this is the reason) "no extra restrictions" and this is an extra restriction.
Oh, if only that were the case, then this would be easy. The issue is not that any extra restriction makes things incompatible, but that some restrictions do and others do not. The arbiter of what are improper restrictions, at the end of the day, is RMS, in his view.
And the law is on his side -- at least technically. The language is clear that any addtiional restriction would violate. Thus, at the end of the day, the enforcing party can be the arbiter -- if only by deciding which violation to enforce, and which not to enforce.
So, I would agree the author is correct that its probably not "splitting hairs" to claim ANY non-GPL license is incompatible if it has any word not in the GPL or any provision not expressly a subset of a GPL restriction.
It is, however, arbitrary and capricious in practice. To pretend that some licenses are clearly naughty and others are clearly nice, and that this distinction is somehow embodied consistently in the GPL itself, or in the corpus commentary at FSF's web site is to engage in fantasy.
So for those of us who actually do care about, or are fiduciarily responsible to others, about license compliance concerning, GPL, we must take the view that only GPL is clearly compatible with anything that is not GPL, lest our clients find ourselves at the business end of that caprice.
INo copyright can protect from that. Your confusing copyright and patent. I HAVE considered the idea of 'Patent-left'
Indeed, many of us have done so. although I prefer the term "Latent," for "left-patent," to the awkward "patent-left."
There are many interesting issues that make Latents a much harder thing to accomplish. And the OSS community seems unwilling to consider Latents (because it is about software patents) sufficiently politically correct to get behind it. However, Latents offer the single best chance, IMHO, to protect the future of OSS against monied interests abusing OSS with software patents.
The author suggests that the Napster case is not about free speech, but rather "free stuff." Perhaps for many users of Napster -- the ones taking proprietary content without consent -- this may be the case, but that is not the point of the Napster lawsuit.
Napster is about two things -- whether or not a person may enter into the business of providing a communication and file-sharing forum without undertaking a duty to enforce the universe of third-party proprietary rights. This question was settled decades ago in the Sony Betamax case, but the IP world (ironically including Sony) now wants a second bite at the apple. Napster distributes software that is Napster's own intellectual property, and does not itself distribute any third-party content. How far are we to permit the reach of Copyright to impinge upon non-infringers? How is any sensible person ever going to get into the information distribution business should the Napster ruling stand?
The question is not whether underlying use of Napster by particular persons is unlawful, it is about whether underlying use by particular persons makes Napster itself unlawful. Be careful, with that we make hall monitors -- and with that private free speech censors -- out of every Internet ISP -- which is why the ISP's have filed an amicus brief on behalf of Napster.
Don't confuse the "OSS community" with the "FSF community." Even RMS will agree they are not one and the same. The GPL is not the Alpha and Omega, and certainly neither the first or last of the free software licenses for open source software.
And Python is not the first nor the last new development environment to adopt non-GPL, but free and open source, licenses. In my view, the incompatibilities of the licenses remain as much an indictment of GPL as of Python-L. While it may limit the number of free libraries available for linking to Python, that environment is well beyond critical mass at this time -- and it is probably more encouragement for non-Python people to issue code under LGPL than it is a deterrent for others to work in Python.
Any conduct that makes, uses, sells or offers for sale (or imports into the US) of an infringing apparatus is infringing.
However, while the initial act of making might have infringed, acts occurring subequent to the date of expiration of the patent (or, as in this case, the date of dedication) making, using or selling is not actionable. The devil is in the details of course, but users subsequent to the term of the patent are not likely to be liable for infringement.
Now it's been argued that his last editorial is absurd. Here's what I have to say: RMS has probably a lot more legal background than most people at KDE and on Slashdot (including me). Unless you are a lawyer specialized in Copyrights, just shut up and give him a break!
As a lawyer with the credentials you describe, I'm here to state that the previous postings, criticizing RMS remarks as hypertechnical and petty, were fair accounts. RMS response clearly sets forth more of a personal preference for Gnome than a legal argument in opposition to the use of KDE/Qt.
This was no subtle legal defense of GPL, and to the extent it was, it was more than adequately answered by the KDE author's response. It requires no subtle expertise in computer law to understand these arguments -- pettiness is as pettiness does.
This is just more, "my way or the highway," pabulum. A sound ideology does not require lockstep marching to the beat of a single drummer -- indeed, sound principles typically require the opposite -- a willingness to consider and weigh other approaches.
The logic here is hopeless: The fact that there exist licenses that are more limiting than the GPL does not mean that all non-GPL licenses are limiting and unfree.
Many wonderful works are available in open-source, free of the impediments you described, albeit not under GPL.
Lighten up -- open yourself to new ideas and learn. Question authority. Indeed, perhaps we should question in particular any allegation that GPL is "more free" than another license when GPL does not permit linking to software that was created under a reasonable license.
All that is necessary to create bad karma for bad patents is to *publish* existing art. Write it up in sufficient detail to enable a person of ordinary skill to practice the invention, and get it published with a date -- ship it to a library, and be done with the idea. No fee needs to be collected or managed, no central repository necessary -- just a publication, and the ability to date the publication is all that is required.
[Its a good idea, if this is your purpose, to provide this information for free to the USPTO, so examiners will have it available for that purpose. Perhaps if we can index and organize the information to make it more suitable for examination, it would be a greater tool than traditional journal publications.]
The problem is that the abstractness required for publication in some journals does tend to make academic CS journals less effective in judicial proceedings. Concrete disclosures of the kind prepared for a patent specification tend to make all of the difference in determinations of invalidity.
BTW, there exists a non-rights registration instrument already, called an SIR. You get the pretty ribboned and certified document from the Patent Office, useful for nothing except prior art -- but a classified ad in a newspaper would probably be cheaper and equally effective as evidence of invalidity. (The problem with SIR's is that they are fairly expensive.)
you encrypted an original work of authorship, say a CSS-player, which infringes no copyright, but does in fact facilitate circumvention of the anti-copying technology of another?
What if a prospective plaintiff "broke" the encryption thereby and obtained evidence of for its own DMCA case?
Would not the plaintiff also have broken the law thereby?
Say the plaintiff seeks injunctive relief under DMCA -- in so doing, would a defendant be coming to equity with unclean hands, precluding an injunction?
In an analogous case under copyright law, where a plaintiff makes copies of a derivative work to obtain evidence of an infringement, the Court overlooks the incidental infringement by the plaintiff as a form of fair use.
But that is the fundamental difficulty of the DMCA -- it doesn't provide for fair use. What is good for the goose -- is it also good for the gander?
This is certainly not legal advice -- I haven't any thoughts one way or the other if this approach could work. But I'm wondering if it points to holes in fundamental DMCA policies. In particular, if there is no fair use as a defense for one side, how can the court rationalize a judge-made defense for the other?
My point is this -- DMCA gives far more than "additional protection" for copyrightable content -- it also permits exclusive rights to the ability to manufacture DVD players, giving patent-like protection to a technology that is not, in fact, patentable. In addition to everything else, this cuts at the heart of more fundamental IP policies. Fair use is necessary to make IP Copyright law tenable. Likewise, the scope of patent law was very clearly defined to make patent law tenable.
Now we have a new body of IP law, putative circumvention technologies, which are not limited by scope or by time or inventorship.
Bleah!
Trade secrets are trade secrets. Use or disclosure of trade secrets is not only actionable, but its also quite wrong -- wrong in the way we all understand the word.
Information is leveraged by companies for commercial advantage in a variety of ways and for a variety of reasons. At times the timing of the release of that information can be critical. Whether a particular act was or was not problematic for Apple at the end of the day, uncontrolled leaks of confidential and trade secret information rob the company of something -- if only the discretion to make their own decisions when the informaiton is to be released. The degree of actual harm to Apple goes only to the measure of the damages, and not to the degree with which the conduct was wrong.
This employee broke the rules, probably broke his or her employment agreement, and did something he or she knew or should have known was wrong.
If Apple "just let it go," as some here have suggested, other employees may well be encouraged to trade information for favors. Whether it needs to press the point or not is, IMHO, Apple's call and Apple's perogative.
We do ourselves and our causes no service by defending the indefensible. This employee, who was trusted with confidential information about new unannounced products, should not have shared it with anyone else.
from these articles, any of them, precisely what is the scope of the patent. Without seeing the claims, absolutely nothing whatsoever can be said. Many of the cases concerning software patents thus far have hinged dramatically on narrowing claim constructions that have effectively neutered the patents for all but the most slavish copiers.
A narrowly claimed patent may well be valid, even though the broad subject matter of the claims may have been described in the article fairly, but the patent may not be harmful, let alone have any significant impact on commerce, except in some sense in which it may in fact be truly innovative.
Too many patents are smeared in Slashdot solely by reference to the general subject area of the patent. Hang in there, friends, time will tell. The more ludicrous the claims, the more likely the patent is invalid -- the narrower, the less likely it will matter. In between, there may well be sound arguments on both sides as to whether the patent is good, bad or ugly.
But we won't know until the patent is published. Time will tell.