It is one thing to say he did many "things" done by wealthy persons. I t is another to suggest that he was wealthy himself. His job, as it was, was to hob-nob in hopes of finding commissions for his music. Period.
An insightful friend of mine, Lee Vodra, commented at follows:
Poverty is _always_ a relative thing. If you're going to try to market your music to the wealthy, and this is even true today for classical composers especially who have to depend on university residencies and grants, you need to be hangin' with the right crowd. To dress so that you're accepted, attend all the right parties, becomes a big marketing expense. And one that he wouldn't have been able to avoid if he wanted to make money composing. Those who hand out grants do not take into account the composer's 401k. It's enough to get by barely.
Can you imagine the man-hours it took to make one of those Prince-type outfits? From what I know, he was always on the edge, financially. That means that if he didn't come up with rent money, he was still out on the street next month. His was a hand to mouth existance. The hand may have had rings on and he may have been eating paté, but the reality was that he had to schmooze or he'd be in debtor's prison. He sold off belongings. When they were gone, he turned to friends.
Poverty is relative also in that it's a combination of pressures and stressors and unless you're actually freezing and starving, it's all about expectations. That he had a wife who was very demanding and liked the high life was a stressor. That he had a father with very high expectations was a stressor. That he had high expectations of himself and wasn't appreciated was a stressor. That a good portion of the people whom he hung with had the means not to worry about money ever again was probably pretty rough because in order to market his music, he had to keep up and play the game. This becomes work just like marketing anything. Beating your head against the wall, year in, year out and getting nowhere is draining for anyone. Poverty is frustration.
If he'd been in a tiny village of peasants making the same money as he did composing, he probably wouldn't have felt it quite so keenly. He also wouldn't have made a living making music at all.
There is a body of law, generally entitled "misuse defenses," whereby a claim that a party plaintiff had wrongly asserted patent rights in violation of antitrust (and sometimes in other circumstances) was a complete defense to patent infringement.
The defense was later extended to Copyright, and then to trademark defenses.
In its heyday, the defense was so popular and strong as to give rise to an automatic inclusion of the defense in every answer. The Federal circuit, at least in recent years, has literally castrated the defense, however.
No doubt, Microsoft has been adjudicated a monopoly. further, Microsoft has been adjudicated an antitrust violator. These two elements are by far the most expensive and difficult to prove in a misuse defense generally, and are now auto-proved in cases against MS.
However, another interesting question relates to the causation issue, whether the anticompetitive conduct must be related to the particular assertion of IP assets. In a case entirely unrelated to the government's lawsuit, involving a patent (not asserted by the government), can it be argued that the anticompetitive conduct of MS generally relates in any way to its subsequent assertion of that patent. Under applicable law, at least for Federal circuit patent law, this may well be difficult, perhaps impossible, for the defendant to prove.
For Copyrights and Trademarks, interestingly enough, it may be much easier for a defendant.
In any case, clients I represented before leaving the law had some success making this argument against Microsoft in the Copyright and Trademark context, at least for the purpose of preliminary motions. But time will tell how the law will come out on this matter.
I don't think Professor Moglen's suggestion is anything like a slam-dunk, but it is certainly one of the many new litigable issues arising from the ashes of this case.
The biggest and most interesting question is how resolution of this case will ease money damage claims by all the aggreived parties in civil antitrust actions.
Copyright only protects against the appropriation of expression by reproduction, distribution or derivation from the original expression. It does not protect against independent development. Microsoft formerly could have relied upon trade secrecy, false and funky documentation and its EULA non-reverse engineering provisions to stick it to those who would attempt to Clean Room the products.
Open Sourcing does two things -- it exposes the technology for review and specification for independent development, and destroys all trade secrets.
It does not, however, preclude assertions of patent protections, which may ultimately be Microsoft's last refuge. Ironically, the two most seminal cases in weakening software patent protections, STAC v. Microsoft and Reiffin (sp?) v. Microsoft, may serve to limit the extent to which Microsoft can stop derivative abuse of its remaining IP rights.
Trade secrecy, while not the most popular tricks, is often the wild card that makes most software cases settle.
While not a panacea, for reasons already noted, open sourcing of Microsoft's code really is a big deal.
The present electronic signature bill does not require a PKI at all. Electronic signatures can be a simple "Love mOM" typed at the end of an e-mail.
Of course, there are sound commercial reasons for wanted to be able to prove authentication in court with the benefit of a PKI, but the law is enabling only (it permits encrypted signatures enforceability, but doesn't require this for enforceability).
You are confusing legal issues here. The concern (legally) over EULAs do not relate to lack of a signature. Some remedial business law:
You do *NOT* as a matter of course require a signature to enter into a contract. Period. If I offer to sell my rabbit to you for $50 bucks, and you say yes, we have an enforceable contract under the law of 49 states (I am not sure about Louisiana law, but who is?).
A signature is only required, generally, when a specific provision of law or common law (known as the statute of frauds) requires it. The most typical scenarios are:
(1) transfer of rights in land; and (2) transfer of goods in excess of $500.
(Which is why software licenses often expressly provide that they do not involve the SALE of software).
There are a few additional scenarios relevant to copyright license rights -- exclusive licenses or transfer of copyrights itself (as opposed to copies of a work or the sale of a license in the work).
Accordingly, the vast majority of EULAs do not require signatures. (Although this is an argument frequently raised against them by lay audiences). An e-signature provision would not raise new legal issues.
The issue with EULAs is the dual arguments that: (1) I never agreed to the EULA; (2) I only agreed to the EULA after I had already paid for and received my copy of the work, hence there is no consideration for the EULA; and (3) Under the UCC, the timing of the post-sale writing, which materially changes the agreement, violates Section 2-207 (battle of the forms) and is therefore unenforceable.
As a matter of course, by the way, these arguments have failed. The only Circuit Court opinion directly on point is ProCD, which held that the agreements are enforceable at the end of the day. Other appellate opinions held certain provisions unenforceable under other rules of law, but not on the ground that no contract existed.
Finally, note that "digitally signature" under the new law does not require any form of encryption or authentication. A simple typed "Love, Mom" will suffice.
. . . these electronic signature laws are wildly overhyped.
There is a vast amount of authority (citations available upon request) strongly suggesting that legal formalities for a signed writing (the so-called statute of frauds) are satisfied by an electronic communication annotated or logically associated with a character or characters manifesting an intent to authenticate (legally, not technically).
In other words, the e-mail:
"Dear bill.
I will buy 1000 Model K frobozinators at $600 per frobozinator to be delivered FOB Tampa no later than thursday. Terms: 2% 10/net 30.
Love, Maria"
would very likely be enforceable under the common law and the UCC -- even if no encryption or other technical encryption was used. Requirements for signature under the common law are amazingly lax. An X, a fold or tear made in the paper, another's name, a shaving on a cow or even a footprint can constitute a signature.
The reason for an e-commerce statute is to make any question clear beyond cavil, so to clear the way for lawyers to permit BIG deals to be done without a signed writing. Imagine a few dozen lawyers at a $100M closing. The boss for the buyer smiles and signs "Minnie Mouse," or an "X," citing the case law suggesting that the signature is binding. Maybe so, you would say if you represented the other side, you would nevertheless ask a literate counterpart on the other side to sign the document "properly."
Its about eggs in baskets. The law should get out of the way of the technology used for signatures, and ratify any actual manifestation of an intent to sign. (electronic documents raise interesting proof issues, but so do traditional physical documents) The risk of misauthentication and the like is a different question to be decided by those who would USE the signature technology, not by those who enforce the agreements into which the parties otherwise clearly entered.
Violations of the FTC Act amounting to false advertising and deceptive business practices is certainly actionable by regulatory agencies (FTC or analogous state regulators under their "little FTC" acts), and can rise to the level of criminal conduct.
Pike's self-styled polemic seems to hit a nerve, while missing entirely on a number of key points (for example, he at once argues that the problem comprises: (i) systems-development can only happen in industry because academia cannot sustain long-term development; and (ii) systems-developme cannot happen in startups and industry because the time-to-market horizon is too short for long-term work. He may well be right on both points, but this doesn't seem to prove the propositions for which the respective points are cited.
In any case, I think he says a number of exciting and salutary things. But the KEY thing seems to have been buried in the comments so far, in his suggestions of things to build:
Only one GUI has ever been seriously tried, and its best ideas date from the 1970s. (In some ways, it's been getting worse; today the screen is covered with confusing little pictures.) Surely there are other possibllities. (Linux's interface isn't even as good as Windows!)
Indeed, the world is not devoid of new GUI ideas, its just that we are all trying so hard to be Microsoft-killers that we spend all our energies trying to do a better version of Windows.
Jef Raskin's recent book, "The Humane Interface," introduces many new and old ideas that deserve a great deal of attention.
I think building a novel (not just better) GUI is probably one area with the greatest degrees of freedom for researchers. Unlike OS, it is not burdened by requisite (albeit there are de-facto) standards, and there is desperate need to improve on the status quo, and some reason to believe that the status quo's problems may be inherent.
Jef suggests one way to do this. There are certainly many other ways.
Build a novel GUI. Give a great Demo. These are the best words I took away from Rob's writing.
There are many linking cases, where linking has been held to be actionable one way or the other, or where hyperlinking has been held to be within the scope of an injunction of some sort. Not that this is good law, but the cases exist.
Outside the US, linking liability has been almost routine. The earliest case in this area, the Shetland Times case, was a hyperlinking case.
Paper does not refuse ink, so lawyers and authorities can issue edicts as they please. If every agency of government limited itself to Constitutional acts, there would be no need for a judiciary to review them.
The Supreme Court has made abundantly clear in ACLU v. Reno that publications on the Internet is protected with equal force under the First Amendment as publication in any other format. Defamation law is likewise closely circumscribed by First Amendment issues.
The case will stand and fall on the same issues any pamphleteering case has stood or fallen.
We aren't provided the actual content for evaluation, and I'm sure I wouldn't take the time to study it at this point anyway.
You CAN commit defamation, regardless of media, and, I suppose, it could go over the limit to the level of a crime. But to be constitutionally sustainable, there are incredible hurdles the government can overcome. It is far easier to be egregiously offensive than it is to be criminally libelous, which is the most likely scenario. (But, as I said, I don't know the facets).
But there is no interesting techological question here -- this is a routine first amendment case.
Since paper does not refuse ink, any license agreement can say whatever any author of the agreement wants it to say. Nevertheless, no agreement, however valid it may otherwise be, can be enforced to the extent unconstitutional, and not even UCITA can overcome the same.
This whining about UCITa neglects the fact that such agreements would be equally enforceable (or unenforceable) without UCITA. Period. The fact that the status quo would permit an agreement with bad ink to be entered into isn't to defend UCITa, just to point out the extent to which the critics will go. Blame it instead on el nino.
The Copyright Act, an act of Congress, expressly provides for fair use of a work, in particular, the excerpting and quotation from a work for the purposes of criticism and such. 17 U.S.C. s. 107. The Copyright Act goes further, expressly preempting state laws, including UCITA to the extent they attempt to create copyright-like rights for subject matter expressly beyond the scope of copyright protection. Further arguments based upon the Commerce clause and implied preemption theories may be asserted as well.
The long and short of this is: (i) UCITA is no better or worse than the status quo in "permitting" these clauses to be enforced; and (ii) these clauses are probably not enforceable anyway to the extent they impinge on fair use.
Realistically, true artists produce art because they have to -- something in their souls move them and won't allow them to not create. I think that a lot of programmers are similar... most of the open source projects began because (a) someone had an "itch" they had to scratch and (b) once they had begun to scratch it, they weren't opposed to helping others scrath their itches, too.
The truth is rather more interesting.
One problem is that today it costs zillions of dollars to produce a film or album.
Perhaps some artists will forego life and livelihood for the "sake of the art," by begging up funds to stretch a canvas or paper to etch out a novel. In the meanwhile, we all lose out while those talented and smart enough to create, but who can't get resources go to law school instead.
However much the artists may "have to" create, no one else needs to give them a dime to do so.
So what's gonna happen if they stole trade secrets???
It wouldn't be good.
Depending upon the statute, the court could grant an injunction against using the product, an award of damages, treble damages, an award of attorney fees and court costs, or worse.
A finding of misapproporiation could also expose Connectix to criminal penalties, including the substantial civil forfeiture provisions of the EEA.
Sorry, the Wired article suggested that Judge Bleem's opinion issued from the 9th Circuit, so I pulled up the most recent Sony case from that Court. (Judge Bleem is a District Court (trial) judge in the Northern District of California, and not a Circuit Court judge, though from time to time District Court Judges are asked to sit temporarily as a Circuit Court judge).
I was unable to find the Connectix opinion available online.
The Bleem case is quite interesting, and is a playstation interpreter case as well. Perhaps Judge Legge was moved, at least in part, by the scolding he received just last week in Bleem?
I suspect that, among other motives, MS is hoping to establish a precedent for "clickwrap" to be a valid mechanism for a binding NDA, in addition to being a mere EULA. Hardly likely. There are so many other, far less invidious, ways for Microsoft to accomplish this, and there is little question (and ample precedent) as to whether one can create a "binding NDA" merely by including a document indicating the matter is, in fact, a secret. There is ample precedent that a EULA is a binding agreement. If true, there would be no question under the contract law of most states that NDA-like provisions would be enforceable. Even if they were not enforceable as contracts, the trade secret law of most states (particularly those that follow the Restatement or the Uniform Trade Secret Act) do not require an agreement or even a written agreement to create enforceable obligations not to use or disclose. In short,
Notwithstanding speculations to the contrary posted in these letters, HTML code will be protected by copyright to the extent that it constitutes original expression fixed in tangible media.
The code will be owned by the individual or individuals who performed the fixation, unless it is a work made for hire. A WMFH can occur only in the case where: (1) it is performed by a geniune employee within the scope of employment; or (2) it is a particular class of work performeed subject to a written document expressly stating that it would be work made for hire.
YES, HTML and related code can be protected. The issue is not whether there can be protection, but rather, what is the scope of that protection. This is, notwithstanding what I have seen posted here to the contrary, a complex question that can turn either way depending upon a host of particular facts.
You should not consider relying upon anything posted here (including the preceding remarks), but should rely instead upon the advice of competent counsel who has considered these issues on your behalf. Anyone who insists that it is "obvious" how these issues will turn without further information is either ill-informed or is furthering an agenda unrelated to your best wishes.
Be careful cutting quotes out of Supreme Court cases! What you need to read is the next sentence in the quoted portion from my reply, which you elided in yours:
". . . . Indeed, it need merely be capable of substantial noninfringing uses."
Therefore, under Sony, RIAA must show that Napster is incapable of substantial noninfringing use.
if the RIAA can show Napster is not widely used legitimately, do they win the case? There are legal Napster users out there (like myself, although I don't use Napster a lot), but I can't imagine there are too many of us.
No, for the reasons stated above. Ask yourself how many consumers really used VCRs for "time-shifting," by programming it to record a show when they are not present. That was the "mere capacity" for substantial noninfringing use identified by the Supreme Court in Sony.
And there are zillions of legitimate "free" music files out there. That alone might be evidence of capacity for (indeed, actual) substantial noninfringing use. Further, why wouldn't playing your records from home at your desk at work be fair use, akin to the "time shifting" blessed by the Supreme Court in Sony?
Thus, RIAA will have to show that there are no legitimate uses, or that the uses are themselves insubstantial or incidental to the product -- not just that there are an insubstantial number of legitimate users.
As I noted in an earlier response, the District Court Opiniondid not make a finding that Napster was liable, only that a particular section of a statutory safe harbor defense against liability would not apply.
If you review the opinion, you will find that Judge Patel, in order to twist the safe harbor statute out of bounds, was forced to arrive at the following conclusion:
Because Napster does not transmit, route, or provide connections through its system, it has failed to demonstrate that it qualifies for the 512(a) safe harbor.
In other words, Judge P found that the safe harbor didn't apply only because Napster did not itself reproduce, distribute or make derivative works! In other words, Napster did not ITSELF DIRECTLY infringe any copyrights, although it very likely provided the means by which others may do so. (the ones whose systems do provide connections).
Unfortunately for the plaintiffs in this case, however, the Supreme Court has already determined the conditions under which a party may be derivatively liable for a direct infirngement by another. In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court clearly stated that there can be no infringement because
the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."
In other words, since Napster is "merely [] capable of substantial noninfringing uses," there cannot be indirect infringement. This, taken with Judge Patel's finding that there was no direct infringement (or she must revisit her determination that the safe harbor did not apply), leads to an ugly Hobson's choice for the Plaintiff's. There is no question that they must lose, just an ambiguity as to how they must lose.
That being said, I am hardly a scholar of the facts of this case, and these conclusions may not be applicable at the end of the day. Nothing I have written here should be taken as legal advice. Still, I think there is quite a glimmer of light in the particular findings Judge Patel issued in her Opinion.
A subtle but important point. Although the article suggested that:
The US District Court in San Fransico has ruled that Napster is not just a "mere conduit" for files, but that it is actually liable for material transfered by the program.
the truth is rather more interesting. The actual opinion makes clear that the ruling made no determination of liability at all.
This opinion merely denied the defendant's motion for Summary Judgment -- it granted no decision in favor of the plaintiffs, who must still prove up and prevail in their case of infringement. Summary Judgment is a means by which a party can short-cut a trial on an issue for which there is no genuine question of material fact. By deciding that the question of liability must go to trial (over the DMCA issue), the judge most certainly did not make a finding of liability. In fact, S.J. motions are rarely granted.
More important, it is significant to note that the issue here was not liability itself, but rather whether the defendant fell under a safe harbor (get out of jail free card) set forth in a bill intended to protect ISPs. The fact that the safe harbor doesn't apply still means that the plaintiff must prove his case, get past the common law "Netcom" standard, and then the Supreme Court "Sony Betamax" case.
Without having reviewed the opinion carefully, this much is certain -- the opinion did not make any finding that the defendant's are liable. Only that the game remains afoot.
The difference between the reading and listening in question is that the use of a program does entail the creation of a work "fixed in media" and "retreivable in perceptible form."
Whatever you may think of this result, make no mistake about it. That's the law. Copies in RAM are reproductions under 17 U.S.C. s. 106.
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Under Copyright law, the owner of the Copyright has the exclusive right to copy, distribute and make derivative works. 17 USC s. 106. Your ownership of a copy gives you the right to dispose of that copy alone, but not other copies. 17 U.S.C. s. 109. There are limited rights that apply to owners of a copy of software, but few licenses grant title to the code. 17 U.S.C. s. 117.
The long and short of it is this: current case law overwhelmingly finds that the loading of a COPY of a computer program into RAM for execution constitutes a copying of the software. Such copying violates Section 106 and is therefore an infringement unless excluded under Sections 107, 109 or 117. This is generally not the case. I gave complete citations to these cases last month, and don't have them at my disposal now (I recently abandoned my legal practice to get back to tech work), but the party plaintiffs, respectively were MAI and Southeastern, and they were both 9th Circuit cases.
Whatever you might think should be the law, let us not pretend that we are doing more than wishful thinking in this regard. If GPL grants no right to use, then under these cases you don't have a right to use the code. For this reason I prefer the more "liberal" construction I give to those licenses.
If that is the case, the patent office has just granted a duplicate patent with more specific terms.
It is important not to confuse patentability with infringement. In the scenario of two patents issuing, the first, A, being more general, and the second, later patent B, having all of the elements of A, but with more specific terms, that would not preclude the validity of B.
Assume the only claim of patent A discloses claim elements A1, A2 and A3, and that the only claim of patent B claims elements A1, A2, A3 and B1. Only the following is clear:
1) An apparatus practicing B would probably infringe A, since it has all of the claimed elements A1, A2 and A3. (There are some legal doctrines that would preclude infringement, but they would rarely apply).
2) However, B *is NOT* anticipated by A. While A discloses A1, A2 and A3, it does not have the limitation B. (This would also be true if B claimed A1, A2 and a green A3). If the differences between the more specific limitations satisfy the legal obviousness test of Section 103, B may well be patentable, even though one couldn't build it without infringing A.
Consider for example, if I had a patent on the chair generally. You might well be able to obtain a patent on a rocking chair (a specific kind of chair), but this would not mean that by obtaining the patent you could build a rocking chair without my consent. (And while I can certainly build rockerless chairs without infringing your patents, I would be precluded from building chairs with rockers!)
Slashdot Mirror
An insightful friend of mine, Lee Vodra, commented at follows:
And traceroute suddenly offers new military applications as well.
There is a body of law, generally entitled "misuse defenses," whereby a claim that a party plaintiff had wrongly asserted patent rights in violation of antitrust (and sometimes in other circumstances) was a complete defense to patent infringement.
The defense was later extended to Copyright, and then to trademark defenses.
In its heyday, the defense was so popular and strong as to give rise to an automatic inclusion of the defense in every answer. The Federal circuit, at least in recent years, has literally castrated the defense, however.
No doubt, Microsoft has been adjudicated a monopoly. further, Microsoft has been adjudicated an antitrust violator. These two elements are by far the most expensive and difficult to prove in a misuse defense generally, and are now auto-proved in cases against MS.
However, another interesting question relates to the causation issue, whether the anticompetitive conduct must be related to the particular assertion of IP assets. In a case entirely unrelated to the government's lawsuit, involving a patent (not asserted by the government), can it be argued that the anticompetitive conduct of MS generally relates in any way to its subsequent assertion of that patent. Under applicable law, at least for Federal circuit patent law, this may well be difficult, perhaps impossible, for the defendant to prove.
For Copyrights and Trademarks, interestingly enough, it may be much easier for a defendant.
In any case, clients I represented before leaving the law had some success making this argument against Microsoft in the Copyright and Trademark context, at least for the purpose of preliminary motions. But time will tell how the law will come out on this matter.
I don't think Professor Moglen's suggestion is anything like a slam-dunk, but it is certainly one of the many new litigable issues arising from the ashes of this case.
The biggest and most interesting question is how resolution of this case will ease money damage claims by all the aggreived parties in civil antitrust actions.
The following algorithm, though peculiarly simple, was single-handedly responsible for DOUBLING sales of shampoo:
1. Lather
2. Rinse
3. Repeat
I seem to recall that Nolan Bushnell did a similar thing in the instructions for Pong. Does anyone recall what those were?
Copyright only protects against the appropriation of expression by reproduction, distribution or derivation from the original expression. It does not protect against independent development. Microsoft formerly could have relied upon trade secrecy, false and funky documentation and its EULA non-reverse engineering provisions to stick it to those who would attempt to Clean Room the products.
Open Sourcing does two things -- it exposes the technology for review and specification for independent development, and destroys all trade secrets.
It does not, however, preclude assertions of patent protections, which may ultimately be Microsoft's last refuge. Ironically, the two most seminal cases in weakening software patent protections, STAC v. Microsoft and Reiffin (sp?) v. Microsoft, may serve to limit the extent to which Microsoft can stop derivative abuse of its remaining IP rights.
Trade secrecy, while not the most popular tricks, is often the wild card that makes most software cases settle.
While not a panacea, for reasons already noted, open sourcing of Microsoft's code really is a big deal.
The present electronic signature bill does not require a PKI at all. Electronic signatures can be a simple "Love mOM" typed at the end of an e-mail.
Of course, there are sound commercial reasons for wanted to be able to prove authentication in court with the benefit of a PKI, but the law is enabling only (it permits encrypted signatures enforceability, but doesn't require this for enforceability).
You are confusing legal issues here. The concern (legally) over EULAs do not relate to lack of a signature. Some remedial business law:
You do *NOT* as a matter of course require a signature to enter into a contract. Period. If I offer to sell my rabbit to you for $50 bucks, and you say yes, we have an enforceable contract under the law of 49 states (I am not sure about Louisiana law, but who is?).
A signature is only required, generally, when a specific provision of law or common law (known as the statute of frauds) requires it. The most typical scenarios are:
(1) transfer of rights in land; and
(2) transfer of goods in excess of $500.
(Which is why software licenses often expressly provide that they do not involve the SALE of software).
There are a few additional scenarios relevant to copyright license rights -- exclusive licenses or transfer of copyrights itself (as opposed to copies of a work or the sale of a license in the work).
Accordingly, the vast majority of EULAs do not require signatures. (Although this is an argument frequently raised against them by lay audiences). An e-signature provision would not raise new legal issues.
The issue with EULAs is the dual arguments that: (1) I never agreed to the EULA; (2) I only agreed to the EULA after I had already paid for and received my copy of the work, hence there is no consideration for the EULA; and (3) Under the UCC, the timing of the post-sale writing, which materially changes the agreement, violates Section 2-207 (battle of the forms) and is therefore unenforceable.
As a matter of course, by the way, these arguments have failed. The only Circuit Court opinion directly on point is ProCD, which held that the agreements are enforceable at the end of the day. Other appellate opinions held certain provisions unenforceable under other rules of law, but not on the ground that no contract existed.
Finally, note that "digitally signature" under the new law does not require any form of encryption or authentication. A simple typed "Love, Mom" will suffice.
. . . these electronic signature laws are wildly overhyped.
There is a vast amount of authority (citations available upon request) strongly suggesting that legal formalities for a signed writing (the so-called statute of frauds) are satisfied by an electronic communication annotated or logically associated with a character or characters manifesting an intent to authenticate (legally, not technically).
In other words, the e-mail:
"Dear bill.
I will buy 1000 Model K frobozinators at $600 per frobozinator to be delivered FOB Tampa no later than thursday. Terms: 2% 10/net 30.
Love, Maria"
would very likely be enforceable under the common law and the UCC -- even if no encryption or other technical encryption was used. Requirements for signature under the common law are amazingly lax. An X, a fold or tear made in the paper, another's name, a shaving on a cow or even a footprint can constitute a signature.
The reason for an e-commerce statute is to make any question clear beyond cavil, so to clear the way for lawyers to permit BIG deals to be done without a signed writing. Imagine a few dozen lawyers at a $100M closing. The boss for the buyer smiles and signs "Minnie Mouse," or an "X," citing the case law suggesting that the signature is binding. Maybe so, you would say if you represented the other side, you would nevertheless ask a literate counterpart on the other side to sign the document "properly."
Its about eggs in baskets. The law should get out of the way of the technology used for signatures, and ratify any actual manifestation of an intent to sign. (electronic documents raise interesting proof issues, but so do traditional physical documents) The risk of misauthentication and the like is a different question to be decided by those who would USE the signature technology, not by those who enforce the agreements into which the parties otherwise clearly entered.
Violations of the FTC Act amounting to false advertising and deceptive business practices is certainly actionable by regulatory agencies (FTC or analogous state regulators under their "little FTC" acts), and can rise to the level of criminal conduct.
In any case, I think he says a number of exciting and salutary things. But the KEY thing seems to have been buried in the comments so far, in his suggestions of things to build:
Indeed, the world is not devoid of new GUI ideas, its just that we are all trying so hard to be Microsoft-killers that we spend all our energies trying to do a better version of Windows.
Jef Raskin's recent book, "The Humane Interface," introduces many new and old ideas that deserve a great deal of attention.
I think building a novel (not just better) GUI is probably one area with the greatest degrees of freedom for researchers. Unlike OS, it is not burdened by requisite (albeit there are de-facto) standards, and there is desperate need to improve on the status quo, and some reason to believe that the status quo's problems may be inherent.
Jef suggests one way to do this. There are certainly many other ways.
Build a novel GUI. Give a great Demo. These are the best words I took away from Rob's writing.
There are many linking cases, where linking has been held to be actionable one way or the other, or where hyperlinking has been held to be within the scope of an injunction of some sort. Not that this is good law, but the cases exist.
Outside the US, linking liability has been almost routine. The earliest case in this area, the Shetland Times case, was a hyperlinking case.
Paper does not refuse ink, so lawyers and authorities can issue edicts as they please. If every agency of government limited itself to Constitutional acts, there would be no need for a judiciary to review them.
The Supreme Court has made abundantly clear in ACLU v. Reno that publications on the Internet is protected with equal force under the First Amendment as publication in any other format. Defamation law is likewise closely circumscribed by First Amendment issues.
The case will stand and fall on the same issues any pamphleteering case has stood or fallen.
We aren't provided the actual content for evaluation, and I'm sure I wouldn't take the time to study it at this point anyway.
You CAN commit defamation, regardless of media, and, I suppose, it could go over the limit to the level of a crime. But to be constitutionally sustainable, there are incredible hurdles the government can overcome. It is far easier to be egregiously offensive than it is to be criminally libelous, which is the most likely scenario. (But, as I said, I don't know the facets).
But there is no interesting techological question here -- this is a routine first amendment case.
Since paper does not refuse ink, any license agreement can say whatever any author of the agreement wants it to say. Nevertheless, no agreement, however valid it may otherwise be, can be enforced to the extent unconstitutional, and not even UCITA can overcome the same.
This whining about UCITa neglects the fact that such agreements would be equally enforceable (or unenforceable) without UCITA. Period. The fact that the status quo would permit an agreement with bad ink to be entered into isn't to defend UCITa, just to point out the extent to which the critics will go. Blame it instead on el nino.
The Copyright Act, an act of Congress, expressly provides for fair use of a work, in particular, the excerpting and quotation from a work for the purposes of criticism and such. 17 U.S.C. s. 107. The Copyright Act goes further, expressly preempting state laws, including UCITA to the extent they attempt to create copyright-like rights for subject matter expressly beyond the scope of copyright protection. Further arguments based upon the Commerce clause and implied preemption theories may be asserted as well.
The long and short of this is: (i) UCITA is no better or worse than the status quo in "permitting" these clauses to be enforced; and (ii) these clauses are probably not enforceable anyway to the extent they impinge on fair use.
As I said, blame it on el nino.
Realistically, true artists produce art because they have to -- something in their souls move them and won't allow them to not create. I think that a lot of programmers are similar ... most of the open source projects began because (a) someone had an "itch" they had to scratch and (b) once they had begun to scratch it, they weren't opposed to helping others scrath their itches, too.
The truth is rather more interesting.
One problem is that today it costs zillions of dollars to produce a film or album.
Perhaps some artists will forego life and livelihood for the "sake of the art," by begging up funds to stretch a canvas or paper to etch out a novel. In the meanwhile, we all lose out while those talented and smart enough to create, but who can't get resources go to law school instead.
However much the artists may "have to" create, no one else needs to give them a dime to do so.
So what's gonna happen if they stole trade secrets???
It wouldn't be good.
Depending upon the statute, the court could grant an injunction against using the product, an award of damages, treble damages, an award of attorney fees and court costs, or worse.
A finding of misapproporiation could also expose Connectix to criminal penalties, including the substantial civil forfeiture provisions of the EEA.
Sorry, the Wired article suggested that Judge Bleem's opinion issued from the 9th Circuit, so I pulled up the most recent Sony case from that Court. (Judge Bleem is a District Court (trial) judge in the Northern District of California, and not a Circuit Court judge, though from time to time District Court Judges are asked to sit temporarily as a Circuit Court judge).
I was unable to find the Connectix opinion available online.
The Bleem case is quite interesting, and is a playstation interpreter case as well. Perhaps Judge Legge was moved, at least in part, by the scolding he received just last week in Bleem?
The opinion in Sony v. Bleem, No. 99-17137 (9th Cir. 2000), is available online at the
Ninth Circuit Court of Appeals web site
I suspect that, among other motives, MS is hoping to establish a precedent for "clickwrap" to be a valid mechanism for a binding NDA, in addition to being a mere EULA. Hardly likely. There are so many other, far less invidious, ways for Microsoft to accomplish this, and there is little question (and ample precedent) as to whether one can create a "binding NDA" merely by including a document indicating the matter is, in fact, a secret. There is ample precedent that a EULA is a binding agreement. If true, there would be no question under the contract law of most states that NDA-like provisions would be enforceable. Even if they were not enforceable as contracts, the trade secret law of most states (particularly those that follow the Restatement or the Uniform Trade Secret Act) do not require an agreement or even a written agreement to create enforceable obligations not to use or disclose. In short,
Notwithstanding speculations to the contrary posted in these letters, HTML code will be protected by copyright to the extent that it constitutes original expression fixed in tangible media.
The code will be owned by the individual or individuals who performed the fixation, unless it is a work made for hire. A WMFH can occur only in the case where: (1) it is performed by a geniune employee within the scope of employment; or (2) it is a particular class of work performeed subject to a written document expressly stating that it would be work made for hire.
YES, HTML and related code can be protected. The issue is not whether there can be protection, but rather, what is the scope of that protection. This is, notwithstanding what I have seen posted here to the contrary, a complex question that can turn either way depending upon a host of particular facts.
You should not consider relying upon anything posted here (including the preceding remarks), but should rely instead upon the advice of competent counsel who has considered these issues on your behalf. Anyone who insists that it is "obvious" how these issues will turn without further information is either ill-informed or is furthering an agenda unrelated to your best wishes.
Best regards
Be careful cutting quotes out of Supreme Court cases! What you need to read is the next sentence in the quoted portion from my reply, which you elided in yours:
". . . . Indeed, it need merely be capable of substantial noninfringing uses."
Therefore, under Sony, RIAA must show that Napster is incapable of substantial noninfringing use.
if the RIAA can show Napster is not widely used legitimately, do they win the case? There are legal Napster users out there (like myself, although I don't use Napster a lot), but I can't imagine there are too many of us.
No, for the reasons stated above. Ask yourself how many consumers really used VCRs for "time-shifting," by programming it to record a show when they are not present. That was the "mere capacity" for substantial noninfringing use identified by the Supreme Court in Sony.
And there are zillions of legitimate "free" music files out there. That alone might be evidence of capacity for (indeed, actual) substantial noninfringing use. Further, why wouldn't playing your records from home at your desk at work be fair use, akin to the "time shifting" blessed by the Supreme Court in Sony?
Thus, RIAA will have to show that there are no legitimate uses, or that the uses are themselves insubstantial or incidental to the product -- not just that there are an insubstantial number of legitimate users.
If you review the opinion, you will find that Judge Patel, in order to twist the safe harbor statute out of bounds, was forced to arrive at the following conclusion:
In other words, Judge P found that the safe harbor didn't apply only because Napster did not itself reproduce, distribute or make derivative works! In other words, Napster did not ITSELF DIRECTLY infringe any copyrights, although it very likely provided the means by which others may do so. (the ones whose systems do provide connections).
Unfortunately for the plaintiffs in this case, however, the Supreme Court has already determined the conditions under which a party may be derivatively liable for a direct infirngement by another. In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court clearly stated that there can be no infringement because
In other words, since Napster is "merely [] capable of substantial noninfringing uses," there cannot be indirect infringement. This, taken with Judge Patel's finding that there was no direct infringement (or she must revisit her determination that the safe harbor did not apply), leads to an ugly Hobson's choice for the Plaintiff's. There is no question that they must lose, just an ambiguity as to how they must lose.
That being said, I am hardly a scholar of the facts of this case, and these conclusions may not be applicable at the end of the day. Nothing I have written here should be taken as legal advice. Still, I think there is quite a glimmer of light in the particular findings Judge Patel issued in her Opinion.
A subtle but important point. Although the article suggested that:
The US District Court in San Fransico has ruled that Napster is not just a "mere conduit" for files, but that it is actually liable for material transfered by the program.
the truth is rather more interesting. The actual opinion makes clear that the ruling made no determination of liability at all.
This opinion merely denied the defendant's motion for Summary Judgment -- it granted no decision in favor of the plaintiffs, who must still prove up and prevail in their case of infringement. Summary Judgment is a means by which a party can short-cut a trial on an issue for which there is no genuine question of material fact. By deciding that the question of liability must go to trial (over the DMCA issue), the judge most certainly did not make a finding of liability. In fact, S.J. motions are rarely granted.
More important, it is significant to note that the issue here was not liability itself, but rather whether the defendant fell under a safe harbor (get out of jail free card) set forth in a bill intended to protect ISPs. The fact that the safe harbor doesn't apply still means that the plaintiff must prove his case, get past the common law "Netcom" standard, and then the Supreme Court "Sony Betamax" case.
Without having reviewed the opinion carefully, this much is certain -- the opinion did not make any finding that the defendant's are liable. Only that the game remains afoot.
The difference between the reading and listening in question is that the use of a program does entail the creation of a work "fixed in media" and "retreivable in perceptible form."
Whatever you may think of this result, make no mistake about it. That's the law. Copies in RAM are reproductions under 17 U.S.C. s. 106.
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Under Copyright law, the owner of the Copyright has the exclusive right to copy, distribute and make derivative works. 17 USC s. 106. Your ownership of a copy gives you the right to dispose of that copy alone, but not other copies. 17 U.S.C. s. 109. There are limited rights that apply to owners of a copy of software, but few licenses grant title to the code. 17 U.S.C. s. 117.
The long and short of it is this: current case law overwhelmingly finds that the loading of a COPY of a computer program into RAM for execution constitutes a copying of the software. Such copying violates Section 106 and is therefore an infringement unless excluded under Sections 107, 109 or 117. This is generally not the case. I gave complete citations to these cases last month, and don't have them at my disposal now (I recently abandoned my legal practice to get back to tech work), but the party plaintiffs, respectively were MAI and Southeastern, and they were both 9th Circuit cases.
Whatever you might think should be the law, let us not pretend that we are doing more than wishful thinking in this regard. If GPL grants no right to use, then under these cases you don't have a right to use the code. For this reason I prefer the more "liberal" construction I give to those licenses.
Best to all,
A
If that is the case, the patent
office has just granted a duplicate patent with more specific terms.
It is important not to confuse patentability with infringement. In the scenario of two patents issuing, the first, A, being more general, and the second, later patent B, having all of the elements of A, but with more specific terms, that would not preclude the validity of B.
Assume the only claim of patent A discloses claim elements A1, A2 and A3, and that the only claim of patent B claims elements A1, A2, A3 and B1. Only the following is clear:
1) An apparatus practicing B would probably infringe A, since it has all of the claimed elements A1, A2 and A3. (There are some legal doctrines that would preclude infringement, but they would rarely apply).
2) However, B *is NOT* anticipated by A. While A discloses A1, A2 and A3, it does not have the limitation B. (This would also be true if B claimed A1, A2 and a green A3). If the differences between the more specific limitations satisfy the legal obviousness test of Section 103, B may well be patentable, even though one couldn't build it without infringing A.
Consider for example, if I had a patent on the chair generally. You might well be able to obtain a patent on a rocking chair (a specific kind of chair), but this would not mean that by obtaining the patent you could build a rocking chair without my consent. (And while I can certainly build rockerless chairs without infringing your patents, I would be precluded from building chairs with rockers!)