Requiring the labelling of goods is quite a different thing from requiring the labelling of speech. Cases addressing labelling laws make precisely this distinction.
Time will tell whether the Washington Bill or its sisters statutes will withstand constitutional scrutiny. At least a few entities (including EFF) think they step over the line. A full discussion of the First Amendment issues is well beyond the scope of this discussion.
Concerning the allegation of a blanket exception for commercial speech, I respond: the truth is rather more interesting.
The same hand that would permit such regulation, permits mandatory RSACi labelling of websites. Be very careful where you draw the lines between tolerating government regulation of the speech you don't like -- they'll most certainly be coming after you next.
The principal difficulty with most notions of regulatiing spam is that it impinges upon freedom of speech. The same pen that denies broadcasting of unsolicited advertisement also shuts down the Franklin-style pamphleteer. We must not, in my view, preclude people from exercising speech based upon the content of that speech, unless we are regulating a particular kind of constitutionally permissible speech (clear and present danger speech, constitutionally regulable obscenity, and other speech falling within exceptions to the first amendment, false statements). Free speech absolutists might not even want to go that far.
One line of thinking suggests requiring the marking of broadcast unsolicited speech, to facilitate filtering. The difficulty here is that this transforms the problem of unconstitutionally prohibited speech to one of unconstitutionally compelled speech. (Imagine that Congress could pass such a law -- what would preclude it from passing a law requiring the tagging of speech containing "indecent" content, and so forth?)
There is another way, one that does not have these constitutional infirmities: preclude FALSE tagging of the mode of distribution. In other words, make it unlawful to say that speech is NOT spam, when, in fact it is.
How would that help? Simple. We adopt by convention a tag indicating, essentially, that "this transmission, or other transmissions substantially similar, were not distributed to more than 100 persons within the past week without their prior consent." Virtually every non-spam mail (including list service transmissions) satisfies this request. All that needs to be done is to have mail clients routinely insert the tag:
X-DISTRIBUTION: 100, 7
This would, however, constitute a regulable false statement by spammers. Then, individuals can determine whether to opt-in or not. The approach does have its limits, but if the law gives meaningful teeth in its enforcement (statutory damages, award of attorney fees, class action provisions), it will help to keep, at least, the legitimate entities honest, and the illegitimate ones relatively small.
At the very least, it would impact upon the incentive to spam.
As both a former competitor and colleague of Richard's, I am sad to see him leaving the fold. His work with Ultima series will always be well-regarded and honored by those of us, presently and formerly, in the craft. He was one of the first, and most certainly one of the best.
I remember fondly one DragonCon in Atlanta where Richard, playing British, and I, playing Werdna, led an audience of real-time, real-space live role-players in a "battle of epic proportion between good and evil." I still get e-mails from those who were there reminiscing about it.
To my old friend, I say, farewell and G-dspeed! You did us great honor by your works, and gave us all many hours of pleasure in the process.
So saith the Supreme Court. That is the message of this case.
I don't see how this decision could be used to thwart Apple's attempts to protect the iMac design and "look" by design patent.
It limits the scope of their protection to the scope of the design patent.
Correct me if I'm wrong, but when the iMac was first released, it was truly an original and unique design -- older "designer" computers (such as the Acer Aspire series) notwithstanding. When you saw translucent white-and-fruity-colored-plastic, you thought "iMac".
Agreed it is a unique design. It probably is entitled to design patent protection. But that does not give rise to trade dress protection unless and until someone sees an e-Machines machine and says, "gee, that must have come from Apple."
When the first peripherals started coming out that mimicked the iMac design, they were immediately recognizeable as having done so.
But did anyone think they were MADE by Apple? That is what is meant by distinctive for these purposes.
In fact, many (most?) of them were aggressively marketed as "for the iMac", in a blatant attempt to capitalize on the iMac's runaway success. I don't suppose Apple had any problems with these peripherals, since they indirectly promoted the iMac and its original design.
Clearly. But does that mean the design was a designation of SOURCE? That is the factual question that is now raised. It is no longer a question of inherent distinctiveness, but rather than acquired distinctiveness.
Therefore, I believe that in light of this ruling, Apple should in fairness be allowed to obtain patent protection for its design.
They either have them or they don't. Point is that the design patent for the computer probably doesn't stretch to other uses of a similarly designed, but differently shaped machine.
1. I do not necessarily agree that the ruling is "right" and that Apple really should be allowed to obtain protection for its design.
The Supreme Court is not final because it is infallible. It is, however, infallible because it is final. Correct or not, that is the law of this land, unless and until the Congress changes its views.
This is entirely correct -- the case did not weaken or strengthen design patents at all. It is about product configuration and commercial design cases.
On the other hand, the standard for reviewing infringement of a design patent is far less "holistic" and fuzzy than that for an alleged product configuration case. To that end, the case likely had a major impact on Apple's claim.
You think that good games today are often linear because a linear storyline allows the author to control the temp of exposition?
I apologize for taking up so much bandwidth, but I want to make an important point. I do not think that linear games make great games because they tell a story better. Linear games make lousy games.
I think that a tree-based game has a similar problem, of course not as bad as a linear game, but much for the same reason -- the limitations of the potential scope of plot means that there are limitations on the liberties of the protagonist. Hence, the more structure on the story-telling, the better the story-telling, but its still just a hack. Further, the more structure on the story-telling, the worse the simulation (that is the less the interactivity).
This is what I meant by smoke and mirrors.
I am not saying that linear games are good games. I am saying that Poetics-based story telling makes for a good story, and that telling a story without Poetics makes for lousy fiction.
Making a more interactive game requires you to give the player more choices.
My point exactly. For the record, I'm not particularly impressed with a tree-based hierarchy of options any more than I am a linear game, so far as that goes. If you are going to write a simulation, a continuous simulation seems always the least hackneyed. When you can "feel" the discrete granularity of the game, the interaction inherently suffers.
And trust me, I have a detailed sense of how hard it is to build an interactive, non-linear story.
My point, however, is that adding options does not substitute well for story-telling. Either the story-teller is controlling the tempo, per Aristotle's Poetics, or she isn't. The more interaction, the less control is actually possible. (The trick is to make the actual control less perceptible.) And therefore, the less story-telling is actually done.
Almost as proof of my point, you conclude:
. The more you try to "cheat" by having less text, the lower quality the story feels. Writing an interactive, non-linear story is *hard* - the best examples of it are the Choose Your Own Adventure books, not video games, and that's kind of sad.
Sure, because the granularity is obvious, but the control of game tempo is already schemed out -- the story teller has already plotted the graph, and written the several stories based upon each divergence. Thus, the story-teller has more control over the tempo, and better story-telling results. On the other hand, the reason "that's kind of sad" is that Choose Your Own Adventure books (I'm partial to Steve Jackson's, BTW -- do you like any others?) aren't particularly interactive. They're just "drawn that way."
95% of most internet publications are crap. This is because 95% of everything is crap. So what? This doesn't mean that a great e-novel won't be worthy. Trust me, I for one will be a buyer.
Agreed that publishers haven't "gotten it right" yet. However, have you noticed the dismal failure of computer game and other "hot content" media to tell the story well? Sure, we can "show" a very pretty and impressive screenfull of highly interactive and responsive scenarios -- but can we tell a story?
I think not.
Storytelling over the eras has been an art. Since the Poetics, we have understood that timing, the subtle interplay between characters and scenes over delta t, is critical to the telling the story well.
A story must present characters, develop them, make them real, present their backgrounds, and through a series of episodes interact and have conflicts, ultimately reaching a climax and then, the gentle denoument to let us reflect on how they (and we) have changed.
The magic of doing that well requires that the author controls the tempo of the exposition. Too fast, too slow, and the story loses in the telling.
But granting interactivity permits the "reader" to control the tempo, thereby depriving the author of her key expositive tool: exposition itself.
Have you noticed that the best of simulation games are never telling stories well, and the best of text adventures, always seem too controlling and linear? This is because, I think, there is a distinct tradeoff between quality of the storytelling, and the free will permitted the "reader-as-protagonist."
Now, to be sure, the best of us have found tricks -- tricks to permit people to think they have free will when they don't, tricks to permit people to think exposition is being well-paced when it is isn't. This is the smoke and mirrors of the interactive story-telling industry, and we have gotten pretty good at it.
But this is done not through great story telling, or through great simulation writing. It is done through playing the tradeoffs well one against the other. And you can only do that once you recognize that there is a great conflict between exposition and simulation.
In short, don't write off the writer. I will be pleased to read paper and e-books forever. Publishers have much to offer me that my colleagues in the gaming industry can never give me, and vice-versa.
This isn't a medium issue at all, Jon. I don't want the GREAT story tellers bound by the feeling they need to let me interact -- I want them to tell me THEIR story. This isn't to say that our great game designers and simulationists don't do what they do well. I'm just saying that they do what they do differently. It isn't interactive fiction -- its something else.
There's room for it all. And so far as publishing goes, Jon, I think there's plenty of room for the well-delivered internet book.
After doing some more research I must reluctantly conclude that you are correct with regard to Section 117.
I actually wish it weren't so. It doesn't make much difference for the GPL (only in the way some people like to think about it, since GPL *DOES* grant a right to copy), but it makes a great deal of difference in most commercial software cases.
I seems that Section 117 has been vitiated by some rather questionable reasoning in the courts. It is quite remarkable that Congress has not corrected this rather drastic rewriting of the copyright law in the courts, but it has not.
Significantly, the Congress took up precisely this question along with the DMCA, and opted not to change "owner" to "owner or licensee," but instead limited the change to use of software in connection with the repair of computer hardware. Thus, the holding of MAI on its facts was reversed without changing the impact of MAI for the rest of us.
The issue fee for an individual is $605.00, but it is certainly an additional kicker.
I am not sure what you mean about a patent being "useless" if permitted to lapse for failure to pay maintenance fees. All that is lost is the right to exclude -- the document remains prior art, stays of record and continues to be used by searchers. In this same sense, of course, an SIR would be useless starting from the day it was prepared!
The perception that the office issues patents on "basically anything," while understandable, is greatly exaggerated.
It is certainly true that a decent lawyer can probably get something out of any disclosure, it remains to be seen if the claims allowed have any meaningful effect. In most art areas, a survey of USPTO records provides a fairly complete account of the state of the art. Unfortunately, this is not so in software arts and methods of doing business, owing largely to the history of decades of practice (centuries in the latter case) before patents were permitted.
There already exist "registries of neat ideas." They are called trade and academic journals. And they already constitute prior art.
I have a proposal which I think more effectively balances the relevant considerations more adequately than the status quo. You will also find there a brief discussion of the examination process, what it does and more importantly what it does not do. But I certainly would not do away with examination.
Trust me, its not as easy in practice as it may seem.
I am not lawyer, nor am I a rich man. But, if someone set up a charity drive/fund for open source SIR patents, I would gladly donate what I could spare.
You would be wasting, or at least inefficiently using, your money. SIRs are not cheap and they are not patents. For far less money than the minimum $920 per disclosure, we could establish a foundation to publish (and provide quality re-editing) an open source journal for these processes, which would have equally effective prior art effect.
It would be far cheaper, and far more helpful for the movement, if the same applications (to the extent patentable) were filed as applications, matured into patents, and pooled for use in cross-licensing against the real bears. This presumes, of course, that we are actually creating patentable inventions out here in the open source community.
It appears that this type of patent does exactly what Jeff Bezos wanted to do when he patented one click technology -- it establishes prior art and prevents someone else from coming along and patenting the same technology.
As to prior art preclusive effect, a SIR is no different from any published article. And the mere existence of prior art doesn't mean that a given application will have the SIR cited against it. (As noted, SIR's are more expensive in terms of filing fees than issued patents for most entities).
Provisional patents solve the smaller of the two giant problems out there. That is, they solve for the laziness of the patent office in doing research.
There is no such thing as a provisional patent. You can file a provisional application for a utility patent, which can be "re-upped" into a full-fledged application if you did it right. But nothing here would have the results you claim.
If you are referring to Statutory Information Registrations, referred to in the article incorrectly as "SIR Patents", they are a joke. See my earlier response on that subject.
here's one great tidbit: there's a special kind of cheap patent that's perfect for open-source projects!"
Wrong on both counts. SIRs are not patents and they are not cheap. A "Statutory Information Registration" permits an applicant who has no chance of getting a patent issued, to have the USPTO print out a pretty certificate with his disclosure, complete with an issue date, a number and everything. One doesn't need to file an application, you can ask for a SIR from the get-go. (But there is no real reason to do so.)
It is not a patent, does not give you the right to place a patent number (or patent pending) on a product and grants no right to exclude. While the SIR is not examined against prior art, it is examined for compliance with all the formalities and disclosure requirements of Section 112 of the Patent Act, and thus should be reviewed by someone experienced in preparing patent applications.
Ultimately, it has no legal effect at all, except that it serves as prior art to the extent of its disclosure. On the other hand, so does every other publication, whether issued by the PTO or not. We would be far better off publishing a "Journal of Open Source Invention," to provide a source of prior art than relying upon SIRs.
And they are certainly not cheap. The patent office fee for an SIR is $920.00. (As compared to $620.00 for a full U.S. Utility application filed by an individual).
For the open source community, I see no upside for SIR applications.
If your position is correct (that is not clear without talking to someone qualified) then you could be right about trouble with GPL in the us. I sure hope the free world doesn't take it's lead from the collective incompetence that is IP law in the states....
Actually, I wasn't arguing that we are in trouble. The GPL expressly grants a right to make verbatim copies. No problem.
We'd only be in trouble to the extent that the ideological lockstep legal analysis proffered in the root remarks of this thread were correct. Since they are not, we are not in trouble.
Paraphrasing from "The Princess Bride," these words don't mean what you think they mean.
No, all these cases followed adoption of Section 117. Interesting enough, Section 117 was recently changed to change the result in MAI, but solely in the context of running an operating system for the purpose of repairing a machine. Having made the change in this limited context, Congress ultimately ratified the 9th Circuit's holdings outside that context.
EVERY ONE OF THE CASES CITED earlier distinguished Section 117(a), primarily on grounds of the definition of "essential step" and on grounds of the definition of "owner."
I'm pleased to engage anyone on this subject in detail offline if you like. But this is a well-settled area of law, and you need to know a lot more before you start quoting excerpts out of context. In these cases, the Courts concluded that possession of a copy does not, by itself, constitute ownership of that copy. Section 117 raises issues of course, but on balance, it doesn't change the analysis substantially.
you're confusing reproduction with distribution. The GPL only comes into power when you distribute. And that's outside the organization, so RAM doesn't count.
Your confusing my remarks entirely. To summarize:
(i) use is reproduction (that's the legal word for copying) under the Act; (ii) if you aren't licensed to use it under GPL, then in the absence of some other license, the use is unconsented, and we are all pirates.
Thus, the authority to make copies and derivative works for ourselves under Section 1 is a right to use. If it isn't, then shut down your computer, for your use is otherwise unlicensed.
The only reason the lawyer's answer is 'it depends' is because a lawyer is paid to take a side and 'maybe' it to death.. Then a judge decides which lawyer is closer to what side of the gray area.
You cannot imagine how mistaken this is. The lawyer answers the question posed to him, and very, very rarely is any interesting legal question clear. This derives from the very nature of law (and the limitations of language), and not from any commercial desire of the attorney.
----
I tell a joke, probably more humerous to lawyers who have lived it:
I went to law school, and being a quick study, discovered that our professors weren't at all concerned with the answers we derived -- they wanted our analysis (issue spotting). Accordingly, they didn't give a damn about the answers, it was the questions!!!
I clerked for a firm the summer after my second year, and being a quick study, discovered that clients didn't give a damn about the questions we raised, but merely wanted the answers.
And then, being a good clerk, I went to the library, only then to discover the great truth of the law: there are no answers.
-----
I stated that this question was gray not because of any passion for one result over another, and certainly not because anyone was paying me to "maybe it to death." Trust me, subject to my prior qualifications, this is a maybe.
Actually the 'common wisdom' seems to be correct here. You have to remember that GPL operates under *copyright* law. Thus if you are not copying... there is no restriction at all
That's the thing about common wisdom, it *ALWAYS* seems correct. It this case, however, it is not even a close question:
If you use computer software, you are copying. Three Circuit Courts cases have held unequivocally (MAI, Southeastern and Apple) that the loading of a computer program from any media into RAM, and the subsequent execution of that program from constitutes reproduction under 35 U.S.C. s. 106. There exists no cases holding to the contrary.
Until the Congress changes the law, or the Supreme Court opines otherwise, unlicensed use of software constitutes Copyright infringement.
Copyright has nothing to say about what you do with your copies
You can't imagine how badly mistaken is this view. Copyright law provides specific exclusive rights in Section 106. Unless you are granted consent, or can find an exception in sections 107 through 120, you are infringing. This is true even if you are the owner of a copy. Ownership of a copy (which is distinct from possession of a copy) does grant certain rights set forth in Section 109 and in the case of software section 117 of the Act. Neither provides a general right to reproduce, and hence, to use, the software.
The common wisdom, as you have stated it, is clearly in error. See a lawyer before you rely on it.
The GPL doesn't preclude your USE of software. I can use Sendmail without having to give source to anyone. But if I modify and plan to distribute that modification, then the GPL comes into play.
This is an oft-recited mantra, but it makes little sense. Either you have a license to load the program and use it or you don't. Under U.S. Copyright law, at least, unauthorized loading and execution of a computer program constitutes a "reproduction" under Section 106 of the Copyright Act.
So either we are all pirates, or there is at least an implied license to use. That license is found in the right to make copies in Section 1. (If it weren't there, you COULDN'T use the code.)
I understand that "common wisdom" is that the GPL does not "restrict" use. But mantras don't make law or legal relationships, licenses do. GPL either grants a right to use, or it does not. If it does not, its time to put away your copy of Linux until you get written permission to use it.
The truth is always far more interesting. At first, the question must be more carefully fleshed out. If put too broadly, such as, "if I distribute this patch without licensing it under GPL, could I lose a lawsuit," the answer could go either way, depending upon the particular facts, the particular patch, how it is distributed and what the end-users do with it?
At the end of the day, a mere patch to existing code is probably more likely than not going to constitute a derivative work, subject to a claim of copyright infringement for its creation or distribution unless authorized by the author. From where can that authority be found? Probably not in the GPL, which limits distribution of derivative works unless they are narrowly licensed. That frames some of the issues.
There are others. The end-user will put the entire package together in some way, thereby creating a new derivative work. Was this authorized, even if the former was not? Here, the argument is stronger for the prospective defendant, but still unclear. If it is unauthorized, then the distributor of the patch will likely be subject to a claim of contributory infringement, raising a plethora of new issues.
The long and the short of it is that the practice would be highly suspect, and subject to a host of claims, the analysis of which requires ALL the facts, ALL the code and ALL the circumstances of its distrubtion, even to begin to list the legal issues.
I don't see patches (as such) to be a loophole through which GPL can be avoided, and tend to agree with RMS on this point. (Mark this -- this is an unusual confluence). On the other hand, I could not begin to suggest that a bright line rule that "no patches are free of GPL's heredity rules" either.
My general concerns are that GPL's hereditary principles are "too much and not enough," embracing content that makes it very difficult to have open source communities built around some kinds of works (such as monolithic images, qua Smalltalk), but leaves hypertechnical tricks such as those suggested here in some cases in the gray.
But if you think more deeply about it, that's probably just fine. Those who dig around in the penumbra will never have a clear answer to their questions, and it is more often the problem of the derivative-work-maker than the original author that the DWM's rights to the derivative work are suspect. Someday it may be worth litigating, but this is not a problem in practice, at least not for the free software community at large.
So, I conclude that its in the gray, probably the dark gray, that its probably a losing argument depending on the facts.
I also conclude that the doubt created by these circumstances is adequate -- someone who wants to live on the interstices of the SPIRIT of the GPL should have at most marginal "hope" that their conduct is legal. In practice, their ability to do harm thereby is limited by risk-averse users and shunning by the community at large. Let them whine about how they are "technically" in compliance, knowing that they probably haven't a legal prayer, and let them wonder whether they are right or wrong when they have to shave themselves the following day.
Sorry, its the lawyer's answer, but it is at least the truth: it depends.
Slashdot Mirror
Requiring the labelling of goods is quite a different thing from requiring the labelling of speech. Cases addressing labelling laws make precisely this distinction.
Time will tell whether the Washington Bill or its sisters statutes will withstand constitutional scrutiny. At least a few entities (including EFF) think they step over the line. A full discussion of the First Amendment issues is well beyond the scope of this discussion.
Concerning the allegation of a blanket exception for commercial speech, I respond: the truth is rather more interesting.
The same hand that would permit such regulation, permits mandatory RSACi labelling of websites. Be very careful where you draw the lines between tolerating government regulation of the speech you don't like -- they'll most certainly be coming after you next.
The principal difficulty with most notions of regulatiing spam is that it impinges upon freedom of speech. The same pen that denies broadcasting of unsolicited advertisement also shuts down the Franklin-style pamphleteer. We must not, in my view, preclude people from exercising speech based upon the content of that speech, unless we are regulating a particular kind of constitutionally permissible speech (clear and present danger speech, constitutionally regulable obscenity, and other speech falling within exceptions to the first amendment, false statements). Free speech absolutists might not even want to go that far.
One line of thinking suggests requiring the marking of broadcast unsolicited speech, to facilitate filtering. The difficulty here is that this transforms the problem of unconstitutionally prohibited speech to one of unconstitutionally compelled speech. (Imagine that Congress could pass such a law -- what would preclude it from passing a law requiring the tagging of speech containing "indecent" content, and so forth?)
There is another way, one that does not have these constitutional infirmities: preclude FALSE tagging of the mode of distribution. In other words, make it unlawful to say that speech is NOT spam, when, in fact it is.
How would that help? Simple. We adopt by convention a tag indicating, essentially, that "this transmission, or other transmissions substantially similar, were not distributed to more than 100 persons within the past week without their prior consent." Virtually every non-spam mail (including list service transmissions) satisfies this request. All that needs to be done is to have mail clients routinely insert the tag:
X-DISTRIBUTION: 100, 7
This would, however, constitute a regulable false statement by spammers. Then, individuals can determine whether to opt-in or not. The approach does have its limits, but if the law gives meaningful teeth in its enforcement (statutory damages, award of attorney fees, class action provisions), it will help to keep, at least, the legitimate entities honest, and the illegitimate ones relatively small.
At the very least, it would impact upon the incentive to spam.
As both a former competitor and colleague of Richard's, I am sad to see him leaving the fold. His work with Ultima series will always be well-regarded and honored by those of us, presently and formerly, in the craft. He was one of the first, and most certainly one of the best.
I remember fondly one DragonCon in Atlanta where Richard, playing British, and I, playing Werdna, led an audience of real-time, real-space live role-players in a "battle of epic proportion between good and evil." I still get e-mails from those who were there reminiscing about it.
To my old friend, I say, farewell and G-dspeed! You did us great honor by your works, and gave us all many hours of pleasure in the process.
So saith the Supreme Court. That is the message of this case.
I don't see how this decision could be used to thwart Apple's attempts to protect the iMac design and "look" by design patent.
It limits the scope of their protection to the scope of the design patent.
Correct me if I'm wrong, but when the iMac was first released, it was truly an original and unique design -- older "designer" computers (such as the Acer Aspire series) notwithstanding. When you saw translucent white-and-fruity-colored-plastic, you thought "iMac".
Agreed it is a unique design. It probably is entitled to design patent protection. But that does not give rise to trade dress protection unless and until someone sees an e-Machines machine and says, "gee, that must have come from Apple."
When the first peripherals started coming out that mimicked the iMac design, they were immediately recognizeable as having done so.
But did anyone think they were MADE by Apple? That is what is meant by distinctive for these purposes.
In fact, many (most?) of them were aggressively marketed as "for the iMac", in a blatant attempt to capitalize on the iMac's runaway success. I don't suppose Apple had any problems with these peripherals, since they indirectly promoted the iMac and its original design.
Clearly. But does that mean the design was a designation of SOURCE? That is the factual question that is now raised. It is no longer a question of inherent distinctiveness, but rather than acquired distinctiveness.
Therefore, I believe that in light of this ruling, Apple should in fairness be allowed to obtain patent protection for its design.
They either have them or they don't. Point is that the design patent for the computer probably doesn't stretch to other uses of a similarly designed, but differently shaped machine.
1. I do not necessarily agree that the ruling is "right" and that Apple really should be allowed to obtain protection for its design.
The Supreme Court is not final because it is infallible. It is, however, infallible because it is final. Correct or not, that is the law of this land, unless and until the Congress changes its views.
This is entirely correct -- the case did not weaken or strengthen design patents at all. It is about product configuration and commercial design cases.
On the other hand, the standard for reviewing infringement of a design patent is far less "holistic" and fuzzy than that for an alleged product configuration case. To that end, the case likely had a major impact on Apple's claim.
You think that good games today are often linear because a linear storyline allows the author to control the temp of exposition?
I apologize for taking up so much bandwidth, but I want to make an important point. I do not think that linear games make great games because they tell a story better. Linear games make lousy games.
I think that a tree-based game has a similar problem, of course not as bad as a linear game, but much for the same reason -- the limitations of the potential scope of plot means that there are limitations on the liberties of the protagonist. Hence, the more structure on the story-telling, the better the story-telling, but its still just a hack. Further, the more structure on the story-telling, the worse the simulation (that is the less the interactivity).
This is what I meant by smoke and mirrors.
I am not saying that linear games are good games. I am saying that Poetics-based story telling makes for a good story, and that telling a story without Poetics makes for lousy fiction.
Making a more interactive game requires you to give the player more choices.
My point exactly. For the record, I'm not particularly impressed with a tree-based hierarchy of options any more than I am a linear game, so far as that goes. If you are going to write a simulation, a continuous simulation seems always the least hackneyed. When you can "feel" the discrete granularity of the game, the interaction inherently suffers.
And trust me, I have a detailed sense of how hard it is to build an interactive, non-linear story.
My point, however, is that adding options does not substitute well for story-telling. Either the story-teller is controlling the tempo, per Aristotle's Poetics, or she isn't. The more interaction, the less control is actually possible. (The trick is to make the actual control less perceptible.) And therefore, the less story-telling is actually done.
Almost as proof of my point, you conclude:
. The more you try to "cheat" by having less text, the lower quality the story feels. Writing an interactive, non-linear story is *hard* - the best examples of it are the Choose Your Own Adventure books, not video games, and that's kind of sad.
Sure, because the granularity is obvious, but the control of game tempo is already schemed out -- the story teller has already plotted the graph, and written the several stories based upon each divergence. Thus, the story-teller has more control over the tempo, and better story-telling results. On the other hand, the reason "that's kind of sad" is that Choose Your Own Adventure books (I'm partial to Steve Jackson's, BTW -- do you like any others?) aren't particularly interactive. They're just "drawn that way."
95% of most internet publications are crap. This is because 95% of everything is crap. So what? This doesn't mean that a great e-novel won't be worthy. Trust me, I for one will be a buyer.
Agreed that publishers haven't "gotten it right" yet. However, have you noticed the dismal failure of computer game and other "hot content" media to tell the story well? Sure, we can "show" a very pretty and impressive screenfull of highly interactive and responsive scenarios -- but can we tell a story?
I think not.
Storytelling over the eras has been an art. Since the Poetics, we have understood that timing, the subtle interplay between characters and scenes over delta t, is critical to the telling the story well.
A story must present characters, develop them, make them real, present their backgrounds, and through a series of episodes interact and have conflicts, ultimately reaching a climax and then, the gentle denoument to let us reflect on how they (and we) have changed.
The magic of doing that well requires that the author controls the tempo of the exposition. Too fast, too slow, and the story loses in the telling.
But granting interactivity permits the "reader" to control the tempo, thereby depriving the author of her key expositive tool: exposition itself.
Have you noticed that the best of simulation games are never telling stories well, and the best of text adventures, always seem too controlling and linear? This is because, I think, there is a distinct tradeoff between quality of the storytelling, and the free will permitted the "reader-as-protagonist."
Now, to be sure, the best of us have found tricks -- tricks to permit people to think they have free will when they don't, tricks to permit people to think exposition is being well-paced when it is isn't. This is the smoke and mirrors of the interactive story-telling industry, and we have gotten pretty good at it.
But this is done not through great story telling, or through great simulation writing. It is done through playing the tradeoffs well one against the other. And you can only do that once you recognize that there is a great conflict between exposition and simulation.
In short, don't write off the writer. I will be pleased to read paper and e-books forever. Publishers have much to offer me that my colleagues in the gaming industry can never give me, and vice-versa.
This isn't a medium issue at all, Jon. I don't want the GREAT story tellers bound by the feeling they need to let me interact -- I want them to tell me THEIR story. This isn't to say that our great game designers and simulationists don't do what they do well. I'm just saying that they do what they do differently. It isn't interactive fiction -- its something else.
There's room for it all. And so far as publishing goes, Jon, I think there's plenty of room for the well-delivered internet book.
After doing some more research I must reluctantly conclude that you are correct with regard to Section 117.
I actually wish it weren't so. It doesn't make much difference for the GPL (only in the way some people like to think about it, since GPL *DOES* grant a right to copy), but it makes a great deal of difference in most commercial software cases.
I seems that Section 117 has been vitiated by some rather questionable reasoning in the courts. It is quite remarkable that Congress has not corrected this rather drastic rewriting of the copyright law in the courts, but it has not.
Significantly, the Congress took up precisely this question along with the DMCA, and opted not to change "owner" to "owner or licensee," but instead limited the change to use of software in connection with the repair of computer hardware. Thus, the holding of MAI on its facts was reversed without changing the impact of MAI for the rest of us.
Thanks for your courtesies. Best, A
Feel free to continue believing this is the case. Call a lawyer before relying on it.
The issue fee for an individual is $605.00, but it is certainly an additional kicker.
I am not sure what you mean about a patent being "useless" if permitted to lapse for failure to pay maintenance fees. All that is lost is the right to exclude -- the document remains prior art, stays of record and continues to be used by searchers. In this same sense, of course, an SIR would be useless starting from the day it was prepared!
The perception that the office issues patents on "basically anything," while understandable, is greatly exaggerated.
It is certainly true that a decent lawyer can probably get something out of any disclosure, it remains to be seen if the claims allowed have any meaningful effect. In most art areas, a survey of USPTO records provides a fairly complete account of the state of the art. Unfortunately, this is not so in software arts and methods of doing business, owing largely to the history of decades of practice (centuries in the latter case) before patents were permitted.
There already exist "registries of neat ideas." They are called trade and academic journals. And they already constitute prior art.
I have a proposal which I think more effectively balances the relevant considerations more adequately than the status quo. You will also find there a brief discussion of the examination process, what it does and more importantly what it does not do. But I certainly would not do away with examination.
Trust me, its not as easy in practice as it may seem.
I am not lawyer, nor am I a rich man. But, if someone set up a charity drive/fund for open source SIR patents, I would gladly donate what I could spare.
You would be wasting, or at least inefficiently using, your money. SIRs are not cheap and they are not patents. For far less money than the minimum $920 per disclosure, we could establish a foundation to publish (and provide quality re-editing) an open source journal for these processes, which would have equally effective prior art effect.
It would be far cheaper, and far more helpful for the movement, if the same applications (to the extent patentable) were filed as applications, matured into patents, and pooled for use in cross-licensing against the real bears. This presumes, of course, that we are actually creating patentable inventions out here in the open source community.
It appears that this type of patent does exactly what Jeff Bezos wanted to do when he patented one click technology -- it establishes prior art and prevents someone else from coming along and patenting the same technology.
As to prior art preclusive effect, a SIR is no different from any published article. And the mere existence of prior art doesn't mean that a given application will have the SIR cited against it. (As noted, SIR's are more expensive in terms of filing fees than issued patents for most entities).
Provisional patents solve the smaller of the two giant problems out there. That is, they solve for the laziness of the patent office in doing research.
There is no such thing as a provisional patent. You can file a provisional application for a utility patent, which can be "re-upped" into a full-fledged application if you did it right. But nothing here would have the results you claim.
If you are referring to Statutory Information Registrations, referred to in the article incorrectly as "SIR Patents", they are a joke. See my earlier response on that subject.
If we find a counterexample, thereby proving the conjecture false, do we also collect the million?
Time to get a cluster searching, eh?
here's one great tidbit: there's a special kind of cheap patent that's perfect for open-source projects!"
Wrong on both counts. SIRs are not patents and they are not cheap. A "Statutory Information Registration" permits an applicant who has no chance of getting a patent issued, to have the USPTO print out a pretty certificate with his disclosure, complete with an issue date, a number and everything. One doesn't need to file an application, you can ask for a SIR from the get-go. (But there is no real reason to do so.)
It is not a patent, does not give you the right to place a patent number (or patent pending) on a product and grants no right to exclude. While the SIR is not examined against prior art, it is examined for compliance with all the formalities and disclosure requirements of Section 112 of the Patent Act, and thus should be reviewed by someone experienced in preparing patent applications.
Ultimately, it has no legal effect at all, except that it serves as prior art to the extent of its disclosure. On the other hand, so does every other publication, whether issued by the PTO or not. We would be far better off publishing a "Journal of Open Source Invention," to provide a source of prior art than relying upon SIRs.
And they are certainly not cheap. The patent office fee for an SIR is $920.00. (As compared to $620.00 for a full U.S. Utility application filed by an individual).
For the open source community, I see no upside for SIR applications.
If your position is correct (that is not clear without talking to someone qualified) then you could be right about trouble with GPL in the us. I sure hope the free world doesn't take it's lead from the collective incompetence that is IP law in the states....
Actually, I wasn't arguing that we are in trouble. The GPL expressly grants a right to make verbatim copies. No problem.
We'd only be in trouble to the extent that the ideological lockstep legal analysis proffered in the root remarks of this thread were correct. Since they are not, we are not in trouble.
Congress *did* change the law
Paraphrasing from "The Princess Bride," these words don't mean what you think they mean.
No, all these cases followed adoption of Section 117. Interesting enough, Section 117 was recently changed to change the result in MAI, but solely in the context of running an operating system for the purpose of repairing a machine. Having made the change in this limited context, Congress ultimately ratified the 9th Circuit's holdings outside that context.
EVERY ONE OF THE CASES CITED earlier distinguished Section 117(a), primarily on grounds of the definition of "essential step" and on grounds of the definition of "owner."
I'm pleased to engage anyone on this subject in detail offline if you like. But this is a well-settled area of law, and you need to know a lot more before you start quoting excerpts out of context. In these cases, the Courts concluded that possession of a copy does not, by itself, constitute ownership of that copy. Section 117 raises issues of course, but on balance, it doesn't change the analysis substantially.
The act of running the Program is not restricted
And therefore licensed.
you're confusing reproduction with distribution. The GPL only comes into power when you distribute.
And that's outside the organization, so RAM doesn't count.
Your confusing my remarks entirely. To summarize:
(i) use is reproduction (that's the legal word for copying) under the Act; (ii) if you aren't licensed to use it under GPL, then in the absence of some other license, the use is unconsented, and we are all pirates.
Thus, the authority to make copies and derivative works for ourselves under Section 1 is a right to use. If it isn't, then shut down your computer, for your use is otherwise unlicensed.
The only reason the lawyer's answer is 'it depends' is because a lawyer is paid to take a side and 'maybe' it to death.. Then a judge decides which lawyer is closer to what side of the gray area.
You cannot imagine how mistaken this is. The lawyer answers the question posed to him, and very, very rarely is any interesting legal question clear. This derives from the very nature of law (and the limitations of language), and not from any commercial desire of the attorney.
----
I tell a joke, probably more humerous to lawyers who have lived it:
I went to law school, and being a quick study, discovered that our professors weren't at all concerned with the answers we derived -- they wanted our analysis (issue spotting). Accordingly, they didn't give a damn about the answers, it was the questions!!!
I clerked for a firm the summer after my second year, and being a quick study, discovered that clients didn't give a damn about the questions we raised, but merely wanted the answers.
And then, being a good clerk, I went to the library, only then to discover the great truth of the law: there are no answers.
-----
I stated that this question was gray not because of any passion for one result over another, and certainly not because anyone was paying me to "maybe it to death." Trust me, subject to my prior qualifications, this is a maybe.
Actually the 'common wisdom' seems to be correct here. You have to remember that GPL operates under *copyright* law. Thus if you are not copying ... there is no restriction at all
That's the thing about common wisdom, it *ALWAYS* seems correct. It this case, however, it is not even a close question:
If you use computer software, you are copying. Three Circuit Courts cases have held unequivocally (MAI, Southeastern and Apple) that the loading of a computer program from any media into RAM, and the subsequent execution of that program from constitutes reproduction under 35 U.S.C. s. 106. There exists no cases holding to the contrary.
Until the Congress changes the law, or the Supreme Court opines otherwise, unlicensed use of software constitutes Copyright infringement.
Copyright has nothing to say about what you do with your copies
You can't imagine how badly mistaken is this view. Copyright law provides specific exclusive rights in Section 106. Unless you are granted consent, or can find an exception in sections 107 through 120, you are infringing. This is true even if you are the owner of a copy. Ownership of a copy (which is distinct from possession of a copy) does grant certain rights set forth in Section 109 and in the case of software section 117 of the Act. Neither provides a general right to reproduce, and hence, to use, the software.
The common wisdom, as you have stated it, is clearly in error. See a lawyer before you rely on it.
The GPL doesn't preclude your USE of software. I can use Sendmail without having to give source to anyone. But if I modify and plan to distribute that modification, then the GPL comes into play.
This is an oft-recited mantra, but it makes little sense. Either you have a license to load the program and use it or you don't. Under U.S. Copyright law, at least, unauthorized loading and execution of a computer program constitutes a "reproduction" under Section 106 of the Copyright Act.
So either we are all pirates, or there is at least an implied license to use. That license is found in the right to make copies in Section 1. (If it weren't there, you COULDN'T use the code.)
I understand that "common wisdom" is that the GPL does not "restrict" use. But mantras don't make law or legal relationships, licenses do. GPL either grants a right to use, or it does not. If it does not, its time to put away your copy of Linux until you get written permission to use it.
The truth is always far more interesting. At first, the question must be more carefully fleshed out. If put too broadly, such as, "if I distribute this patch without licensing it under GPL, could I lose a lawsuit," the answer could go either way, depending upon the particular facts, the particular patch, how it is distributed and what the end-users do with it?
At the end of the day, a mere patch to existing code is probably more likely than not going to constitute a derivative work, subject to a claim of copyright infringement for its creation or distribution unless authorized by the author. From where can that authority be found? Probably not in the GPL, which limits distribution of derivative works unless they are narrowly licensed. That frames some of the issues.
There are others. The end-user will put the entire package together in some way, thereby creating a new derivative work. Was this authorized, even if the former was not? Here, the argument is stronger for the prospective defendant, but still unclear. If it is unauthorized, then the distributor of the patch will likely be subject to a claim of contributory infringement, raising a plethora of new issues.
The long and the short of it is that the practice would be highly suspect, and subject to a host of claims, the analysis of which requires ALL the facts, ALL the code and ALL the circumstances of its distrubtion, even to begin to list the legal issues.
I don't see patches (as such) to be a loophole through which GPL can be avoided, and tend to agree with RMS on this point. (Mark this -- this is an unusual confluence). On the other hand, I could not begin to suggest that a bright line rule that "no patches are free of GPL's heredity rules" either.
My general concerns are that GPL's hereditary principles are "too much and not enough," embracing content that makes it very difficult to have open source communities built around some kinds of works (such as monolithic images, qua Smalltalk), but leaves hypertechnical tricks such as those suggested here in some cases in the gray.
But if you think more deeply about it, that's probably just fine. Those who dig around in the penumbra will never have a clear answer to their questions, and it is more often the problem of the derivative-work-maker than the original author that the DWM's rights to the derivative work are suspect. Someday it may be worth litigating, but this is not a problem in practice, at least not for the free software community at large.
So, I conclude that its in the gray, probably the dark gray, that its probably a losing argument depending on the facts.
I also conclude that the doubt created by these circumstances is adequate -- someone who wants to live on the interstices of the SPIRIT of the GPL should have at most marginal "hope" that their conduct is legal. In practice, their ability to do harm thereby is limited by risk-averse users and shunning by the community at large. Let them whine about how they are "technically" in compliance, knowing that they probably haven't a legal prayer, and let them wonder whether they are right or wrong when they have to shave themselves the following day.
Sorry, its the lawyer's answer, but it is at least the truth: it depends.