The fact is that : if you leave your front door open, and someone walks in, is that considered breaking and entering??
Depending where you live, yes. In many jurisdictions today, the "breaking" element is treated only to mean crossing the "close," or the invisible border that represents the protectible property interest of the title-holder. Other jurisdictions still require the "breaking" element to require the tearing away or removal of a lock, or the like.
But guess what? It doesn't much matter what the crime is called, entering without permission is still a crime. Merely entering or remaining without authority, license or express invitaiton, constitutes criminal trespass in many states. In Florida, entering or remaining in a dwelling with intent to commit an offense therein constitutes burglary, a first degree felony. If someone dies during the felony, that alone can be grounds for first degree murder!
Is there any serious question whether the state proved to a unanimous jury beyond a reasonable doubt all the elements of the crimes with which Mr. Mitnick was charged and convicted? If so, let's talk particulars, in view of the particular statutes, and stop this bullshit about whether any wrong has been done or whether a straw man charge can be laid at the feet of some hypothetical individual.
Many things you might not consider today constitute theft under state law. In particular, Kevin's own analogy, "joyriding" is, at least here in Florida, theft. Likewise the use of computers in various ways to manipulation of information legally constitutes theft. As does the use or disclosure of trade secrets of another.
Not for years has the legal definition of theft been limited to the "taking and asportation of personal property of another with the intent to deprive permanently." Modern statutes have liberalized or deleted virtually every element of the crime, largely because of hypertechnical arguments used by criminals to avoid justice.
Many words have both common and legal meanings, that may differ. Such differences, even if present, do not factor into whether the man is a criminal. By his own words, he was "like James Bond." Great, so instead of being a mere thief, he committed a capital crime!
So, this "argument" is really down to p.r. or sophistry. Sure, it may not be Kevin-Theft, or Slashdot-Theft, whatever those words might mean but if it is Legal-Theft (read the statutes) guess what? He goes to jail and deals with his probation.
For my part, this man's conduct was both wrongful and illegal, whatever it might have been called. He has not manifest great insight or technical skill in his admittedly routine cracking. He has offered nothing of value to the society which he has harmed. And so, he has done nothing to justify the martyrdom status bestowed upon him, and reflects poorly upon us all.
From the AP, I can't really see how in this day of internet connected everything, he cannot be around anything that will connect him. I'll bet his lawyers will win an appeal stating that with our technology rich society, not having access to the net is somehow perceived as cuel and unusual punishment.
Virtually nothing done by a modern state stands afoul of the Eighth Amendment. In view of judicial determinations that execution by an electric chair do not constitute cruel and unusual punishment, this argument doesn't pass the giggle test.
The plaintiffs in the New York and Connecticut cases are charged with violations of 17 USC 1201(b). There is no grace period for violations of this portion of the statute.
Karsten is quite correct on this point. (Nice catch, K!) Regrettably, 1201(b) was the basis for the NY court's granting of a preliminary injunction this afternoon. I understand the opinion is expected to issue shortly.
other interesting section though, 1201(c)(2): There is an(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
What does this mean?
Whatever the judges tell us, Kar; Whatever the judges tell us. Most likely, it means that the elements of a claim under section 1201 will not be used to suggest that the failure to be liable under 1201 means a failure of liability otherwise. (Sometimes, a lawyer will argue that two statutes must be read together --we say in pari materia--, and there was concern that this section might affect the independent causes of action for infringement.
The relevant DMCA provisions don't appear to be effective until sometime later this year. Consider the following excerpt, which Thomas reports as being enacted on or about October 28, 1998:
Sec. 1201. Circumvention of copyright protection systems
(a) Violations Regarding Circumvention of Technological Measures.--(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
Does anyone know how these prospective plaintiffs propose to get around this language?
However attractive it may seem, the notion that a marketplace of ideas stifled by loud obnoxious voices requires an antitrust law to keep things clean is dangerous. Civility is something to which we all should aspire, but it it not something to be enforced. Only self-regulation, and the tenor of a community, not moderators and censors, should dictate the tone of discourse.
I don't disagree that communications with confrontational tones seem more common on the net than elsewhere, but I will add that, IMHO, so too are the number of discussions of substance.
In meat-based fora, individuals tend to clump in groups who agree on basic principles, or whose disagreements are so minor in comparison that they only clash when forced to commit to policies or to resolve legal disputes. Individuals also do not tend to stay together when there are major differences, tending to clique up in communities of "common views."
The only counter-example I have experienced occurred while in graduate schools. There, the debate was often hot and heavy, in many cases downright fierce. Yet all the parties left smiling, even those who were decimated, because no person there ever won, or lost, the argument -- the goal was to seek the truth.
I suppose that what I am saying is that truth-seeking is kind of messy. The clash of genuine ideas, while it need not lead to incivility, will necessarily lead to the kind of conflict not ordinarily associated with "gentile" lives. Unfortunately, not all of us, and particularly the youngest of us, has sufficient experience to understand the difference, and this leads to the frequent ad hominem attacks with which we are too often familiar.
My view is that the clash is great, to be honored and beloved. It is a FEATURE of the net, and not a bug. More ideas get more deeply discussed, and I have learned more therefrom, than in any other medium or forum in which I participate.
The "bad acting" stuff needs to be regulated by pressing fairly hard on those who care about their netrep, or by simply ignoring the dweebs who can't tell the difference between a truly great and inspired debate and a backbar brawl.
Truth-seeking *IS* messy. Once you understand that, you learn to forgive and enjoy the ride. Its worth it. For those who don't engage, but merely shed more heat than light, they will eventually get bored and go away when the rest of us learn to ignore them.
The grave danger is that the attempts to regulate the fools and idiots simply permits the worst of us to wrap themselves in the flag, giving those who previously didn't have a decent idea a righteous cause.
There seems to be quite a bit of confusion as to the subject of this document. In the United States and other common law countries, a legal result depends, in part, upon certain findings of fact, and in part, upon the application of the law to those findings.
In some cases, the facts are determined by a jury, who returns a written verdict reporting their results, and in other cases, the facts will be decided by a judge. US v. MS is the latter type of case, and thus a so-called "bench trial," was held.
Here, the Court wears two hats, one as the finder of facts, and the other as the finder of law, who will issue judgment based upon those fact-findings. Since the Court is accountable to the appellate bench, these findings are typically memorialized in an Opinion, which separately states (sometimes in numbered paragraphs) findings of fact and findings of law.
The distinction between fact and legal findings is not always clear, and there are such creatures as "mixed questions of fact and law." For these purposes, however, this much of an introduction should suffice.
It will not surprise many readers that the Court frequently invites the parties to offer their respective views on how the trial went, by submitting proposed "Findings of Law and Fact." Since neither party reasonably expects their proposed findings to be adopted entirely, they are often written somewhat as advocacy pieces.
In this case, the Court split the fact-findings and law-findings in two, publishing the Court's fact-findings. The document referred to here is Microsoft's proposal for the findings of law with respect to those facts.
However egregious the conduct in the findings of fact, it is possible that as a matter of law, those facts do not satisfy the elements required to prove an actionable offense. That is what Microsoft is trying to argue here, with a sound, albeit highly technical, legal analysis, that the government, may have proved too much (that Microsoft is really nasty), but that they didn't prove enough (the specific elements and all relevant findings required for antitrust liability).
The document, accordingly, is a rebuttal, not to the findings of fact (which are necessarily and expressly assumed "arguendo" -- for the purpose of the argument), but to the proposed findings of law set forth earlier by the government.
In due course, the Court will complete its "opinion," dropping the other shoe with its findings of law. From this composite Opinion, the Court will then determine what Judgment shall issue, and will render that Judgment by filing it with the Clerk of the Court, triggering the time for Motions and appeals.
Expect there to be substantially more action between those events, however, as I am sure that the Court, if it finds liability, will invite the parties to suggest appropriate sanctions, and so on and so forth.
Hope this is of some help to those who may have been lost in the Findings.
And you think that the judge is going to decide that this simple trick on the part of the software vendors is going to overturn a previous decision that you're allowed to make normal archival copies, depending on how your backup system works?
I have high confidence that the judge would properly apply the applicable law to the facts, and come up with a result different from the one you suggest. Ownership clauses are enforceable as such, and that there is ample case law to support it. There is no right to make archival copies, except for software under Section 117, and that section applies only to the title OWNER of the copy.
You allude to a "previous decision" to the contrary, but in years of high-tech practice I have not seen such a case. On the other hand, I have seen cases holding quite to the contrary (e.g., Apple, MAI, Southeastern). Perhaps you can provide citations for the proposition you claim?
This is not to say that making archival copies for personal purposes wouldn't be fair use -- I think there is a strong argument that it is. I'm just saying that the proposition you cite, suggesting there is law clearly supporting your arguments, is inconsistent with my experience.
Fact: It is perfectly legal for a person in the US to make an archival copy of any digital media that they own as long as they don't distribute them and as long as they only make a _reasonable_ number of archival copies. Reasonable being whether or not the judge thinks you were trying to pirate the software!
Probably not true. 17 U.S.C. s. 117 does not apply to "any digital media," but is limited to computer programs. I suppose a tortured construction of hte definition of computer programs might be able to draw some digital content not routinely considered to be a program, but imagine the courts would re-read Contu and disagree.
Further, there is ample case law that states that only the OWNER of the copy has an archival right. Re-read your license to discover that you are merely the bailee of the vendor's copy, and you are SOL.
Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's.
I doubt it. Please cite the case. Even if that were true, the case would probably not survive the Digital Millenium Copyright Act anti-tech provisions.
Why do you think all the software vendors stopped copy protecting their software?
Because customers demanded it, and copy protection wasn't stopping much piracy. Trust me, I was there.
It would appear that Slashdot users strongly embrace the assertion of the Linux mark when used for noncompeting goods (or not used in commerce at all), presumably approving of the dilution-based or cyber-squatting theories asserted by counsel for Mr. Torvolds.
Forgive my cynicism at wondering whether this is a new manifestation of truly a principled view embracing strong IP trademark law by slashdot denizens, or whether they are simply rooting for those whom they perceive to be the "good guys."
Ironically, whileI ordinarily adopt a strong IP position in these forums on traditional Copyright, Trademark and Patent issues, I find the new cybersquatting laws and broad assertion of dilution theories to be very dangerous unbalancing of the fundamental policies of trademark law; and one that in the long run will hurt our community far more than it will help.
I believe that both were horrible mistakes and will never stop hoping that the Congress will someday come to its senses and repeal the ridiculous power-grabs by trademark powers that be.
Even when those laws operate to benefit those, like Linus, whom I also perceive to be the good guy.
Time will tell whether our community will likewise cheer the same conduct when asserted by perceived "bad guys" against perceived "good guys."
Re:Stallman's right IMHO. In this case that's good
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Hole in GNU GPL?
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· Score: 2
But the signing of an NDA creates an association between the parties, making the party of the second part an agent of the party of the first, no less than an employee would be. So giving him a copy is not "distributing to the public". Title remains with the secret's owner.
That would be bad lawyering! The mere creation of an "association" (if that term had any legal meaning in this context) betwen parties would not create an agency relationship, no matter how many "parts" and "parties" may be recited in an attempt to make that conclusory and unsupported assertion sound lawyerly.
Under Florida law, at least, agency is a very special legal relationship with very particular fidcuiary duties and obligations, typically granting the agent a right to make certain legal acts that are binding upon the principal as though the principal had herself taken those actions. For this reason and others, an NDA does not, by itself, create an agency. In other states, your mileage may vary on this point, but I doubt it.
Indeed, most well-drafted agreements, including most NDA agreements, expressly disclaim the creation of an agency, joint venture or partnership as a belt-and-suspenders measure. Though these agreements also create associations between the parties, they likewise do not create an agency.
So giving him a copy is not "distributing to the public". Title remains with the secret's owner.
Reread section 106 -- title need not pass to render an act one of distribution. Even if this were not the case, the argument is flawed on its face. By this analysis, a distributor of pirated records could avoid prosecution merely by having his customers sign an NDA as a condition of sale.
Nonsense.
The copy is a "derivative work" within the meaning of:(2) to prepare derivative works based upon the copyrighted work;
Of course, even if that were true, it would not change any of the preceding analysis. GPL expressly permits creation of a "work based on the program," a term which is defined to include derivative works, provided that the conditions set forth in Section 2 are met. Section 2 only meaningfully limits the licensure of copies made upon publication or distribution. Section 2 goes further, expressly stating that "the intent is to exercise the right to control the distribution of derivative or collective works based on the Program."
As an aside, it may be interesting to some to note that not all copies of a work are derivative works within the meaning of the Copyright Act. In particular, verbatim copying, mere "framing" of a work, or failing to add meaningful original text would not fall within the statutory definition in Section 101.
Re:Stallman's right IMHO. In this case that's good
on
Hole in GNU GPL?
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· Score: 4
Giving the code to people INSIDE the non-disclosure boundary is not "distribution" within the meaning of the GPL, so it does not confer on such people the right to disclose the modified code without the approval of the company's official decision-making process.
I think this may be too broad, legally speaking. Absent express definitions to the contrary, I believe a court would interpret "distribution" in the context in which it is used: a license to exercise exclusive rights to distriubute under the Copyright Act.
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
Accordingly, we should look for a transfer of title, rental, lease or lending. Accordingly, control or possession of a copy transferred among employees or agents of the corporation probably do not constitute a distribution. On the other hand, control or possession of a copy by a non-employee, non-agent, even if subject to nondisclosure would probably constitute, at least, a lending (bailment) of the copy.
There are cases, I recall, holding that infringement occurs when a consultant/third-party is given access to copyrighted works for the purpose of repairing software on behalf of the licensee. However, I seem to remember that these cases went off on copying, rather than distribution.
I'm just spitballing here, but it seems to me that a plaintiff asserting breach of GPL would probably do just fine in the case of a defendant who gave a customer/non-disclosee copies of a work.
It would be fun to research the judicial gloss on this statutory language to see how it informs the question of distribution within a corporation.
Nevertheless, for these reasons, I think "non-disclosure boundary" is probably too broad a range to permit non-distribution exchanges of copies. I imagine that the result would be probably much closer to an "in the family" (employees and actual agents) test.
p.s. It's interesting that my post got moderated down to "troll".:)
Not so interesting, I think. Had I been asked to meta-moderate this one, I probably would have called it "fair." By the author's own admission, bracketing his statements with the phrases "RANT ON" and "RANT OFF," the response was not substantive and was quite arguably a troll.
I would have preferred that the down grading be predicated on its being off-topic rather than controversial, because the request for "evidence" is always reasonable. However, as noted elsewhere, neither the article nor its source materials invited any linix or FreeBSD bashing -- it was the mere announcement of a code freeze.
Furthermore, I think a fair reading of the posted messages comprise reasonable, albeit anecdotal, evidence with specifics. Of course no posting made there comprised a refereeable study, but so what? This is not a court of law or a thesis committee review. Whatever criticisms that were posted in reply to the clearly off-topic, more arguably trolling, message, were simply ignored in the response. Moreover, whatever standard the author uses to determine whether "evidence" has been provided, he certainly has not applied those standards to himself, leaving us with only naked and unsupported allegations that straw man claims are unjustified.
I agree that a full and fair discussion of this issue would be interesting to me. But neither the posting nor the moderation complaint was calculated to provide the same. For that reason, the moderation probably was fair.
I do, however, encourage others to hit this issue hard in a truth-seeking and unabashed fashion. It would be nice to fathom this in a somewhat more informative and less cynical manner.
It is my firm belief that, in retail venues, Right to Use is concomitant with purchase. I think a software publisher would have an uphill battle arguing that a person who lawfully obtained a piece of software can't lawfully use it without an enforceable "agreement" in place.
Belief doesn't equate with truth. At least under the cases I have read, it seems fairly clear that these "licensed copy, not sold goods" provisions have the effect their plain meaning announces.
Absent the UCITA, either shrinkwraps or the GPL (or both) may be found to be non-binding. If so, then default conditions of law apply. If the GPL is found to be non-binding, then copyright law by default precludes you from making and distributing copies.
Leo's point is salient, but only so far as it goes. The recipient of GPL'd code who is not bound by GPL is entitled to do all sorts of things with it, so long as he or she doesn't infringe the copyright in the work. This can include using the code to write a detailed specification for building a knock-off, and in many cases using large snippets or ideas drawn from the code for proprietary projects, so long as it can be justified as fair use.
If GPL becomes binding under UCITA, things become far more interesting. The same hand that binds us under non-reverse-engineering provisions with proprietary code binds the OSS "thief" who would take open code proprietary.
It all depends whether you buy RMS' argument that the GPL handcuffs are necessary to keep the software free. If you do, then UCITA helps (ironically from the point of view of most UCITA advocates) to enforce those tenets. If you do not, then it doesn't matter.
(b) If a mass-market license or a copy of the license is not available in a manner permitting an opportunity to review by the licensee before the licensee becomes obligated to pay and the licensee does not agree, such as by manifesting assent, to the license after having an opportunity to review, the licensee is entitled to a return under Section 112 and, in addition, to:
(1) reimbursement of any reasonable expenses incurred in complying with the licensor's instructions for returning or destroying the computer information or, in the absence of instructions, expenses incurred for return postage or similar reasonable expense in returning the computer information; and
(2) compensation for any reasonable and foreseeable costs of restoring the licensee's information processing system to reverse changes in the system caused by the installation . . . .
UCITA handles these objections better than the status quo.
First, you are not able to see the license until you pay for the software.
True, UCITA does not require mass market licenses to be available, although it does require the existence of the mass market license to be disclosed. However,
Second, most retailers have a no-refund policy for opened software. Don't agree with the license, too bad. They already have your money so their is not incentive for them to speed the refund process.
UCITA fixes this. The contract isn't enforceable unless a return is permitted, together with reimbursement of reasonable expenses incurred and compensation for costs of getting back to the status quo. Under the status quo, there are no such guarantees. The critics don't focus too much on that kind of thing in their analysis, do they?
Cem's excellent, albeit one-sided critique raises serious points about industry practices. What he doesn't do, however, is to explain how UCITA is different from the present situation. Upon analysis, the answer is: "not much."
Present shrink-wrap and click-wrap agreements either are or are not binding. Anti-reverse engineering provisions, and the other provisions, either are or are not preempted by the Copyright Act. All of Cem's parade of horribles provisions can and often are already written into commercial shrink- or click-wrap agreements. UCITA, enacted as state law, might change some uncertainty (there isn't much left) as to the former, but certainly not the latter (its still either preempted or it isn't). The courts presently treat licenses that say so as licenses of software, not sales of a copy.
The creation of a contract through X-wrap agreements isn't completely settled, but the only Circuit Court case directly on point seems to have held them to be contracts, the only question remaining being whether particular provisions are enforceable under public policy, contract law and applicable federal law. UCITA would resolve any uncertainty left on this issue, but IMHO, UCITA is far better for OSS than the status quo in this regard.
At the center of most OSS projects is the license. Never signed on paper, rarely even clicked for, the GPL or other OSS license. The hereditary provisions of GPL would be reinforced, not weakened by UCITA. While never tested, the status of GPL's "include-file-wrap" agreement would be reinforced, and given meaningful teeth. This would be better, not worse, for the OSS community.
My suggestion is to read the UCITA carefully, and consider the arguments made on both sides. The software industry engages in a number of practices we all find questionable and wrong-headed, but a law that incidentally continues to permit enforceability of the same things presently permitted is not a bad thing for that reason.
If the marketplace truly despises a term or practice, the industry will adapt, or competitors will exploit this. At the end of the day, things will change. Copy-protection, code-wheels and the like went the way of the ak in package products long ago for precisely that reason. If these provisions matter to customers, things will change. If they don't, they won't. In the meanwhile, don't buy a product with a license you don't like -- that is YOUR choice. If you open the license and decide you don't like it, return it -- that is YOUR choice. Instead, use the OSS alternatives, and enjoy true freedom. If there isn't an OSS alternative, write it yourself.
On the other hand, consider the extent to which UCITA will strengthen the hand of those of us who are producing OSS software. While I am presently neither fan nor foe of UCITA (I also find it heavy handed in some ways), I think on balance it offers far more of use to the OSS community concerning enforceability of the interesting OSS license terms than it actually withholds from our use of non-OSS code. In practice, it doesn't really change much that the bad guys don't already do to us. On the other hand, it does give corporate lawyers further reason to counsel caution to their clients when asked how to sneak around, say, the GPL.
I don't see the point of complaining. A cavaliar [sic] attitude towards customers is an inherent feature of closed source software.
This is nonsense, of course. Any business that adopts a cavalier attitude towards its customers is dead, but doesn't know it. Unless a monopoly barrier to entry exists, the company will be devastated by its competition in due course.
The decision to focus limited resources in favor of an existing customer base over a potential new or expanded customer base is rational, and reflects due attention to, not neglect of, one's customers.
As Bork wrote, the truth is far more interesting. Market-based proprietary systems tend to be far more responsive to broad-based customer demands than does individual open-source work, precisely because there is no individual who is accountable to the marketplace. A company can justify expending significant resources because the spending of a dollar generates greater return.
For PRECISELY THIS REASON, however, open source can far more effectively serve minority, or orphaned market needs. Here, the minority customers do end up being unserved, because no one can justify building the larger infrastructure to build an entire application with the minority-needed feature, but the entity with the big shell is busy handling majority-market requirements. With open source, the infrastructure is there, and if it is effectively reusable, minority interests can be economically served if truly needed.
So, there is truth to both positions. However, to accuse Metrowerks of ignoring present non-customer and minority customer interests precisely when they are attending to majority customer interests with their limited resources is sophistry at best.
The earlier date is the one at issue. The effective filing date for the patent in the Xerox case is October 6, 1993. This means that prior art must either predate the October 6, 1992 or the date of invention, whichever is the later date.
The text of the patent specification expressly recites, "This is a continuation of application Ser. No. 08/132,401, filed Oct. 6, 1993 now abandoned."
Continuation applications get the benefit of the earlier filing date (the "effective filing date") under the patent act; provided that the continuation using the same disclosure is filed before the first application is patented or abandoned. 35 U.S.C. s. 120. A continuation is entitled to the benefit of the earlier filing date even if the earlier application is later abandoned.
[For those wondering what this continuation thing is all about, it has to do with having applicants of more complex (or poorly prosecuted) applictions bear the greater cost of examination on the Office. Patent fees are very low compared to the cost of examining a patent -- the PTO can budget only about 8 hours of examiner time soup to nuts per application.
As a defense mechanism, the PTO does not permit applicants to go around-and-around with an examiner for a single application fee. Basically, you file, he rejects all your claims, you write a letter saying why he was all wet and give up some scope of the claims. Now, if the examiner is satisfied, you get a patent on some or all of the claims, and a final rejection of those that were not allowed. In the six months you have to answer a second rejection, your choices are to appeal or to "try again" by filing a continuation application with your next arguments. You might let the earlier application issue with the claims that were allowed, or you might instead abandon it and go on with the continuation.
In short, the continuation process is primiarily a vehicle for taking more complicated applications and charging a second application fee to recognize the additional examiner time required for the application.
This is a substantial oversimplification of the process, but it gives a rough idea what was going on.
This is really very old news. H.R. 1907 and its Senate counterparts were adopted at the end of the last session, folded into the appropriations bill and passed by a substantial majority of both houses.
The only problems with the provisions are that they didn't go far enough. Patent "reform" is far closer to the position of most Slashdot readers than the strong-IP, "patentee must always win, and anything that weaken's a patentee's rights is bad for America" views espoused by the bill's critics.
The key provisions provided for early publication (which gives companies and programmers a timely heads up of claims for software patents when international patent protection is sought), limited prior user rights for programmers and their employers who had used programs written and in use prior to the issue date of a method of doing business or process patent and a number of administrative changes.
Most significantly, it started to provide greater access to third parties who bring prior art to the patent office to seek reexamination of an issued patent. Reexamination is substantially less expensive, and sometimes far less risky, than litigating the validity of the patent in court. I recently posted in Slashdot concerning the virtues of liberalized reexamination for software inventions.
The subject of this news story represents a faction of so-called "independent inventors" who take a radical, pro-patent stance, arguing that virtually anything that weakens a patent owner's rights compromises the rights of all citizens. I have found advocates from this camp to adopt a "take-all-prisoners" stance, relying on ad hominem attacks and jingoism in lieu of debates on the merits.
While it is true that much of the movement for patent reform is associated with "harmonization" of U.S. patent law with most foreign nations to simpify the process of filing world-wide applications, I will note that even that does not equate to ceding rights of American inventors to foreign entities. Moreover, I will observe that Slashdot critics of software patents have frequently cited to patent policy in Japan and the E.C. as more enlightened than that in the U.S.
. . . and all you have is the substitution of "your justice" for "our justice." That is, if the vigilantees share "your" notion of what is just.
Jury nullification is nothing less than the ultimate form of lawlessness: arguing that because a decision is unreviewable it is therefore right. Despite taking an oath to apply the law as instructed by the court, to find the facts as they lay before the jury, a nullificationist calls for the substitution of a judgement for a judgment.
Cochran argued jury nullification for more than twenty minutes before a jury trying O.J. Simpson, and the jury bought this view. Ask yourself if this was just.
To claim that instructing every panel of juries to ignore the law, ignore the facts and make their own call depite their oaths leads to justice is to defy reason: whatever you may think about the laws and the process, the substitution of anarchy (or worse) for laws derived under that process would undermine far more, and lead to far more injustice than the status quo.
The world has sufficient experience with the institutionalization of legal nullification -- indeed, it has even been parodied in Star Trek's "courts of fact." This is not justice.
Jury nullifciation is far more likely to lead to abuse and injustice than the controversy. From vast color-based captial convictions throughout the Jim Crow era to the OJ trial of modern times, nullification has been taken as an excuse to substitute bigotry, prejudice and personal disdain for unpopular individuals.
Nothing could more clearly assure injustice in American law than uniform adoption of the unprincipled application of "jury nullification" to the American Legal system.
Jurors, like high courts, are not final because they are infallible, they are infallible because they are final -- to claim justice derives from abandoning their oaths on the basis that they have the de-facto power to do so is to cede all "justice" to the hands of those with power.
Whatever might be said of the preceding posting, it has nothing whatsoever to do with justice.
In the real world, settlements are desirable things to reach. It is naive and foolish to believe that either side would completely capitulate unless and until they are clearly lost. Accordingly, in the real world, settlements don't happen unless both sides are holding their stomachs, hating the settlement; but hating the alternative even more.
Despite much I have seen written here on slashdot, it appears to me objectively, that there exists a litigable case, and that neither side has anything close to a slam-dunk. Talk about counterclaims based upon malicious prosecution or abuse of process on these facts is the kind of talk in which only people unfamiliar with these causes of actions would engage.
While I agree that the particular language described here is out of line, there are some obvious solutions that, in the real world, work to solve many close or too-expensive-to-litigate domain name cases:
Use a "selection page." Have the "home page" be essentially devoid of substantive content promoting either party, but serve solely as an index to guide browsers to the intended web sites. Each party is free to place anything they want on their respective web sites -- the only limitation is that the first page offer a plausible description (they would negotiate the nature of the page among themselves) of each site, and provide links thereto.
While this approach doesn't resolve all of the problems raised here on slashdot, it would be arrogant beyond belief for us to insist that etoy fight to the last inch at their own expense when other solutions might be available. Obviously, there are aesthetic issues and considerations at stake here, but IMHO, such a solution (or something like it) may be the only meaningful alternative to litigating to the bitter end. While I think we would all like to see closure and clear legal precedent regarding these issues, neither of the parties in interest really benefit from paying to test THEIR commitment to OUR principles.
In short, I agree that the EToys position is probably a show-stopper. But something like it is probably not. A case that can settle should settle, and we, particularly as spectators, should not treat meaningful efforts to find a middle ground with derision.
The answer to the first question depends substantially on the particulars of each circumstance. There are complex issues of conflicts of law, jurisdiction, applications of treaties and conventions and the like that cannot be summarized quickly or answered in the abstract.
In partial answer to your second question, WIPO's home page has a list of WIPO-administered treaties, including Paris and Berne, and seperately a very up-to-date list of ratification status of such treaties. Regrettably, these lists include just about every place where you might want to locate the beef.
It is possible you are correct in this view regarding DeCSS, and perhaps "anonymous posting" can be used to assure safety from liability, but that wasn't the point I addressed.
Nothing you wrote addresses my remarks that one cannot trivially avoid accountability merely by engaging in extraterritorial conduct.
Slashdot Mirror
The fact is that : if you leave your front door
open, and someone walks in, is that considered
breaking and entering??
Depending where you live, yes. In many jurisdictions today, the "breaking" element is treated only to mean crossing the "close," or the invisible border that represents the protectible property interest of the title-holder. Other jurisdictions still require the "breaking" element to require the tearing away or removal of a lock, or the like.
But guess what? It doesn't much matter what the crime is called, entering without permission is still a crime. Merely entering or remaining without authority, license or express invitaiton, constitutes criminal trespass in many states. In Florida, entering or remaining in a dwelling with intent to commit an offense therein constitutes burglary, a first degree felony. If someone dies during the felony, that alone can be grounds for first degree murder!
Is there any serious question whether the state proved to a unanimous jury beyond a reasonable doubt all the elements of the crimes with which Mr. Mitnick was charged and convicted? If so, let's talk particulars, in view of the particular statutes, and stop this bullshit about whether any wrong has been done or whether a straw man charge can be laid at the feet of some hypothetical individual.
Many things you might not consider today constitute theft under state law. In particular, Kevin's own analogy, "joyriding" is, at least here in Florida, theft. Likewise the use of computers in various ways to manipulation of information legally constitutes theft. As does the use or disclosure of trade secrets of another.
Not for years has the legal definition of theft been limited to the "taking and asportation of personal property of another with the intent to deprive permanently." Modern statutes have liberalized or deleted virtually every element of the crime, largely because of hypertechnical arguments used by criminals to avoid justice.
Many words have both common and legal meanings, that may differ. Such differences, even if present, do not factor into whether the man is a criminal. By his own words, he was "like James Bond." Great, so instead of being a mere thief, he committed a capital crime!
So, this "argument" is really down to p.r. or sophistry. Sure, it may not be Kevin-Theft, or Slashdot-Theft, whatever those words might mean but if it is Legal-Theft (read the statutes) guess what? He goes to jail and deals with his probation.
For my part, this man's conduct was both wrongful and illegal, whatever it might have been called. He has not manifest great insight or technical skill in his admittedly routine cracking. He has offered nothing of value to the society which he has harmed. And so, he has done nothing to justify the martyrdom status bestowed upon him, and reflects poorly upon us all.
From the AP, I can't really see how in this day of internet connected everything, he cannot be around anything that will connect him. I'll bet his lawyers will win an appeal stating that with our technology rich society, not having access to the net is somehow perceived as cuel and unusual punishment.
Virtually nothing done by a modern state stands afoul of the Eighth Amendment. In view of judicial determinations that execution by an electric chair do not constitute cruel and unusual punishment, this argument doesn't pass the giggle test.
The plaintiffs in the New York and Connecticut cases are charged with violations of 17 USC 1201(b). There is no grace period for violations of this portion of the statute.
Karsten is quite correct on this point. (Nice catch, K!) Regrettably, 1201(b) was the basis for the NY court's granting of a preliminary injunction this afternoon. I understand the opinion is expected to issue shortly.
other interesting section though, 1201(c)(2):
There is an(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
What does this mean?
Whatever the judges tell us, Kar; Whatever the judges tell us. Most likely, it means that the elements of a claim under section 1201 will not be used to suggest that the failure to be liable under 1201 means a failure of liability otherwise. (Sometimes, a lawyer will argue that two statutes must be read together --we say in pari materia--, and there was concern that this section might affect the independent causes of action for infringement.
Does anyone know how these prospective plaintiffs propose to get around this language?
However attractive it may seem, the notion that a marketplace of ideas stifled by loud obnoxious voices requires an antitrust law to keep things clean is dangerous. Civility is something to which we all should aspire, but it it not something to be enforced. Only self-regulation, and the tenor of a community, not moderators and censors, should dictate the tone of discourse.
I don't disagree that communications with confrontational tones seem more common on the net than elsewhere, but I will add that, IMHO, so too are the number of discussions of substance.
In meat-based fora, individuals tend to clump in groups who agree on basic principles, or whose disagreements are so minor in comparison that they only clash when forced to commit to policies or to resolve legal disputes. Individuals also do not tend to stay together when there are major differences, tending to clique up in communities of "common views."
The only counter-example I have experienced occurred while in graduate schools. There, the debate was often hot and heavy, in many cases downright fierce. Yet all the parties left smiling, even those who were decimated, because no person there ever won, or lost, the argument -- the goal was to seek the truth.
I suppose that what I am saying is that truth-seeking is kind of messy. The clash of genuine ideas, while it need not lead to incivility, will necessarily lead to the kind of conflict not ordinarily associated with "gentile" lives. Unfortunately, not all of us, and particularly the youngest of us, has sufficient experience to understand the difference, and this leads to the frequent ad hominem attacks with which we are too often familiar.
My view is that the clash is great, to be honored and beloved. It is a FEATURE of the net, and not a bug. More ideas get more deeply discussed, and I have learned more therefrom, than in any other medium or forum in which I participate.
The "bad acting" stuff needs to be regulated by pressing fairly hard on those who care about their netrep, or by simply ignoring the dweebs who can't tell the difference between a truly great and inspired debate and a backbar brawl.
Truth-seeking *IS* messy. Once you understand that, you learn to forgive and enjoy the ride. Its worth it. For those who don't engage, but merely shed more heat than light, they will eventually get bored and go away when the rest of us learn to ignore them.
The grave danger is that the attempts to regulate the fools and idiots simply permits the worst of us to wrap themselves in the flag, giving those who previously didn't have a decent idea a righteous cause.
There seems to be quite a bit of confusion as to the subject of this document. In the United States and other common law countries, a legal result depends, in part, upon certain findings of fact, and in part, upon the application of the law to those findings.
In some cases, the facts are determined by a jury, who returns a written verdict reporting their results, and in other cases, the facts will be decided by a judge. US v. MS is the latter type of case, and thus a so-called "bench trial," was held.
Here, the Court wears two hats, one as the finder of facts, and the other as the finder of law, who will issue judgment based upon those fact-findings. Since the Court is accountable to the appellate bench, these findings are typically memorialized in an Opinion, which separately states (sometimes in numbered paragraphs) findings of fact and findings of law.
The distinction between fact and legal findings is not always clear, and there are such creatures as "mixed questions of fact and law." For these purposes, however, this much of an introduction should suffice.
It will not surprise many readers that the Court frequently invites the parties to offer their respective views on how the trial went, by submitting proposed "Findings of Law and Fact." Since neither party reasonably expects their proposed findings to be adopted entirely, they are often written somewhat as advocacy pieces.
In this case, the Court split the fact-findings and law-findings in two, publishing the Court's fact-findings. The document referred to here is Microsoft's proposal for the findings of law with respect to those facts.
However egregious the conduct in the findings of fact, it is possible that as a matter of law, those facts do not satisfy the elements required to prove an actionable offense. That is what Microsoft is trying to argue here, with a sound, albeit highly technical, legal analysis, that the government, may have proved too much (that Microsoft is really nasty), but that they didn't prove enough (the specific elements and all relevant findings required for antitrust liability).
The document, accordingly, is a rebuttal, not to the findings of fact (which are necessarily and expressly assumed "arguendo" -- for the purpose of the argument), but to the proposed findings of law set forth earlier by the government.
In due course, the Court will complete its "opinion," dropping the other shoe with its findings of law. From this composite Opinion, the Court will then determine what Judgment shall issue, and will render that Judgment by filing it with the Clerk of the Court, triggering the time for Motions and appeals.
Expect there to be substantially more action between those events, however, as I am sure that the Court, if it finds liability, will invite the parties to suggest appropriate sanctions, and so on and so forth.
Hope this is of some help to those who may have been lost in the Findings.
And you think that the judge is going to decide that this simple trick on the part of the software vendors is going to overturn a previous decision that you're allowed to make normal archival copies, depending on how your backup system works?
I have high confidence that the judge would properly apply the applicable law to the facts, and come up with a result different from the one you suggest. Ownership clauses are enforceable as such, and that there is ample case law to support it. There is no right to make archival copies, except for software under Section 117, and that section applies only to the title OWNER of the copy.
You allude to a "previous decision" to the contrary, but in years of high-tech practice I have not seen such a case. On the other hand, I have seen cases holding quite to the contrary (e.g., Apple, MAI, Southeastern). Perhaps you can provide citations for the proposition you claim?
This is not to say that making archival copies for personal purposes wouldn't be fair use -- I think there is a strong argument that it is. I'm just saying that the proposition you cite, suggesting there is law clearly supporting your arguments, is inconsistent with my experience.
Fact: It is perfectly legal for a person in the US to make an archival copy of any digital media that they own as long as they don't distribute them and as long as they only make a _reasonable_ number of archival copies. Reasonable being whether or not the judge thinks you were trying to pirate the software!
Probably not true. 17 U.S.C. s. 117 does not apply to "any digital media," but is limited to computer programs. I suppose a tortured construction of hte definition of computer programs might be able to draw some digital content not routinely considered to be a program, but imagine the courts would re-read Contu and disagree.
Further, there is ample case law that states that only the OWNER of the copy has an archival right. Re-read your license to discover that you are merely the bailee of the vendor's copy, and you are SOL.
Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's.
I doubt it. Please cite the case. Even if that were true, the case would probably not survive the Digital Millenium Copyright Act anti-tech provisions.
Why do you think all the software vendors stopped copy protecting their software?
Because customers demanded it, and copy protection wasn't stopping much piracy. Trust me, I was there.
It would appear that Slashdot users strongly embrace the assertion of the Linux mark when used for noncompeting goods (or not used in commerce at all), presumably approving of the dilution-based or cyber-squatting theories asserted by counsel for Mr. Torvolds.
Forgive my cynicism at wondering whether this is a new manifestation of truly a principled view embracing strong IP trademark law by slashdot denizens, or whether they are simply rooting for those whom they perceive to be the "good guys."
Ironically, whileI ordinarily adopt a strong IP position in these forums on traditional Copyright, Trademark and Patent issues, I find the new cybersquatting laws and broad assertion of dilution theories to be very dangerous unbalancing of the fundamental policies of trademark law; and one that in the long run will hurt our community far more than it will help.
I believe that both were horrible mistakes and will never stop hoping that the Congress will someday come to its senses and repeal the ridiculous power-grabs by trademark powers that be.
Even when those laws operate to benefit those, like Linus, whom I also perceive to be the good guy.
Time will tell whether our community will likewise cheer the same conduct when asserted by perceived "bad guys" against perceived "good guys."
But the signing of an NDA creates an association between the parties, making the party of the second part an agent of the party of the first, no less than an employee would be. So giving him a copy is not "distributing to the public". Title remains with the secret's owner.
That would be bad lawyering! The mere creation of an "association" (if that term had any legal meaning in this context) betwen parties would not create an agency relationship, no matter how many "parts" and "parties" may be recited in an attempt to make that conclusory and unsupported assertion sound lawyerly.
Under Florida law, at least, agency is a very special legal relationship with very particular fidcuiary duties and obligations, typically granting the agent a right to make certain legal acts that are binding upon the principal as though the principal had herself taken those actions. For this reason and others, an NDA does not, by itself, create an agency. In other states, your mileage may vary on this point, but I doubt it.
Indeed, most well-drafted agreements, including most NDA agreements, expressly disclaim the creation of an agency, joint venture or partnership as a belt-and-suspenders measure. Though these agreements also create associations between the parties, they likewise do not create an agency.
So giving him a copy is not "distributing to the public". Title remains with the secret's owner.
Reread section 106 -- title need not pass to render an act one of distribution. Even if this were not the case, the argument is flawed on its face. By this analysis, a distributor of pirated records could avoid prosecution merely by having his customers sign an NDA as a condition of sale.
Nonsense.
The copy is a "derivative work" within the meaning of:(2) to prepare derivative works based upon the copyrighted work;
Of course, even if that were true, it would not change any of the preceding analysis. GPL expressly permits creation of a "work based on the program," a term which is defined to include derivative works, provided that the conditions set forth in Section 2 are met. Section 2 only meaningfully limits the licensure of copies made upon publication or distribution. Section 2 goes further, expressly stating that "the intent is to exercise the right to control the distribution of derivative or collective works based on the Program."
As an aside, it may be interesting to some to note that not all copies of a work are derivative works within the meaning of the Copyright Act. In particular, verbatim copying, mere "framing" of a work, or failing to add meaningful original text would not fall within the statutory definition in Section 101.
I think this may be too broad, legally speaking. Absent express definitions to the contrary, I believe a court would interpret "distribution" in the context in which it is used: a license to exercise exclusive rights to distriubute under the Copyright Act.
Accordingly, we should look for a transfer of title, rental, lease or lending. Accordingly, control or possession of a copy transferred among employees or agents of the corporation probably do not constitute a distribution. On the other hand, control or possession of a copy by a non-employee, non-agent, even if subject to nondisclosure would probably constitute, at least, a lending (bailment) of the copy.
There are cases, I recall, holding that infringement occurs when a consultant/third-party is given access to copyrighted works for the purpose of repairing software on behalf of the licensee. However, I seem to remember that these cases went off on copying, rather than distribution.
I'm just spitballing here, but it seems to me that a plaintiff asserting breach of GPL would probably do just fine in the case of a defendant who gave a customer/non-disclosee copies of a work.
It would be fun to research the judicial gloss on this statutory language to see how it informs the question of distribution within a corporation.
Nevertheless, for these reasons, I think "non-disclosure boundary" is probably too broad a range to permit non-distribution exchanges of copies. I imagine that the result would be probably much closer to an "in the family" (employees and actual agents) test.
p.s. It's interesting that my post got moderated down to "troll". :)
Not so interesting, I think. Had I been asked to meta-moderate this one, I probably would have called it "fair." By the author's own admission, bracketing his statements with the phrases "RANT ON" and "RANT OFF," the response was not substantive and was quite arguably a troll.
I would have preferred that the down grading be predicated on its being off-topic rather than controversial, because the request for "evidence" is always reasonable. However, as noted elsewhere, neither the article nor its source materials invited any linix or FreeBSD bashing -- it was the mere announcement of a code freeze.
Furthermore, I think a fair reading of the posted messages comprise reasonable, albeit anecdotal, evidence with specifics. Of course no posting made there comprised a refereeable study, but so what? This is not a court of law or a thesis committee review. Whatever criticisms that were posted in reply to the clearly off-topic, more arguably trolling, message, were simply ignored in the response. Moreover, whatever standard the author uses to determine whether "evidence" has been provided, he certainly has not applied those standards to himself, leaving us with only naked and unsupported allegations that straw man claims are unjustified.
I agree that a full and fair discussion of this issue would be interesting to me. But neither the posting nor the moderation complaint was calculated to provide the same. For that reason, the moderation probably was fair.
I do, however, encourage others to hit this issue hard in a truth-seeking and unabashed fashion. It would be nice to fathom this in a somewhat more informative and less cynical manner.
It is my firm belief that, in retail venues, Right to Use is concomitant with purchase. I think a software publisher would have an uphill battle arguing that a person who lawfully obtained a piece of software can't lawfully use it without an enforceable "agreement" in place.
Belief doesn't equate with truth. At least under the cases I have read, it seems fairly clear that these "licensed copy, not sold goods" provisions have the effect their plain meaning announces.
Hi right back at you Leo!
Absent the UCITA, either shrinkwraps or the GPL (or both) may be found to be non-binding. If so, then default conditions of law apply. If the GPL is found to be non-binding, then copyright law by default precludes you from making and distributing copies.
Leo's point is salient, but only so far as it goes. The recipient of GPL'd code who is not bound by GPL is entitled to do all sorts of things with it, so long as he or she doesn't infringe the copyright in the work. This can include using the code to write a detailed specification for building a knock-off, and in many cases using large snippets or ideas drawn from the code for proprietary projects, so long as it can be justified as fair use.
If GPL becomes binding under UCITA, things become far more interesting. The same hand that binds us under non-reverse-engineering provisions with proprietary code binds the OSS "thief" who would take open code proprietary.
It all depends whether you buy RMS' argument that the GPL handcuffs are necessary to keep the software free. If you do, then UCITA helps (ironically from the point of view of most UCITA advocates) to enforce those tenets. If you do not, then it doesn't matter.
UCITA handles these objections better than the status quo.
First, you are not able to see the license until you pay for the software.
True, UCITA does not require mass market licenses to be available, although it does require the existence of the mass market license to be disclosed. However,
Second, most retailers have a no-refund policy for opened software. Don't agree with the license, too bad. They already have your money so their is not incentive for them to speed the refund process.
UCITA fixes this. The contract isn't enforceable unless a return is permitted, together with reimbursement of reasonable expenses incurred and compensation for costs of getting back to the status quo. Under the status quo, there are no such guarantees. The critics don't focus too much on that kind of thing in their analysis, do they?
Cem's excellent, albeit one-sided critique raises serious points about industry practices. What he doesn't do, however, is to explain how UCITA is different from the present situation. Upon analysis, the answer is: "not much."
Present shrink-wrap and click-wrap agreements either are or are not binding. Anti-reverse engineering provisions, and the other provisions, either are or are not preempted by the Copyright Act. All of Cem's parade of horribles provisions can and often are already written into commercial shrink- or click-wrap agreements. UCITA, enacted as state law, might change some uncertainty (there isn't much left) as to the former, but certainly not the latter (its still either preempted or it isn't). The courts presently treat licenses that say so as licenses of software, not sales of a copy.
The creation of a contract through X-wrap agreements isn't completely settled, but the only Circuit Court case directly on point seems to have held them to be contracts, the only question remaining being whether particular provisions are enforceable under public policy, contract law and applicable federal law. UCITA would resolve any uncertainty left on this issue, but IMHO, UCITA is far better for OSS than the status quo in this regard.
At the center of most OSS projects is the license. Never signed on paper, rarely even clicked for, the GPL or other OSS license. The hereditary provisions of GPL would be reinforced, not weakened by UCITA. While never tested, the status of GPL's "include-file-wrap" agreement would be reinforced, and given meaningful teeth. This would be better, not worse, for the OSS community.
My suggestion is to read the UCITA carefully, and consider the arguments made on both sides. The software industry engages in a number of practices we all find questionable and wrong-headed, but a law that incidentally continues to permit enforceability of the same things presently permitted is not a bad thing for that reason.
If the marketplace truly despises a term or practice, the industry will adapt, or competitors will exploit this. At the end of the day, things will change. Copy-protection, code-wheels and the like went the way of the ak in package products long ago for precisely that reason. If these provisions matter to customers, things will change. If they don't, they won't. In the meanwhile, don't buy a product with a license you don't like -- that is YOUR choice. If you open the license and decide you don't like it, return it -- that is YOUR choice. Instead, use the OSS alternatives, and enjoy true freedom. If there isn't an OSS alternative, write it yourself.
On the other hand, consider the extent to which UCITA will strengthen the hand of those of us who are producing OSS software. While I am presently neither fan nor foe of UCITA (I also find it heavy handed in some ways), I think on balance it offers far more of use to the OSS community concerning enforceability of the interesting OSS license terms than it actually withholds from our use of non-OSS code. In practice, it doesn't really change much that the bad guys don't already do to us. On the other hand, it does give corporate lawyers further reason to counsel caution to their clients when asked how to sneak around, say, the GPL.
This is a good thing.
I don't see the point of complaining. A cavaliar [sic] attitude towards customers is an inherent feature of closed source software.
This is nonsense, of course. Any business that adopts a cavalier attitude towards its customers is dead, but doesn't know it. Unless a monopoly barrier to entry exists, the company will be devastated by its competition in due course.
The decision to focus limited resources in favor of an existing customer base over a potential new or expanded customer base is rational, and reflects due attention to, not neglect of, one's customers.
As Bork wrote, the truth is far more interesting. Market-based proprietary systems tend to be far more responsive to broad-based customer demands than does individual open-source work, precisely because there is no individual who is accountable to the marketplace. A company can justify expending significant resources because the spending of a dollar generates greater return.
For PRECISELY THIS REASON, however, open source can far more effectively serve minority, or orphaned market needs. Here, the minority customers do end up being unserved, because no one can justify building the larger infrastructure to build an entire application with the minority-needed feature, but the entity with the big shell is busy handling majority-market requirements. With open source, the infrastructure is there, and if it is effectively reusable, minority interests can be economically served if truly needed.
So, there is truth to both positions. However, to accuse Metrowerks of ignoring present non-customer and minority customer interests precisely when they are attending to majority customer interests with their limited resources is sophistry at best.
The earlier date is the one at issue. The effective filing date for the patent in the Xerox case is October 6, 1993. This means that prior art must either predate the October 6, 1992 or the date of invention, whichever is the later date.
The text of the patent specification expressly recites, "This is a continuation of application Ser. No. 08/132,401, filed Oct. 6, 1993 now abandoned."
Continuation applications get the benefit of the earlier filing date (the "effective filing date") under the patent act; provided that the continuation using the same disclosure is filed before the first application is patented or abandoned. 35 U.S.C. s. 120. A continuation is entitled to the benefit of the earlier filing date even if the earlier application is later abandoned.
[For those wondering what this continuation thing is all about, it has to do with having applicants of more complex (or poorly prosecuted) applictions bear the greater cost of examination on the Office. Patent fees are very low compared to the cost of examining a patent -- the PTO can budget only about 8 hours of examiner time soup to nuts per application.
As a defense mechanism, the PTO does not permit applicants to go around-and-around with an examiner for a single application fee. Basically, you file, he rejects all your claims, you write a letter saying why he was all wet and give up some scope of the claims. Now, if the examiner is satisfied, you get a patent on some or all of the claims, and a final rejection of those that were not allowed. In the six months you have to answer a second rejection, your choices are to appeal or to "try again" by filing a continuation application with your next arguments. You might let the earlier application issue with the claims that were allowed, or you might instead abandon it and go on with the continuation.
In short, the continuation process is primiarily a vehicle for taking more complicated applications and charging a second application fee to recognize the additional examiner time required for the application.
This is a substantial oversimplification of the process, but it gives a rough idea what was going on.
This is really very old news. H.R. 1907 and its Senate counterparts were adopted at the end of the last session, folded into the appropriations bill and passed by a substantial majority of both houses.
The only problems with the provisions are that they didn't go far enough. Patent "reform" is far closer to the position of most Slashdot readers than the strong-IP, "patentee must always win, and anything that weaken's a patentee's rights is bad for America" views espoused by the bill's critics.
The key provisions provided for early publication (which gives companies and programmers a timely heads up of claims for software patents when international patent protection is sought), limited prior user rights for programmers and their employers who had used programs written and in use prior to the issue date of a method of doing business or process patent and a number of administrative changes.
Most significantly, it started to provide greater access to third parties who bring prior art to the patent office to seek reexamination of an issued patent. Reexamination is substantially less expensive, and sometimes far less risky, than litigating the validity of the patent in court. I recently posted in Slashdot concerning the virtues of liberalized reexamination for software inventions.
The subject of this news story represents a faction of so-called "independent inventors" who take a radical, pro-patent stance, arguing that virtually anything that weakens a patent owner's rights compromises the rights of all citizens. I have found advocates from this camp to adopt a "take-all-prisoners" stance, relying on ad hominem attacks and jingoism in lieu of debates on the merits.
While it is true that much of the movement for patent reform is associated with "harmonization" of U.S. patent law with most foreign nations to simpify the process of filing world-wide applications, I will note that even that does not equate to ceding rights of American inventors to foreign entities. Moreover, I will observe that Slashdot critics of software patents have frequently cited to patent policy in Japan and the E.C. as more enlightened than that in the U.S.
. . . and all you have is the substitution of "your justice" for "our justice." That is, if the vigilantees share "your" notion of what is just.
Jury nullification is nothing less than the ultimate form of lawlessness: arguing that because a decision is unreviewable it is therefore right. Despite taking an oath to apply the law as instructed by the court, to find the facts as they lay before the jury, a nullificationist calls for the substitution of a judgement for a judgment.
Cochran argued jury nullification for more than twenty minutes before a jury trying O.J. Simpson, and the jury bought this view. Ask yourself if this was just.
To claim that instructing every panel of juries to ignore the law, ignore the facts and make their own call depite their oaths leads to justice is to defy reason: whatever you may think about the laws and the process, the substitution of anarchy (or worse) for laws derived under that process would undermine far more, and lead to far more injustice than the status quo.
The world has sufficient experience with the institutionalization of legal nullification -- indeed, it has even been parodied in Star Trek's "courts of fact." This is not justice.
Jury nullifciation is far more likely to lead to abuse and injustice than the controversy. From vast color-based captial convictions throughout the Jim Crow era to the OJ trial of modern times, nullification has been taken as an excuse to substitute bigotry, prejudice and personal disdain for unpopular individuals.
Nothing could more clearly assure injustice in American law than uniform adoption of the unprincipled application of "jury nullification" to the American Legal system.
Jurors, like high courts, are not final because they are infallible, they are infallible because they are final -- to claim justice derives from abandoning their oaths on the basis that they have the de-facto power to do so is to cede all "justice" to the hands of those with power.
Whatever might be said of the preceding posting, it has nothing whatsoever to do with justice.
In the real world, settlements are desirable things to reach. It is naive and foolish to believe that either side would completely capitulate unless and until they are clearly lost. Accordingly, in the real world, settlements don't happen unless both sides are holding their stomachs, hating the settlement; but hating the alternative even more.
Despite much I have seen written here on slashdot, it appears to me objectively, that there exists a litigable case, and that neither side has anything close to a slam-dunk. Talk about counterclaims based upon malicious prosecution or abuse of process on these facts is the kind of talk in which only people unfamiliar with these causes of actions would engage.
While I agree that the particular language described here is out of line, there are some obvious solutions that, in the real world, work to solve many close or too-expensive-to-litigate domain name cases:
Use a "selection page." Have the "home page" be essentially devoid of substantive content promoting either party, but serve solely as an index to guide browsers to the intended web sites. Each party is free to place anything they want on their respective web sites -- the only limitation is that the first page offer a plausible description (they would negotiate the nature of the page among themselves) of each site, and provide links thereto.
While this approach doesn't resolve all of the problems raised here on slashdot, it would be arrogant beyond belief for us to insist that etoy fight to the last inch at their own expense when other solutions might be available. Obviously, there are aesthetic issues and considerations at stake here, but IMHO, such a solution (or something like it) may be the only meaningful alternative to litigating to the bitter end. While I think we would all like to see closure and clear legal precedent regarding these issues, neither of the parties in interest really benefit from paying to test THEIR commitment to OUR principles.
In short, I agree that the EToys position is probably a show-stopper. But something like it is probably not. A case that can settle should settle, and we, particularly as spectators, should not treat meaningful efforts to find a middle ground with derision.
The answer to the first question depends substantially on the particulars of each circumstance. There are complex issues of conflicts of law, jurisdiction, applications of treaties and conventions and the like that cannot be summarized quickly or answered in the abstract.
In partial answer to your second question, WIPO's home page has a list of WIPO-administered treaties, including Paris and Berne, and seperately a very up-to-date list of ratification status of such treaties. Regrettably, these lists include just about every place where you might want to locate the beef.
It is possible you are correct in this view regarding DeCSS, and perhaps "anonymous posting" can be used to assure safety from liability, but that wasn't the point I addressed.
Nothing you wrote addresses my remarks that one cannot trivially avoid accountability merely by engaging in extraterritorial conduct.