Codewarrior became pervasive as a development tool for building serious applications, and with that, the death of open source for the Mac.
The bottom line is that it is just too damned hard to port most stuff to the MacOS, simply because there is no infrastructure for porting (and then maintaining the port). For example, the most recent port of GCC to MacOS is ancient, and from that comes obstacles to maintain anything else in the OSS community.
The lack of a solid command line environment is only partially an explanation -- MPW is free (at least now it is), and could have been a springboard for free development. But we just never had the technogeeks interested enough in these fundamental infrastructure tools to move forward.
Absent a compiler, makesystem and uniform libraries to use other code, there never was the critical mass to do serious builds of serious software. The absent of the serious stuff meant the benefit of OSS was never felt or perceived by MacTech community -- including those of us who live to breathe in U*ix on other platforms.
There needed to be a core of beautiful tools before a core of beautiful applications could be found. Build that (on any platform) and they will come.
MacOS X has this basis built-in. Perhaps things will change soon. Time will tell.
Boies' brief is an impressive tour de force of legal advocacy. The legal crux of his argument is NOT copyright misuse (whether because of antitrust or generic equitable bases), which is legally a longshot, or even the claim that the ARHA permits private copying. It is the following, prosaic legal argument, mentioned several times in past threads on the subject:
(1) Napster doesn't copy anything itself directly, so it is not guilty of copyright infringement.
(2) The Napster architecture is capable of substantial noninfringing uses, and thus under the Supreme Court Sony Betamax case, there can be no contributory infringement, to wit:
(a) consumers can use napster to "space-shift" (apparently the relativistic equivalent of Sony's time-shifting) works for which they have already purchased copies (supported by ARHA on policy grounds as fair use, even if not a direct defense);
(b) consumers can use napster to "try-before-you-buy," another variant of time-shifting; and
(c) individuals can use napster to obtain access to works of artists who consent to the distribution, including big guys sick of dealing with "standard" record terms and little guys who can't get a record deal.
Since these guys don't infringe, Napster can't be guilty of contributing to their infringement. Since a substantial number are doing (1), (2) or (3) [At least 10-20%, even if you take RIAA's expert surveys], the Supreme Court says no infringement.
Judgment for the Defendants, Plaintiffs take nothing and go without day.
The crux of this is that it is an unattractive argument -- very legalistic, and inviting factual distinctions from Sony. Boies recognized that this intellectually solid legal argument doesn't "move" an impartial or unconvinced party.
Thus, the thrust of the brief is to talk about POLICY. The beauty of the argument is that it shifts the moral high ground -- turning the "Evil Pirate against Poor Artists" argument into one of "Big Bad Business beats up on its Own Consumers, screwing the Artists as it goes, and threatening the Internet and the First Amendment along the way."
For that Boies scores high marks. He makes the legal case, and goes on to point out the nastiness and contradictory conduct of RIAA to date. But at the heart and sole of this is the legal peg for the judge to hang her hat once she "sees the policy"
I have read lots of briefs. This is a beautiful piece of work. It is a subtle one that hides the strategy even as it executes it with precision. Note how it states beautifully the case we made in this very forum, but without the histrionics, and therefore with much greater power and persuasive force.
It's a beautiful piece of work that made me regret a bit, for the first time in months, that I gave up computer law in favor of actually building software.
Consider circumstances where the operating system becomes subsumed in application software -- suddenly the concession to reality of permitting distribution of a GPL'd application together with a proprietary application. In the context of some OODL's, this distrinction between operating system and application dissolves.
Consider Smalltalk-80 and modern day open-source derivatives, such as Squeak. In Squeak, all objects, sources and applications co-exist in a Smalltalk "image." Because of the nature of late-bound OODL programming, it is IMPOSSIBLE to combine Squeak with GPL code without infecting each and every application in the image -- this is because the image is not the operating system.
Unfortunately, this makes it legally impossible to merge GPL code with Squeak without rewriting large portions of that code, which while open source cannot co-exist with GPL. Too bad for Squeak, and too bad for the GPL. Moreover, too bad for the community, which is deprived of excellent software that could have been.
Why can't Publius' enemies defeat the system merely by anonymously spamming all the servers with large files of random text? Unless the authors are limited to a defined group of people (in which case they are not anonymous), wouldn't this strategy eventually suck up all Publius server resources, thereby censoring the text by drowning?
Perhaps the marketplace of ideas requires antitrust laws, too?
At the outset, count me in as a huge Open Source fan. I use and contribute OSS regularly, and am a true believer in the fruits of the movement (or at least one or more definitions of the "movement").
Further, let me say at the outset that OSS provides and has provided a large set of tools of enormous value to game developers. The technical side of game design is far easier today than once it was. The publication by leading lights of their technical works (which happened only under the covers in the old days) has helped to improve the state of the art greatly.
However, that being said, let me make this remark: a great game is not a pretty game; a pretty game is not a great game. A highly technical game need not be pretty or great; and vice vice versa. What is more, it is naive to believe that there is any clear division between the "art" of game design and the "pure tech" of game execution. (let alone the "art" and "pure tech" of the art).
A great game, unlike many great things, is not something that lends itself well to specification; and is particularly not something that lends itself well to production by independent actors. There is often a time when you know you are "just hacking," and you know you are "just making shit up to be fun," but it is not a readily engineerable task. The subtlest change can make a useless game great and a great game useless -- and it may have nothing or everything to do with design -- and it may have nothing or everything to do with hackery.
In short, game design, like movies, theatre and most purely artistic efforts, can be the result of collaborating artists and technicians, but to be great requires a central focused vision articulated and enforced by one or a very small community of brilliant folks. Like a director for a theatrical production, there will be much reliance on the purely artistic contributions of others and the purely technical contributions of others -- but the greatness comes from the gestalt.
The Masterplay occurs as the result of technical excellence, so perfectly and cunningly crafted as to transcend to an art. Such excellence does not happen by accident, or by consensus; at least in my experience.
Open Source Gamery may well be possible, but like Harvard Berkman Center's "Open Law" efforts, is really a different paradigm sucking up a popular term.
Yes, we will have Open Source games as we understand them, but they are unlikely to be truly great. In time, there will be collaborative game design environments, perhaps that call themselves Open Source -- but that doesn't mean anything really.
Great games will not come from consensus. Killer shoot-em-ups certainly can -- and some may be truly pretty and truly beautiful. But me-too is me-too. What will stun us is the truly surprising. the different. the great.
That will come from a small, focused group, IMHO; and not by consensus.
With all the gainsaying here, I thought it would be time to get back to principles. Exactly as is laid out under the present law (Uniform Commercial Code), and in fact under the common law as well, a number of implied warranties arise from every commercial transaction. UCITA is no different. It does, however, have some license-specific warranties, which I presume are the ones over which Bruce is getting bent out of shape.
Let me say at the outset that I am likewise unfond of some of these warranties. But that doesn't alter the fact that the posted statement:
UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors
is just bull. As with the UCC and the common law, all implied warranties can be disclaimed in a record, indeed with the very language of most current licenses. The words "AS-IS" get rid of most of the warranties, and the rest (suitability for a particular purpose and title and infringement and the like) can be fixed with certain magic language prescribed by the Act. Just like the UCC. Nothing new here. The siren rang by the poster isn't the truth.
Don't take my word for it. Read for yourself. Section 406 of the UCITA expressly provides:
SECTION 406. DISCLAIMER OR MODIFICATION OF WARRANTY.
(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to disclaim or modify an express warranty must be construed wherever reasonable as consistent with each other. Subject to Section 301 with regard to parol or extrinsic evidence, the disclaimer or modification is inoperative to the extent that such construction is unreasonable.
(b) Except as otherwise provided in subsections (c), (d), and (e), to disclaim or modify an implied warranty or any part of it, but not the warranty in Section 401, the following rules apply:
(1) Except as otherwise provided in this subsection:
(A) To disclaim or modify the implied warranty arising under Section 403, language must mention "merchantability" or "quality" or use words of similar import and, if in a record, must be conspicuous.
(B) To disclaim or modify the implied warranty arising under Section 404, language in a record must mention "accuracy" or use words of similar import.
(2) Language to disclaim or modify the implied warranty arising under Section 405 must be in a record and be conspicuous. It is sufficient to state "There is no warranty that this information, our efforts, or the system will fulfill any of your particular purposes or needs", or words of similar import.
(3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or, except for the warranty in Section 401, if it is conspicuous and states "Except for express warranties stated in this contract, if any, this `information? `computer program? is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user", or words of similar import.
(4) A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of merchantability is sufficient to disclaim or modify the warranties under Sections 403 and 404. A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of fitness for a particular purpose is sufficient to disclaim or modify the warranties under Section 405.
(c) Unless the circumstances indicate otherwise, all implied warranties, but not the warranty under Section 401, are disclaimed by expressions like "as is" or "with all faults" or other language that in common understanding calls the licensee?s attention to the disclaimer of warranties and makes plain that there are no implied warranties.
(d) If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has refused to examine the information, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed to the licensee.
(e) An implied warranty may also be disclaimed or modified by course of performance, course of dealing, or usage of trade.
(f) If a contract requires ongoing performance or a series of performances by the licensor, language of disclaimer or modification which complies with this section is effective with respect to all performances under the contract.
(g) Remedies for breach of warranty may be limited in accordance with this [Act] with respect to liquidation or limitation of damages and contractual modification of remedy.
In fact, I am an attorney. One who has been practicing primarily computer law for the past ten years. I just finished a term as chairman of the Florida Bar Computer law committee. I am intimately familiar with the bill, and have been frequently amazed at some of the things people who are political opponents of its provisions will say. The bill has real, legitimate problems -- this is not one of them.
Now, this is not a reason to take me at my word on this point, or to accept the unsupported conclusions I laid out above. I am simply pointing out that neither is the "I have a lawyer-friend downtown" remark a reason for the same.
If you think that UCITA imposes a warranty that cannot be disclaimed, one that would not be likewise imposed by the common law or the UCC, by all means, please identify it, and I will address your point.
Thus far, all we have in this colloquy (both sides) is non-falsifiable blather. If you or your friend wish to support this proposition, please do so.
It is ironic how slashdotters so often abuse legislators for being unaware of technology, when in fact, it is the slashdotters who do not understand so well the law.
The poster is correct, this bill does not require any particular technology be used to authenticate -- only that whatever mark is fixed or logically associated with the document was made with the intent to sign the document.
If I write an e-mail "I'll buy 1000 widgets, $10 ea. terms 2/10 net 30, love moi," that would be a signed writing.
This is how the law has always been. An x on a sheet of paper marked with a #10, or even the slapping of such a document on a spool is also legally sufficient.
What the poster doesn't seem to appreciate is that the law has never imposed a unique technology for signing. In particular, signature technologies to date have never been reliable sources of authentic evidence of intent to sign. In practice, such evidence is rarely used to resolve disputes anyway -- far more probative are the circumstances under which the alleged signature was made, or an eye-witness.
There are sound reasons for keeping the government out of the business of telling us how to do business. This bill is pro-liberty, granting MORE flexibility to the public and business, not less.
At any rate, here is the most signficant point -- the vast majority of agreements, including the one described above -- DO NOT REQUIRE SIGNATURES AT ALL. Thus, little is changed. These bills are primarily to facilitate the sale of expensive goods, real estate and highly complex service agreements. (Also, I suppose, it would make a difference for exclusive licenses or the assignment of a copyright).
Of COURSE, if it really matters, you should use true digital signatures, biometrics, or better yet, take a hostage to hold in escrow. But it should be YOU AND I, not the Congress who decides what technologies should be used.
An electronic "signature" can be something as simple as clicking 'I agree' or pressing '1' on your phone. And now Congress wants such actions to be legally binding
The vast majority of agreements you sign do not require your signature to be legally binding. Only a few would be rendered invalid in the absence of a signed writing under the "Statute of Frauds."
Nearly all license agreements are enforeceable -- all that is required is offer, acceptance and consideration. No signature or authentication is required.
Some agreements, however, do require signatures. These are typically contracts concerning real estate, for goods in excess of $500.00, and an obscure, but small percentage of service agreements that are "legally impossible" to perform within a year.
Thus, precious few documents would be affected by this bill. On the other hand, some substantial transactions presently require real-time, real-space signing ceremonies, because the stakes are simply too high to risk permitting hypertechnical "form-based" defenses.
True, the ES law does not require that any particular authentication technology be used to make a signature binding. Neither does the common law require that blue pens, ink, pencil or even a writing be used. Invisible Ink *is* binding, as is a shaved cow, or a mark made in the sand. You can sign "Minnie Mouse," or "X" and all is legally well. So, by the way, are facsimiles, typewritten signatures on paper, hand-stamps and marks made using someone else's blood.
The point is that the law has NEVER tried to inquire into the validity of any particular signing (the legal term, unfortunately is authentication -- which has a special meaning in the context in which we discuss matters) means. The entire idea is that parties should be free to decide whether they are satisified with the means used.
There is substantial authority that would support the legal effectiveness of an e-mail signature -- the point is that one would not rely upon it as the basis for a sale of a $100,000,000 business -- who really wants to be the first to test some new area of law, or provide a defendant a basis to raise some hypertechnical defenses. The law basically saves money.
You get to decide whether to sign it or not, and you get to decide whether to accept another's signature or not. That's the way the law SHOULD be. The government shouldn't dicate what color ink I should use, or whether I should use ink at all.
Its all about eggs in baskets. This permits cheaper commerce to be safer. It probably codifies the common law anyway. It doesn't hurt anything.
This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors.
Nonsense. This is more pabulum and disinformation designed to stir up dissent among the ill-informed. I commend to all my colleagues the text of the bill -- read the darned thing (including the commentary) and then decide for yourself.
Express warranties need not be given, and implied warranties can (almost always*) be disclaimed. You can easily give a BSD-style license under UCITA. If anything, the situation under UCITA would be slightly better: you will have somewhat greater assurance that warranty disclaimers are enforceable.
There are a few pieces of the common law, UCC (which would apply in the absence of UCITA) and UCITA that cannot be disclaimed as a matter of law. In this regard, UCITA is not substantively different from the status quo.
I litigated patent infringement for a number of years until I decided to go back to tech. For reasons I really can't figure out, the vast majority of my cases involved patent defense. While I have seen some bad-news patents, and actually succeeded in invalidating a few, I can tell you that the only cases involving bullshit claims are the ones that settled quickly.
For the most part, folks really don't slam down hundreds of thousands of dollars to litigate a losing case, even to beat up on a littler guy. Once you show them that you can hurt them, they go away. Really, they do.
I did have one case that went way further than it should have gone -- and it hurt the Plaintiff more than helped him. The rest of the industry in question ended up backing the little guy, and we ended up with so strong a position that they ultimately settled by offering my client (the defendant) $100,000 and fees to agree to let the Plaintiff drop its case.
So, in the end, the system works OK. The reason there isn't much need for additional litigation is that bullshit patents are generally ignored, close patents are rarely asserted on cost/benefit, and other patents SHOULD be asserted -- that's how we resolve these kinds of disputes in the U.S.
The GPL would be the only basis by which a person of computer software has a right to reproduce, distribute or make derivative works of the software. If the GPL were unenforceable for any reason, then the FSF might be out of luck on a contract theory, but would therefore be able to sue on a Copyright theory.
The defendant cannot consistently argue that the GPL is unenforceable, but nevertheless grants the defendant rights under a copyright. Even if a defendant argues for an implied license, such licenses can be revoked, leaving the company out of luck. No company can claim to have reasonably relied upon the implied license as a theory for making the license irrevocable, because it is unreasonable to assume that the implied license was not contingent upon the requirements (whether or not enforceable as a contract) of the GPL.
Full circle. No way out. The only option for the defendant is to decide which way she loses.
There doesn't need to be any money or financial asset changing hands -- an exchange of non-illusory promises suffices.
Virtually all bilateral contracts survive challenges to formation on grounds of consideration, so long as each party is somehow bound to do, or refrain from doing, something. In the present case, the copyright owner grants a license, and the other party agrees to refrain from doing certain things.
If you take the view that what you believe is right, and what you do not is not, then of course the Constitution can not sway you one way or the other.
The Constitution is a consensus instrument, of course, and from that it draws both its persuasive strength and its weaknesses. If the Oracle of Right holds too small a minority view, it is true, the document will not be changed appropriately.
In your supposedly "damning" example, however, this was not the case. Eventually, the majority view did prevail. That may constitute a "might makes right" view, indeed, but such is the nature of majority rule, and of supermajority rule to amend a Constitution. We check that majority right by providing limits, as in the bill of rights, and have faith that the rest will take care of itself.
It may not be the best way, but in truth, I don't know of a better way. I, for one, think the Constitution is a deep, wondrous instrument. Whatever its historical flaws, it seems to have been self-healing over time. As between its dicta, and your undifferentiated assertions as to what is "right," I for one know which is the more persuasive.
You argue against the Constitution by quoting language that has been amended out or rendered legally obsolete. Not the strongest argument, IMHO.
The Patent Act provides for an award of costs and fees in an extraordinary case -- thus, clearly invalid patents may not be asserted without risk.
There are other causes of action (including criminal causes for perjury) if claims are falsely stated in a Patent Application.
I have seen cases where patent owners have been fined and punished for misrepresenting their rights to the public. It's not common, but it does happen.
On the other hand, the vast majority of cases brought to trial are far more reasonable disputes -- cases where both parties have a reasonable argument. (Most cases where the rights are slam-dunk are settled well in advance of trial, let alone appeal).
Just because something is "in the constitution" does not mean that is it right. Get over yourself.
He didn't say it was right. He said it was the law. And, in fact, it is and has been the law for more than 200 years.
The particular clause your are unfond of here, is no longer the law -- we had to fight a civil war to find out why it shouldn't be.
To suggest that the Constitution, as amended, does not codify American social norms in some sense is wrong-headed. If there was a sea-change in political views, the means exist to amend it. Not only hasn't this ever been proposed for Article I, Section 8 -- that issue has never been on the political scope.
Of course, the fact that the proposition is normative in America, doesn't make it right either. The principles of Patent and Copyright law certainly aren't "right" just because they are in the Constitution.
On the other hand, the fact that they have been organic law of this nation for more than 200 years is highly persuasive. "Get over yourself," while pithy, certainly does not constitute much of an argument to the contrary.
. . . we should resolve this point properly. Have a debate and vote on it.
Now, to do that we must first decide who is eligible to vote, and then how many votes each such person gets. Then we must establish the rules of order for the voters and non-voting stakeholders to comment.
Perhaps we should issue an RFC first? Let's appoint a committee to come up with a first draft.
The government's next move is to either appeal to the Supremes or ask for a full trial (IANAL - I don't understand why the radically different options)."
There was no final decision on appeal, just an interim (interlocutory, in lawspeak) appeal from the preliminary injunction finding the law unconstitutional. Interlocutory jurisdiction is proper (indeed on an expedited basis) when an injunction is granted or upheld.
This is a particularly important issue in a First Amendment censorship case. There, the government bears the burden to prove by clear and convincing evidence that the law was necessary to achieve a compelling governmental interest and that no less intrusive means suffice to serve that interest. This is an enormous burden, which the government almost always loses.
On the record, the factfindings of the District Court make it peculiarly difficult for the government to win on appeal. Although there was an extensive hearing with detailed factfindings, the government may want to take a second byte at the Apple with the district court to make a record more suitable for Supreme Court review. If they go straight to the Supremes, the case will be decided (at least for the moment) primarily in view of the factfinding, which the Supes may not question absent clear mind loss on the District Court judge.
On the other hand, if they go straight up, and Supes affirm, they can still go back down, make their record, and go all the way back up after the final decision.
Network Solutions does not own ANY domain names apart from those that they themselves have registered. I agree that they should not be obliged to support any deadbeats who haven't paid their fees (including Microsoft), but once the domain name is freed, it should go back in the pool for a first-come, first-served process.
Network Solutions, in its capacity as a government contractor, has already been through a carefully negotiated and litigated process to determine that they couldn't charge as much as $100 per two years, reducing the price to $75.00.
Further, Network Solutions is no longer the "owner" of.com space, sharing that with many other registrants.
Auctioning off domain names is something for the non-contractors to do -- NSI cannot do both without a conflict of interest, and certainly the appearance of impropriety. IMHO, they should either stop the practice immediately, or be stripped of their right to issue SLDN in.com space.
You purchased and used tangible assets. That conduct is subject to tax, either in the form of sales tax or use taxes. In many over-the-counter transactions, the seller collects the taxes pursuant to law for you. In other transactions, they do not.
But in any case, you are liable for the taxes. That's just the way it is.
The fact that goods were purchased by a transaction, in whole or in part, conducted over the Internet has no impact on this whatsoever. If you were advised by a tax counselor or lawyer that you could avoid sales tax to your detriment, sue them for their malpractice, but against the government you have no gripe. If you simpy assumed you could avoid taxes on that basis without the advice of counsel or a tax advisor, then you have no gripe either, but you also have nobody to sue.
Look guys, as much as many of us like to pretend we live in some extra-territorial world here in "cyberspace," that's just a convenient fiction. We live in the real world, with only the two traditional certainties.
To claim surprise for being taxed on use or sales of tangible personal property is, well, just naive.
I gripe about taxes, too. That's one thing. To claim special treatment for e-commerce transactions, well, that's just silly.
If the academy wishes to render itself obsolete, so be it. That's their choice. It won't be the first industry to kill itself off for failure to recognize the realities of the world. The Oscar will in time be diminished, not enhanced, for this pathetic attempt to cling onto the technologies and business models of yesteryear.
Certainly, there will be a place for theatrical public display of films in our culture for all of the foreseeable future. Instead of haviing an opportunity to grab a piece of the pie, MPAA has rendered itself a piece of the past.
Slashdot Mirror
Codewarrior became pervasive as a development tool for building serious applications, and with that, the death of open source for the Mac.
The bottom line is that it is just too damned hard to port most stuff to the MacOS, simply because there is no infrastructure for porting (and then maintaining the port). For example, the most recent port of GCC to MacOS is ancient, and from that comes obstacles to maintain anything else in the OSS community.
The lack of a solid command line environment is only partially an explanation -- MPW is free (at least now it is), and could have been a springboard for free development. But we just never had the technogeeks interested enough in these fundamental infrastructure tools to move forward.
Absent a compiler, makesystem and uniform libraries to use other code, there never was the critical mass to do serious builds of serious software. The absent of the serious stuff meant the benefit of OSS was never felt or perceived by MacTech community -- including those of us who live to breathe in U*ix on other platforms.
There needed to be a core of beautiful tools before a core of beautiful applications could be found. Build that (on any platform) and they will come.
MacOS X has this basis built-in. Perhaps things will change soon. Time will tell.
Boies' brief is an impressive tour de force of legal advocacy. The legal crux of his argument is NOT copyright misuse (whether because of antitrust or generic equitable bases), which is legally a longshot, or even the claim that the ARHA permits private copying. It is the following, prosaic legal argument, mentioned several times in past threads on the subject:
(1) Napster doesn't copy anything itself directly, so it is not guilty of copyright infringement.
(2) The Napster architecture is capable of substantial noninfringing uses, and thus under the Supreme Court Sony Betamax case, there can be no contributory infringement, to wit:
(a) consumers can use napster to "space-shift" (apparently the relativistic equivalent of Sony's time-shifting) works for which they have already purchased copies (supported by ARHA on policy grounds as fair use, even if not a direct defense);
(b) consumers can use napster to "try-before-you-buy," another variant of time-shifting; and
(c) individuals can use napster to obtain access to works of artists who consent to the distribution, including big guys sick of dealing with "standard" record terms and little guys who can't get a record deal.
Since these guys don't infringe, Napster can't be guilty of contributing to their infringement. Since a substantial number are doing (1), (2) or (3) [At least 10-20%, even if you take RIAA's expert surveys], the Supreme Court says no infringement.
Judgment for the Defendants, Plaintiffs take nothing and go without day.
The crux of this is that it is an unattractive argument -- very legalistic, and inviting factual distinctions from Sony. Boies recognized that this intellectually solid legal argument doesn't "move" an impartial or unconvinced party.
Thus, the thrust of the brief is to talk about POLICY. The beauty of the argument is that it shifts the moral high ground -- turning the "Evil Pirate against Poor Artists" argument into one of "Big Bad Business beats up on its Own Consumers, screwing the Artists as it goes, and threatening the Internet and the First Amendment along the way."
For that Boies scores high marks. He makes the legal case, and goes on to point out the nastiness and contradictory conduct of RIAA to date. But at the heart and sole of this is the legal peg for the judge to hang her hat once she "sees the policy"
I have read lots of briefs. This is a beautiful piece of work. It is a subtle one that hides the strategy even as it executes it with precision. Note how it states beautifully the case we made in this very forum, but without the histrionics, and therefore with much greater power and persuasive force.
It's a beautiful piece of work that made me regret a bit, for the first time in months, that I gave up computer law in favor of actually building software.
Consider circumstances where the operating system becomes subsumed in application software -- suddenly the concession to reality of permitting distribution of a GPL'd application together with a proprietary application. In the context of some OODL's, this distrinction between operating system and application dissolves.
Consider Smalltalk-80 and modern day open-source derivatives, such as Squeak. In Squeak, all objects, sources and applications co-exist in a Smalltalk "image." Because of the nature of late-bound OODL programming, it is IMPOSSIBLE to combine Squeak with GPL code without infecting each and every application in the image -- this is because the image is not the operating system.
Unfortunately, this makes it legally impossible to merge GPL code with Squeak without rewriting large portions of that code, which while open source cannot co-exist with GPL. Too bad for Squeak, and too bad for the GPL. Moreover, too bad for the community, which is deprived of excellent software that could have been.
Why can't Publius' enemies defeat the system merely by anonymously spamming all the servers with large files of random text? Unless the authors are limited to a defined group of people (in which case they are not anonymous), wouldn't this strategy eventually suck up all Publius server resources, thereby censoring the text by drowning?
Perhaps the marketplace of ideas requires antitrust laws, too?
At the outset, count me in as a huge Open Source fan. I use and contribute OSS regularly, and am a true believer in the fruits of the movement (or at least one or more definitions of the "movement").
Further, let me say at the outset that OSS provides and has provided a large set of tools of enormous value to game developers. The technical side of game design is far easier today than once it was. The publication by leading lights of their technical works (which happened only under the covers in the old days) has helped to improve the state of the art greatly.
However, that being said, let me make this remark: a great game is not a pretty game; a pretty game is not a great game. A highly technical game need not be pretty or great; and vice vice versa. What is more, it is naive to believe that there is any clear division between the "art" of game design and the "pure tech" of game execution. (let alone the "art" and "pure tech" of the art).
A great game, unlike many great things, is not something that lends itself well to specification; and is particularly not something that lends itself well to production by independent actors. There is often a time when you know you are "just hacking," and you know you are "just making shit up to be fun," but it is not a readily engineerable task. The subtlest change can make a useless game great and a great game useless -- and it may have nothing or everything to do with design -- and it may have nothing or everything to do with hackery.
In short, game design, like movies, theatre and most purely artistic efforts, can be the result of collaborating artists and technicians, but to be great requires a central focused vision articulated and enforced by one or a very small community of brilliant folks. Like a director for a theatrical production, there will be much reliance on the purely artistic contributions of others and the purely technical contributions of others -- but the greatness comes from the gestalt.
The Masterplay occurs as the result of technical excellence, so perfectly and cunningly crafted as to transcend to an art. Such excellence does not happen by accident, or by consensus; at least in my experience.
Open Source Gamery may well be possible, but like Harvard Berkman Center's "Open Law" efforts, is really a different paradigm sucking up a popular term.
Yes, we will have Open Source games as we understand them, but they are unlikely to be truly great. In time, there will be collaborative game design environments, perhaps that call themselves Open Source -- but that doesn't mean anything really.
Great games will not come from consensus. Killer shoot-em-ups certainly can -- and some may be truly pretty and truly beautiful. But me-too is me-too. What will stun us is the truly surprising. the different. the great.
That will come from a small, focused group, IMHO; and not by consensus.
Let me say at the outset that I am likewise unfond of some of these warranties. But that doesn't alter the fact that the posted statement:
is just bull. As with the UCC and the common law, all implied warranties can be disclaimed in a record, indeed with the very language of most current licenses. The words "AS-IS" get rid of most of the warranties, and the rest (suitability for a particular purpose and title and infringement and the like) can be fixed with certain magic language prescribed by the Act. Just like the UCC. Nothing new here. The siren rang by the poster isn't the truth.
Don't take my word for it. Read for yourself. Section 406 of the UCITA expressly provides:
In fact, I am an attorney. One who has been practicing primarily computer law for the past ten years. I just finished a term as chairman of the Florida Bar Computer law committee. I am intimately familiar with the bill, and have been frequently amazed at some of the things people who are political opponents of its provisions will say. The bill has real, legitimate problems -- this is not one of them.
Now, this is not a reason to take me at my word on this point, or to accept the unsupported conclusions I laid out above. I am simply pointing out that neither is the "I have a lawyer-friend downtown" remark a reason for the same.
If you think that UCITA imposes a warranty that cannot be disclaimed, one that would not be likewise imposed by the common law or the UCC, by all means, please identify it, and I will address your point.
Thus far, all we have in this colloquy (both sides) is non-falsifiable blather. If you or your friend wish to support this proposition, please do so.
It is ironic how slashdotters so often abuse legislators for being unaware of technology, when in fact, it is the slashdotters who do not understand so well the law.
The poster is correct, this bill does not require any particular technology be used to authenticate -- only that whatever mark is fixed or logically associated with the document was made with the intent to sign the document.
If I write an e-mail "I'll buy 1000 widgets, $10 ea. terms 2/10 net 30, love moi," that would be a signed writing.
This is how the law has always been. An x on a sheet of paper marked with a #10, or even the slapping of such a document on a spool is also legally sufficient.
What the poster doesn't seem to appreciate is that the law has never imposed a unique technology for signing. In particular, signature technologies to date have never been reliable sources of authentic evidence of intent to sign. In practice, such evidence is rarely used to resolve disputes anyway -- far more probative are the circumstances under which the alleged signature was made, or an eye-witness.
There are sound reasons for keeping the government out of the business of telling us how to do business. This bill is pro-liberty, granting MORE flexibility to the public and business, not less.
At any rate, here is the most signficant point -- the vast majority of agreements, including the one described above -- DO NOT REQUIRE SIGNATURES AT ALL. Thus, little is changed. These bills are primarily to facilitate the sale of expensive goods, real estate and highly complex service agreements. (Also, I suppose, it would make a difference for exclusive licenses or the assignment of a copyright).
Of COURSE, if it really matters, you should use true digital signatures, biometrics, or better yet, take a hostage to hold in escrow. But it should be YOU AND I, not the Congress who decides what technologies should be used.
An electronic "signature" can be something as simple as clicking 'I agree' or pressing '1' on your phone. And now Congress wants such actions to be legally binding
The vast majority of agreements you sign do not require your signature to be legally binding. Only a few would be rendered invalid in the absence of a signed writing under the "Statute of Frauds."
Nearly all license agreements are enforeceable -- all that is required is offer, acceptance and consideration. No signature or authentication is required.
Some agreements, however, do require signatures. These are typically contracts concerning real estate, for goods in excess of $500.00, and an obscure, but small percentage of service agreements that are "legally impossible" to perform within a year.
Thus, precious few documents would be affected by this bill. On the other hand, some substantial transactions presently require real-time, real-space signing ceremonies, because the stakes are simply too high to risk permitting hypertechnical "form-based" defenses.
True, the ES law does not require that any particular authentication technology be used to make a signature binding. Neither does the common law require that blue pens, ink, pencil or even a writing be used. Invisible Ink *is* binding, as is a shaved cow, or a mark made in the sand. You can sign "Minnie Mouse," or "X" and all is legally well. So, by the way, are facsimiles, typewritten signatures on paper, hand-stamps and marks made using someone else's blood.
The point is that the law has NEVER tried to inquire into the validity of any particular signing (the legal term, unfortunately is authentication -- which has a special meaning in the context in which we discuss matters) means. The entire idea is that parties should be free to decide whether they are satisified with the means used.
There is substantial authority that would support the legal effectiveness of an e-mail signature -- the point is that one would not rely upon it as the basis for a sale of a $100,000,000 business -- who really wants to be the first to test some new area of law, or provide a defendant a basis to raise some hypertechnical defenses. The law basically saves money.
You get to decide whether to sign it or not, and you get to decide whether to accept another's signature or not. That's the way the law SHOULD be. The government shouldn't dicate what color ink I should use, or whether I should use ink at all.
Its all about eggs in baskets. This permits cheaper commerce to be safer. It probably codifies the common law anyway. It doesn't hurt anything.
Don't worry. Be happy.
This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors.
Nonsense. This is more pabulum and disinformation designed to stir up dissent among the ill-informed. I commend to all my colleagues the text of the bill -- read the darned thing (including the commentary) and then decide for yourself.
Express warranties need not be given, and implied warranties can (almost always*) be disclaimed. You can easily give a BSD-style license under UCITA. If anything, the situation under UCITA would be slightly better: you will have somewhat greater assurance that warranty disclaimers are enforceable.
There are a few pieces of the common law, UCC (which would apply in the absence of UCITA) and UCITA that cannot be disclaimed as a matter of law. In this regard, UCITA is not substantively different from the status quo.
I litigated patent infringement for a number of years until I decided to go back to tech. For reasons I really can't figure out, the vast majority of my cases involved patent defense. While I have seen some bad-news patents, and actually succeeded in invalidating a few, I can tell you that the only cases involving bullshit claims are the ones that settled quickly.
For the most part, folks really don't slam down hundreds of thousands of dollars to litigate a losing case, even to beat up on a littler guy. Once you show them that you can hurt them, they go away. Really, they do.
I did have one case that went way further than it should have gone -- and it hurt the Plaintiff more than helped him. The rest of the industry in question ended up backing the little guy, and we ended up with so strong a position that they ultimately settled by offering my client (the defendant) $100,000 and fees to agree to let the Plaintiff drop its case.
So, in the end, the system works OK. The reason there isn't much need for additional litigation is that bullshit patents are generally ignored, close patents are rarely asserted on cost/benefit, and other patents SHOULD be asserted -- that's how we resolve these kinds of disputes in the U.S.
The GPL would be the only basis by which a person of computer software has a right to reproduce, distribute or make derivative works of the software. If the GPL were unenforceable for any reason, then the FSF might be out of luck on a contract theory, but would therefore be able to sue on a Copyright theory.
The defendant cannot consistently argue that the GPL is unenforceable, but nevertheless grants the defendant rights under a copyright. Even if a defendant argues for an implied license, such licenses can be revoked, leaving the company out of luck. No company can claim to have reasonably relied upon the implied license as a theory for making the license irrevocable, because it is unreasonable to assume that the implied license was not contingent upon the requirements (whether or not enforceable as a contract) of the GPL.
Full circle. No way out. The only option for the defendant is to decide which way she loses.
There is no consideration issue.
There doesn't need to be any money or financial asset changing hands -- an exchange of non-illusory promises suffices.
Virtually all bilateral contracts survive challenges to formation on grounds of consideration, so long as each party is somehow bound to do, or refrain from doing, something. In the present case, the copyright owner grants a license, and the other party agrees to refrain from doing certain things.
tool sets aren't an issue -- they can be shipped with unlinked proprietary software under the provisions of the GPL.
And MOST of what is a FreeBSD distribution isn't GPL. Most of it is BSD.
Sounds like you are too easily confused.
If you take the view that what you believe is right, and what you do not is not, then of course the Constitution can not sway you one way or the other.
The Constitution is a consensus instrument, of course, and from that it draws both its persuasive strength and its weaknesses. If the Oracle of Right holds too small a minority view, it is true, the document will not be changed appropriately.
In your supposedly "damning" example, however, this was not the case. Eventually, the majority view did prevail. That may constitute a "might makes right" view, indeed, but such is the nature of majority rule, and of supermajority rule to amend a Constitution. We check that majority right by providing limits, as in the bill of rights, and have faith that the rest will take care of itself.
It may not be the best way, but in truth, I don't know of a better way. I, for one, think the Constitution is a deep, wondrous instrument. Whatever its historical flaws, it seems to have been self-healing over time. As between its dicta, and your undifferentiated assertions as to what is "right," I for one know which is the more persuasive.
You argue against the Constitution by quoting language that has been amended out or rendered legally obsolete. Not the strongest argument, IMHO.
The Patent Act provides for an award of costs and fees in an extraordinary case -- thus, clearly invalid patents may not be asserted without risk.
There are other causes of action (including criminal causes for perjury) if claims are falsely stated in a Patent Application.
I have seen cases where patent owners have been fined and punished for misrepresenting their rights to the public. It's not common, but it does happen.
On the other hand, the vast majority of cases brought to trial are far more reasonable disputes -- cases where both parties have a reasonable argument. (Most cases where the rights are slam-dunk are settled well in advance of trial, let alone appeal).
Just because something is "in the constitution" does not mean that is it right. Get over yourself.
He didn't say it was right. He said it was the law. And, in fact, it is and has been the law for more than 200 years.
The particular clause your are unfond of here, is no longer the law -- we had to fight a civil war to find out why it shouldn't be.
To suggest that the Constitution, as amended, does not codify American social norms in some sense is wrong-headed. If there was a sea-change in political views, the means exist to amend it. Not only hasn't this ever been proposed for Article I, Section 8 -- that issue has never been on the political scope.
Of course, the fact that the proposition is normative in America, doesn't make it right either. The principles of Patent and Copyright law certainly aren't "right" just because they are in the Constitution.
On the other hand, the fact that they have been organic law of this nation for more than 200 years is highly persuasive. "Get over yourself," while pithy, certainly does not constitute much of an argument to the contrary.
. . . we should resolve this point properly. Have a debate and vote on it.
Now, to do that we must first decide who is eligible to vote, and then how many votes each such person gets. Then we must establish the rules of order for the voters and non-voting stakeholders to comment.
Perhaps we should issue an RFC first? Let's appoint a committee to come up with a first draft.
The government's next move is to either appeal to the Supremes or ask for a full trial (IANAL - I don't understand why the radically different options)."
There was no final decision on appeal, just an interim (interlocutory, in lawspeak) appeal from the preliminary injunction finding the law unconstitutional. Interlocutory jurisdiction is proper (indeed on an expedited basis) when an injunction is granted or upheld.
This is a particularly important issue in a First Amendment censorship case. There, the government bears the burden to prove by clear and convincing evidence that the law was necessary to achieve a compelling governmental interest and that no less intrusive means suffice to serve that interest. This is an enormous burden, which the government almost always loses.
On the record, the factfindings of the District Court make it peculiarly difficult for the government to win on appeal. Although there was an extensive hearing with detailed factfindings, the government may want to take a second byte at the Apple with the district court to make a record more suitable for Supreme Court review. If they go straight to the Supremes, the case will be decided (at least for the moment) primarily in view of the factfinding, which the Supes may not question absent clear mind loss on the District Court judge.
On the other hand, if they go straight up, and Supes affirm, they can still go back down, make their record, and go all the way back up after the final decision.
That's the ropes of the American justice system.
Hope this was of interest.
Best,
A
Sorry, I meant "sharing that with many other registrars", not "registrants."
Network Solutions does not own ANY domain names apart from those that they themselves have registered. I agree that they should not be obliged to support any deadbeats who haven't paid their fees (including Microsoft), but once the domain name is freed, it should go back in the pool for a first-come, first-served process.
.com space, sharing that with many other registrants.
.com space.
Network Solutions, in its capacity as a government contractor, has already been through a carefully negotiated and litigated process to determine that they couldn't charge as much as $100 per two years, reducing the price to $75.00.
Further, Network Solutions is no longer the "owner" of
Auctioning off domain names is something for the non-contractors to do -- NSI cannot do both without a conflict of interest, and certainly the appearance of impropriety. IMHO, they should either stop the practice immediately, or be stripped of their right to issue SLDN in
which one of the Baby Bills gets the IP?
Really, they shouldn't throw 'em up so easily. With a softball like that, I can just see the headlines:
C# Falls Flat
Microsoft hits a sour note
and so on. Perhaps they took the view that smart people wouldn't even touch the easier ones.
You purchased and used tangible assets. That conduct is subject to tax, either in the form of sales tax or use taxes. In many over-the-counter transactions, the seller collects the taxes pursuant to law for you. In other transactions, they do not.
But in any case, you are liable for the taxes. That's just the way it is.
The fact that goods were purchased by a transaction, in whole or in part, conducted over the Internet has no impact on this whatsoever. If you were advised by a tax counselor or lawyer that you could avoid sales tax to your detriment, sue them for their malpractice, but against the government you have no gripe. If you simpy assumed you could avoid taxes on that basis without the advice of counsel or a tax advisor, then you have no gripe either, but you also have nobody to sue.
Look guys, as much as many of us like to pretend we live in some extra-territorial world here in "cyberspace," that's just a convenient fiction. We live in the real world, with only the two traditional certainties.
To claim surprise for being taxed on use or sales of tangible personal property is, well, just naive.
I gripe about taxes, too. That's one thing. To claim special treatment for e-commerce transactions, well, that's just silly.
If the academy wishes to render itself obsolete, so be it. That's their choice. It won't be the first industry to kill itself off for failure to recognize the realities of the world. The Oscar will in time be diminished, not enhanced, for this pathetic attempt to cling onto the technologies and business models of yesteryear.
Certainly, there will be a place for theatrical public display of films in our culture for all of the foreseeable future. Instead of haviing an opportunity to grab a piece of the pie, MPAA has rendered itself a piece of the past.