First, common law has recognized typewritten an telex signatures for years. (As well as shaven cows, for that matter).
Pen-and-ink signatures cannot be strongly authenticated, or strongly bind the signature to whatever is being transmitted (indeed, forging and lifting paper signatures is a trivial exercise).
While I cannot argue with the proposition that assymetrical encryption is clearly superior, done right, to pen-and-ink signatures, this does not render electronic documents not asymmetrically encrypted inferior TO PEN-AND-INK signatures (or X-marking, cow shaving, foot casting and other bizarre but legally valid signatures)
(1) unclear, it would depend upon state law and common law development for each excluded arena. Most state laws governing wills require them to be executed at a face-to-face ceremony, regardless how the document is executed, so most e-mail transactions would fail. Other laws require "writings" (as opposed to "signatures"), and local state law would determine whether an electronic instrument is a writing, even if it is "signed."
In short, a lawyer's answer: it depends.
(2) unlikely, and probably an unfair interpretation of the statute or its consequences.
(3) I am on the fence on these subtle religious points.
Clickwraps (as opposed to mere shrinkwraps) are fairly well-established as binding, but I doubt that a click would be a signature. On the other hand, type "OK" WOULD constitute a signature.
This is also the law in almost every jurisdiction today anyway. Further, no writing would be required for many license provisions in any case -- the statute of frauds may not apply, particularly if the package price is less than $500.00.
I believe this is correct. A decision the year before last (in a case called Norton, or the like), held that a facsimile transmission was not a "writing." This largely provoked the adoption of the new bill.
I agree that a statute providing that any electronic signature constitutes notice to a would-be recipient would be unconcionable, inviting all sorts of foul conduct. I saw little in this bill to do that -- to the contrary, all it provides is that the electronic writing wouldn't FAIL TO BE NOTICE, just because it was electronic.
I actually think the solution is to state that notice must be accomplished in such manner as to ACTUALLY OR REASONABLY BE CALCULATED TO GIVE NOTICE, rather than quibble about the technoloy used to do so -- which will change over time. If an obscure means is treated as a notice, whether paper or otherwise (for example, as fine print hidden in a document purporting to be junk mail selling magazines), it is not treated as notice, notwithstanding the fact that it is most assuredly a writing.
Why should electronic instruments be any different? If a reasonable person in the place of the consumer (or if its consumer protection legislation, like insurance), then a reasonable idiot in the place of the consumer would consider they had notice, why does it matter if it arrived by e-mail? Likewise, if the manner used was sneaky, regardless how it was given, why does it matter whether it was in writing?
If a person uses e-mail for every interaction in his or her life, and receives an e-mail, reads it and actually got notice, why should she be able to rely upon a technical defense of the "non-writingness" of the e-mail? Why should it matter for these purposes whether the notice used digisigs?
Electronic signatures are almost certainly "valid" (that is, legally enforceable as signatures) under the common law of every state (except perhaps, Georgia, which has some renegade case law regarding facsimile transmissions), just as signatures using other non-pen-to-paper technologies have been for centuries. The Statute of Frauds has not, for example, excluded, typewritten or telex printing of names, shaved initials on the hide of a cow, impressions of a footprint cast in sand, and so forth. This legislation is not necessary, but it is helpful for a conservative lawyer to be able to rely on statutory law rather than inviting their client to be the first one to litigate these new fact patterns.
In short, the law does not require more than a physical fixation of an intent to authenticate -- a ceremony if you will. A signature does not need to be non-repudiable to be valid -- I could mark "Micky Mouse" or "X" at the end of a document and be bound, if it can be shown that I intended to authenticate the document when I made the markings.
On the other, hand, good commercial sense ordinarily precludes the use of or the accepting of such "alternative" signatures, even if they are legal, for the simple reasons that they create tremendous difficulties in proving authentication when push comes to shove.
The decision to accept an "X" from a literate contractor when closing a deal involving zillions of dollars would be foolish, and we would ordinarily ask them, politely, to sign the document by writing their name. When a shaved cow is offered, in anticipation of the difficulties of getting the critter into the courthouse -- we smile, thank them, and offer them our pen instead.
Its all about choice. The question is, who shall make the choice whether we use ink, pen-on-paper, crypto or typewritters: the individuals using the signatures, or the government?
Two distinct views are prevalent in state electronic signature legislation: a minimalist statute that simply says that electronic writings are writings and manifestations of authentication of the writings are signed writings, leaving it to the market to decide (such as Florida's Electronic Signature Act); and more protective bills, which only validate signatures using certain technologies, such as assymetric encryption (Utah).
The bill passed by Congress is a minimalist bill, like Florida's (apparently patterned after the present draft of the Uniform Electronic Transactions Act). It is neither good nor evil, IMHO, but can be very helfpul for encouraging certain types of transactions.
TRUE, it makes an e-mail of the form:
Bob, I agree to buy 100 widgets at $500/widget, FOB TAMPA -- ship immediately./S/ Alice
a valid memorandum for statute of frauds purposes (the statute of frauds requires signed writings memorializing certain kinds of contracts as a precondition to their enforceability). But so what? That is almost certainly already the law anyway!
Whether Bob or Alice would agree to do business in that manner should be up to Bob and Alice. Of course Bob should be concerned that Alice might later repudiate the transmission, and must be concerned about how he can "prove up" (should it be necessary) the signature in court. On the other hand, who should make the choice as to what technology, if any, Bob should accept, Bob or the government?
I appreciate the remarks of those who have commented, and I feel that they do respond and advance the debate. But they also prove too much, indeed, making my point for me. Consider these objections:
You are talking about a different freedom than RMS. RMS is talking about the freedom of users, whereas you are talking about the freedom of developers. The GPL maximises the freedom of users.
and
The idea of copyleft is to use software copyrights, which RMS believes should no exist, both as a defensive measure against the efforts of free sowftare authors being exploited by non-cooperators, and to build a collaboratory community of people who create free software.
While it is true that copyleft is a form of copyright, and thus an use of power, this power is used as a means to abolish itself; it is a self-subverting use of power.
and
That depends entirely on which individual you are. You can either mandate that licensees A, B, and C shall have the same rights, or give A more rights, including the power to withhold those rights from B and C. In my view, the GPL is a small limit that forbids nothing except bigger limits, and thus offers more freedom on the whole.
and
One problem is that you seem to be confusing an individuals freedom with societies freedom.
Each of these comments from our colleagues make a similar point: I'll call it the Spock princple. The good of the many is more important than the good of the few, or the one. Perhaps this is a viable and important social principle. However, this view is antithetical to the notion of freedom, at least in the sense of libre liberty.
The Spock principle, as enforced by another, is not consistent with liberty, at least not in the Enlightenment or Jeffersonian sense that the term "liberty" is understood. Our United States Bill of Rights focuses PRECISELY on protecting the rights of the individual AGAINST a claim of the greater good by a majority (or an individual). This is because, at least here in the USA, we address freedom of an individual. The good of the many cannot ordinarily subvert the good of the few, or the one.
I do not suggest that a communitarian evaluation of social policy is wrong-headed, or that legislating constraints on some freedoms is contrary to the American Way. The Bill of Rights if focused on only a few of the most important individual liberties, leaving society a broad range to limit individuals for the benefit of the Spock principle.
But to abandon that status of liberty on the Spock principle is to abandon the status of Freedom. Stallmans is a "balancing" of freedoms, not a true claim to liberty in itself. This is a different principle. The fact that words such as "pragmatism" or "Machiavellianism" have neutral or negative connotations among we tech-heads, as opposed to "freedom and liberty," is not a reason to refrain from calling a spade a spade. To say that Mr. Stallman's principles described in his response to Stig are focused on an absolute sense of freedom is to apply a logic that defies gravity.
What I am saying is that it is pabulum to speak in freedom language ("that is a Yang word!") by stating that it is OK to constrain liberties of some person for the benefit of another. To use GPL is to concede that Copyright is not an absolute evil, and further that imposing limitations on the freedoms of one group in favor of broadening the privileges of another, for the reasons set forth in my original posting.
This is pragmatic, not libertarian, reasoning.
Stallman's use of Copyright in GPL is absolutely and undeniably (indeed, using his own definitions of power, freedom and GPL) an exercise of a power to limit the freedoms of another. Some suggest that he is a benevolent despot in so doing, and they may well be right.
I have fought a few first amendment battles in the courts and the legislature. I can assure you that EVERY censor makes almost precisely the same Spockian argument. "I am preserving freedoms for the greater good by making only minor impositions on the freedoms of a few." As recently as the Loudon County library censorship case, the library took the position that filtering software preserves the "freedoms" of individuals to use the library without having pornography surrounding them. This is a very, very slippery slope.
But to evade Stig's most reasonable arguments that the particular exercise of power of the fredom of another may not be striking the right balance by quibbling over which redefinition of the word "free" is the official redefinition, well that's just newspeak.
Having conceded that it is OK to "trample" the rights of "the few, or the one" for the benefit of "the many," we have abandoned an absolute sense of right and wrong for a more Machiavellian, totality of the circumstances balancing.
To that end, Stig has it exactly right as to which questions should be asked. As to who has it right as to what balance should be struck, well, that issue simply has yet to be joined.
And this is a shame. So long as the "true believers" insist on finessing the very question with mantras, we will never get to the truth.
The truth-seekers among us should grow impatient with the pabulum. It is time to answer Stig's points on the merits, and not with the raising of nice-sounding principle words, like "freedom," when we ourselves are willing to abandon freedom just as soon as we see a way to rationalize it using a Spock argument.
We do not support GPL on the principle of an absolute appreciation of freedom, but on the thesis that GPL limit of the freedoms of some provides a greater net balance of the greater good. While the mantra of "free software" sounds great and makes us feel good, it is philosphically unsupportable on libertarian grounds, depending more upon a Machiavellian attitude that the end justifies the means.
I stand by my thesis: Sophistry, even by RMS, is bad for the movement.
P.S.: A number of the respondants raised the very objections anticipated in my original reply. I will stand by the answers set forth there.
While comforting to the choir to hear our leaders challenge the heretics among us, we must take care before accepting pleasant-sounding words as truth. I respect that crap out of RMS, and support many (certainly not all) of the things for which he stands, but regrettably, this verse smacks more of marketing than truth-seeking.
Stig makes some powerful and interesting arguments, beginning with an undeniable truth: GPL is more limiting on individual choice as to what can be done with a work than, say, dedication of a work to the public domain.
While it is undoubtedly true that there may be good reasons for the GPL limitations (and there are), it is undeniable that there are limits, and in this sense, GPL software is less "free" than public domain or BSD licensing.
I think the issue has never been whether one form of licensure (or non-licensing dedication to the public domain) is more "free," but rather the very question posed by Stig:
does it strike the right balance
If we take freedom as an absolute good, and any infringement of freedom as a wrongful limitation, then we must turn away from all licensure, and simply dedicate our works to the public domain. To the extent we are redefining the meaning of these words to suit our case, we are engaging in tautology, marketing or sophistry.
I believe RMS has done so here. The gaffeometer pins immediately upon the occurence of phraseology such as "the official definition." Even worse, the suggestion that one should avoid legitimizing copyright by using the nominally salutory phrase "intellectual property," however legally accurate the phrase might be, proves too much, and suggests that RMS statements may have focused too much more on the form than substance.[1]
But moreover, look what happens when we start adopting the pabulum as truth. RMS' definition of freedom would surprise many of the nation's founders, notwithstanding the quotation of populist cliches:
I find the distinction between freedom and power useful . . . . Freedom is when you control activities that affect you most closely; to control activities that mainly affect other people is power . . . .
But just a few paragraphs later, we see the true nature of GPL:
If someone has used some of my GPL-covered code in a program, and releases the program, I cannot make that person release the program under the GPL. I can, however, deny permission to release my code on any other basis. that is what the GPL does.
In other words, at the end of the day, "what the GPL does" is to grant an author the right to "control activities that mainly affect other people." In other words, even accepting RMS statements on their face, what GPL does is about power, and not freedom.
Any exercise of a copyright pursuant to a license is the exercise of a power to exclude others from the exercise of certain enumerated rights, subject to the limitations of the Copyright Act.
Two anticipated objections to this analysis seem apparent:
the user doesn't have to license under GPL, he may choose not to release the code at all; and \
the use of my code by others affects me.
But to accept either of these responses is to abandon the strongest arguments against intellectual property generally, namely, that:
It is nonresponsive for another to tell me that I always have the option not to use their copyrighted (GPL'd) code, but that I can rewrite my code from scratch; the enforcement of these copyright rights to exclude is a restriction of my personal liberty; and
my making a copy of a program costs you nothing -- you are deprived of nothing, and the assertion of a taking is illusory. (In short, the "your freedom to swing your fist ends at the tip of my nose" cliche is inapplicable because copying does not damage the nose)
It is one thing to say that Copyleft is a necessary defense in a world of proprietary software. It is another thing to claim that the assertion of a copyleft is consistent with freedom while insisting that an assertion of a copyright is inconsistent with freedom. The very argument RMS makes in one case would defeat the argument advanced by him and others against IP rights in the first place.
In short, the truth of the matter lies somewhere between the stark "my way or no way" response of RMS and the straw man he imputed to Stig. The truth is rather more interesting. I don't know what the truth is, but I belive, at least, that Stig asked the right question:
Are the particular choices we are making "striking the right balance?"
The issue isn't freedom versus power. Neither absolute is contemplated in any of the strategies advocated here -- the question is whether we are making the right choices?
To pretend otherwise is sophistry. We should not permit ourselves, or each other, to engage in convenient redefinitions of common words to advance a cause. We begin to sound to the unconvinced like rambling, pabulum spouting, true believers. And they would be right to write us off for advancing such nonarguments.
Let us accept the weaknesses and inconsistencies of our assumptions, and argue why they are better in an imperfect world, or let us abandon the weaknesses entirely, notwithstanding such good derived therefrom.
Stig raised some very important questions. It would be a mistake to ignore them, simply because they challenge many of our core assumptions. I do not suggest by any of this that Stig is correct in his conclusions; I am inclined instead to listen and learn. There may be a great response to Stig's essay somewhere, but regrettably, that answer will not be found in RMS' statement.
[1] The suggestion that "intellectual property" (IP) is "too big a generalization" because it lumps together disparate bodies of law such as copyright and trademark is logically indefensible. Certainly the phrase is broad (despite the fact that lawyers who practice it are deemed to practice a narrow specialty), encompassing far more disparate issues, such as right to publicity, moral rights and the right to be free from unfair competition.
But the law adequately characterizes a body of intengible personal property and related rights to exclude others from the freedom to perform certain acts unrelated to any particular object. Just as the phrase "programming language" reasonably distinguishes LOGO, C and Smalltalk from, say, a European Swallow, so can the phrase intellectual property distinguishes copyright and trademark from the both of those things.
With all due respect, the "my way or the highway" view that any phrase phrase with a salutory connotation for a thing one deems "bad" is incorrect, and any pejorative phrase for a thing one deems "good" is perfect tends to prove my point that Sophistry is in the air.
Let us not try to win the "newspeak" word wars, its well past 1984. Let us instead return to the real world, and fight the real fights. There is much to be done, and this pettiness just gets in the way and discredits us all.
In the public hearing it was stated that there is a law "so-called Rule 56, which requires that that material prior art, of which the applicant is aware, be disclosed to the Office." It was said that they understand that it may be hard to comply to this rule. I looked through the patent but I could not find any references to prior art.
It's on the front page of the patent, for gosh sake! Also, you will typically find a prosaic discussion of prior art in the beginning of the specification. I commend rereading the patent, which can be found on-line in fulltext and.tiff format Significantly, the author of the patent affirmatively discusses and discloses two IBM written proposals, including a more general windowing approach.
So it seems even if there is prior art that this does not stop it from being patented if it is "sufficiently different" (see below). So exactly what role does prior art play in the patent process then?
The prior art determines whether or not the patent is valid. Prior art not disclosed during examination can be a basis for later invalidation, either by a suit in federal court, or by a process called reexamination. The Congress recently tried to "pump up" the effectiveness of third party reexaminations, but independent inventors bitterly fought against this, and a fairly lukewarm substitute is now pending.
From the excellent document What can be patented it states that abstract ideas (read: windowing for the Y2K problem) are not patentable.
While abstract ideas are not patentable, a particular approach toward "windowing for the Y2K problem" is almost certainly a patentable "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result". The Federal Circuit's recent decision in AT&T v. Excel explains very well the state of the law on the "mathematical algorithm" and "method of doing business" subject matter issues.
From the same document referenced in the above paragraph it also states that "The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention."
Be very wary of paraphrases, and understand that unobviousness in patent law is not the same as the common use of the term. This was discussed at length in a recentl slashdot discussion on patents. No flash of genius is required for patentability, merely that it hadn't appeared or been suggested in the prior art, taking individually or in aggregate form.
Notice also that the [Amazon] patent states that "one skilled in the art" will appreciate that the patent also covers other ordering mechanisms such as email. This is incredulous... this means that the patent convers all automated email-based order processing systems!
The claims are the thing to determine what is and what is not covered. It describes what is, and what is not, within the scope of the patent monopoly.
On a side note, on the US Patent and Trademark Office's web site in the definition of a patent they state that "US patent grants are effective only within the US, US territories, and US possessions." How exactly can this relate to the internet?
Whenever the invention is made, used, sold, offered for sale or imported into the United States, the Patent Act is triggered. The examples suggested by the author would probably give rise to claims for patent infringement within the United States.
*shrug* Seems like a reactionary move that won't get anywhere. The effort wasted changing sites to a widely-incompatible format would be better spent writing to your congresspeople and getting these rediculous century-old patent laws changed.
Title 35 of the United States Code (the United States Patent Act) was passed in 1956, and has been amended repeatedly, as recently as this year and last year. Many things can be said about the Patent Act and U.S. Patent policy, but "century-old" is inaccurate. Indeed, if you want to talk about its heritage, the present Patent Act was inherited from the First Patent Act, passed during the First Congress, pursuant to Article I, Section 8 of the United States Constitution.
So please, either acknowledge that its a modern act, or respect its multi-century heritage.
The law in many jurisdictions (California, Florida and other states have statutes that make things different, and common law varies all over the place, so your mileage may vary) is simply this: A non-compete is protectable only to the extent that it is protecting a legitimate business interest and to the extent that the limitations are reasonable.
The meaning of those words varies widely, and the scope of what Courts may do varies as well, but too many judges fall back upon prior cases that have held 1 or two years to be "reasonable" per se -- this judge did exactly right, by looking at the totality of the circumstances, and making a determination. Whether the arguments there are applicable to any particular job remains to be seen, but the judge's legal analysis (and, intuitively, determination of the facts) appears right on: the question is where the balancing of the protectible interests versus the reasonableness of the constraints balances too much to the plaintiff.
Note that non-compete and non-disclosure are two radically different bodies of law. The mere fact you can work for a competitor under the policies of the Thirteenth Amendment and antitrust statutes is entirely different from the policies protecting real and legitimate trade secrets.
But don't try to do this at home, kids . . . every case is different, and every case can go 180 degrees the other way on the subtlest of factual differences.
The tests (from actually READING the article) will work on the well-established psychological principle of analysing known violent people's answers to a series of questions, discovering where they differ most from normal people's answers, and using those to distinguish between violent and non-violent people. You can use this technique for nearly any trait, and it works reasonably well.
This unsupported proposition is preposterous on its face. First of all, there is a long line of substantial evidence that psychiatry is incapable of effectively predicting dangerousness. See American Psychiatric Asssociation, Clinical Assesments of Violent IndividualsTask Force Report 8, 24 (1974).
Secondly, exactly how would you prove the aformentioned proposition doesn't trigger false positives? Diagnose a sample size, let them lose and count the carnage? There is no credible and ethical methodology that can measure the proposition whether a person adjudged for mass murder was properly diagnosed.
Accordingly, the assumption that the test works is bad enough, but the unsupported assumption that the test has been shown to work is, well, incredible.
It is certainly true that one can provide a test that will capture all dangerous humans. (Count the chromosomes, for example). The problem is that a test that minimizes false negatives will pick up way to many false positives, resulting in substantial loss of civil liberty and social standing. This is unjust and, IMHO, evil.
It's also naive. Computer dating doesn't work so well. Are we truly to believe we can match students with traits of dangerousness?
Monty Python had it right: A far sounder methodology for determining if a student is a witch is to use scales to see if she weighs as much as a duck.
An admittedly old study demonstrated that psychiatrists have not reasonably demonstrated an ability to predict future violence, even when focusing on populations of those who have exhibited prior violent tendencies. American Psychiatric Association, Clinical Aspects of Violent Individual, Task Force Report 8, 28 (1974).
In short, the risk of false positives from such profiling programs seems large compared to the enormous social and civil liberties consequences for those students falsely targeted. The vast overreactions to routine adolescent experimentation with minor "antisocial" activity is an abomination for a free society, particularly when it is implemented as a de-facto social casting system.
The methodology of any such system appears highly suspect, absent enormous research and study, and modifications to short-term dangerousness models based on extraordinarily rare incidents such as the Colombine disaster makes a mockery of modern statistical methods.
In short, this is evil -- and it has consequences that are far-reaching: Imagine that a principal ignores the unreasonable results of such a program (or refuses to use it), and the rare explosion occurs. Is the principal or school system individually liable for negligence resulting from a failure to expel the child, or at least a failure to warn the entire student body? Think of the tradeoffs that must face a lawyer representing the school system -- how could she help but advise the system to "play it safe," by socially destroying the "marked" students?
No, unless and until this "program" is proved by serious, high-quality, methodologically sound studies showing an ability to predict dangerousness without substantial false positives (which to this day i have understood to be beyond the reach of modern Psychiatry), use of this sort of thing is simply a modern equivalent of divining witchhood with a duck.
It has been suggested that the world must end because software inventions (that is to say, a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result") may be patented. With the following, I do not propose to defend the patent system per se, but rather to describe what the system *is*, as an alternative to the straw man folks have been beaten down.
The subject matter requirement. Software is not invalid merely because it relates to an algorithm, any more than a design for a catapult is invalid because it relates to the law of gravity. If the invention imposes structure beyond the most abstract account of an algorithm, that is sufficient. Like it or not, that's the law. No critic should enter the debate unarmed on this point. So, load up your ammo and study the most recent and authoritative statement of the law on the subject matter requirement.
The Novelty Requirement.Certain kinds of prior publication and/or public disclosures of an invention (in jargon, "references") can invalidate a patent claim if, but only if, the claim reads on the reference. A claim reads on a reference if, but only if, each and every limitation set forth in the claim appears in the reference. As an example, if my reference frobozinates an array by (i) prefreezing it; and (ii) using a dual coloration method to frobozinate it, and the claim is directed to: (i) prefreezing; (ii) slighly defrosting; and (iii) using a single coloration method, the claim is deemed novel because it has an additional step not found in the reference. If the claim is directed to: (i) prefreezing; (ii) using a single coloration method with a miracle dip, the claim is deemed novel because it doesn't have the dual coloration limitation. Finally, if the claim is directed only to the use of general frobozinating with a prefreezing step, this claim is not novel, because the claim "reads on" the prior art. (even though the claim doesn't include ALL the steps disclosed in the art).
The Utility Reqirement. This is not likely to be an issue, unless the claims are directed to something criminal in nature (automated locksmithing or cracking technology, perhaps) or something generally considered impossible (halting problem, perpetual motion, etc.)
The Unobviousness Requirement. As you may have guessed by now, this doesn't mean what you think it means. Unobviousness is essentially a way to "loosen" up the rigid (and easily avoided) novelty standard by stating that even if a single reference doesn't have every element of a claim, the differences between the reference would have been obvious to a person of ordinary skill at the time of invention.
In practice, you can best understand this standard by imagining a programmer version of the film character Vern. Dim-witted and not terribly self-aware. But Vern has a unique, almost idiot savant talent, he knows everything. Every book ever published -- every program ever publicly used -- every thing that legally constitutes prior art with respect to the particular claim.
So, if a claim is directed to an A, B and C; and one reference understood only by a handful of high-level computer scientist philosopher-kings discloses A and B, and another reference in a Ph.D. Thesis from the late 1900's with only a single copy remaining, but publicly available in a disused lavoratory in Lucerne discloses B and C, Vern would know both references.
However, Vern would not think to combine them unless it would be "obvious" to do so. Under the patent law, this basically means that there is a specific teaching to combine the particular references in one or the other of them (or in another reference). It is not sufficient to certify after the fact, when all the references are gathered and the problem is placed before you in view of those references, that you would think it obvious to combine them. Vern generally isn't that bright, unless the differences between the claim and one reference are effectively trivial design decisions.
So, in short, some relatively small number of references must combine to identify EVERY feature claimed, and there must be some reason to combine the references.
Conclusion. It is for these reasons that noone will ever claim a well-known program idiom. A claim directed to the idiom alone would be invalidated by a single program exhibiting the idiom.
On the other hand, the obviousness or non-novelty of a particular idiom does not render a combination of elements invalid unless the prior art (or an "unobvious" combination of prior art) contains all of the elements of the combination.
Clearly, the preceding discussion is (intentionally) a super-simplified description of the issues of validity. My efforts in describing the foregoing is to help my colleagues to develop an intuition as to what the law *is*, so that they can better articulate their criticisms of the system or of particular patents with respect to the law, and not to a straw man.
As a patent attorney and regular slashdot contributor, I also commend the author for bringing home some of the essentials of patent practice. From the responses to date, it is apparent that he has hit a nerve.
I would like, however, to clarify a few points. The enforcement of a patent is something of a Poker game -- it costs a small fortune to defend, yes, but it costs an equally small fortune to assert it as well. Further, the Plaintiff will also risk the patent with each complaint he files -- for every time it is asserted, a judge or jury can hold it invalid, which holding unless reversed by the Federal Circuit or the Supreme Court has the effect of destroying the patent forever.
Thus, a Plaintiff with money suing a defendant without money puts a valuable asset at risk, probably without any chance of recovering a dime. One doesn't go typically go "all in" unless the pot is worthwhile. But to deter the plaintiff from going "all in," it is critical to know how to play the hand.
One vehicle, and an important one used by corporations, is the idea of a pool of patents to be used for cross-licensing purposes. When a non-critical patent is asserted, and the claim is adjudged to be non-trivial, the corporation can offer to cross-license as an alternative to raising counterclaims for infringement, and placing the plaintiff on the defensive. This is often an effective way to resolve most of the harm.
Accordingly, I disagree with those who think that it would be pointless to pursue patents for the open source community. To the contrary, having available a pool of patents, mutually enforceable against an OSS defendant, may deter many of the bullshit claims.
Yes, they require time and effort to obtain; and yes, they cost money. However, there is a raft of patent attorneys out there who sympathize with the open source movement, and who would be willing to facilitate under appropriate basis the filing and prosecution of such applications on a pro bono basis.
Part of the difficulty lies with the community, however. The aversion to the patent system has led to a sense that it would be "wrong" to apply for patents in self-defense. From what I have written here, I obviously disagree with this point of view. Folks like Karsten Self and others have been promoting patent pools for some time, and I encourage them and the community to proceed with building up the OSS Patent Pool.
I, for one, can be counted on to provide services to that end. I invite other patent professionals to do so as well.
I invite other patent attorneys and patent agents who feel similarly to contact me by e-mail or otherwise, so that we may begin to marshall our forces to that end.
The law in this area is complex and rather unsettled at the moment, though we are seeing more and more decisions on point every month.
You infringe a trademark when you use a mark in commerce in a manner that would create a likelihood of confusion or a likelihood of deception as to source, origin, affiliation, etc. These are all essential elements. However, the ownership of a trademark is not the same as ownership of a word: the word, generally speaking, remains available for denominative use. (That is, I can still be a playboy if my wife will let me, but I cannot sell Playboy-brand services that would give rise to a likelihood of confusion)
Confusing things further is that use of a competitor's trademark in a truthful and non-misleading comparative ad is (in the US, not everywhere) a blessed activity, protected by trademark policy as well as the first amendment. By its nature, such an ad does not create confusion, but to the contrary, makes stark contrast between the advertiser's goods and the trademark-owner's goods.
But it is odd that an ad on a website which slams to, but not over the brink, of honesty a product by name is blessed, while informing users via metatags or iNet portal keyword purchases that their interest in a competitor's product implies they should look at their different product. And thus, this may not be, and is probably not, the law.
But the devil is in the details -- cases swing 180 degrees depending upon subtle facts -- and the Courts are just now beginning to articulate how we distinguish between fair competition and unlawful infringement, between fair "hey, look at me when you look at them" competition, and "hey, buy my stuff because I'm them" free-riding on another's goodwill.
I wish I could report simple, bright-line rules to govern conduct in this arena today, but they don't exist as I write this. Just as in plain, published prose, some uses of a trademark of another in a metatag may be infringing, while other uses may not be. The particular facts of each case, including the particulars of the mark itself, will determine the result.
Even when there exist objective criteria defining what software is intended or supposed to accomplish, and even when there exist objective and consistent criteria concerning aesthetics of UI design, art and related subject matter, software is just plain hard to make.
Software is much tougher to make than soap.
Why? Because even a relatively trivial program involves express specification of changes to a massively large state space. In the analog world, an engineer infinitely narrows the scope of vastly larger state spaces to be considered by making assumptions that things behave continuously -- not so with code, which grows combinatorially and discontinuously complex with each additional variable, object or control statement.
Nowhere does this become clearer than when one is asked to engage in true quality control: proving a program correct. Methodologies that work beautifully and elegantly in the small to demonstrate the accuracy of a code segment grow unmanageably out of control when facing a 100,000 to 1,000,000 line program. And in turn, we then have the bugginess of the proof --viz. was the spec specified adequately-- to consider as a new "quality control" issue).
Even the very process of quality assurance in code is harder than Q/A for soap. A scientist may often presume safely, and can often prove, that if the soap behaves properly at two ends of a temperature range, that the soap will behave properly between them. This is almost never the case with code, it being in the nature of digital things to exhibit discontinuous behavior.
The bottom line is that excellent code is enormously expensive -- requiring only the brightest, best and most sophisticated management, quality assurance, design engineers and technicians. Noone wants to pay for what they claim they are entitled to expect. However, this is like most things in life. You can get:
Good. Fast. Cheap.
but you only get to pick two.
Regrettably, management is evaluated more closely for fast and cheap, so noone really worries about good, just so long as its "passable" (and its often easier to pass blame to the coders for "good" than it is to blame them for "fast" or "cheap").
Even if Microsoft does lose handily at the District Court level, don't underestimate the significance of the prior Circuit Court reversal of earlier pro-government findings against Microsoft. The appeal will be to the same Circuit Court, perhaps to some of the panelists, but which panelists will be bound by the precedents set forth earlier.
The bottom line is that the fact findings not only have to be anti-Microsoft for Microsoft to lose, but specifically geared to distinguish the prior case.
At the end of the day, this could all be mere window dressing if the District Court's opinion is reversed. And then, of course, there is always the Supreme Court, who are not particularly friendly to anti-trust claims these days.
In other words, while the battle has been joined, and Boies made mincemeat out of Microsoft's legal giants at trial, victory is not certain. But even if the DOJ does prevail, this result will merely be the result of one battle of a larger campaign.
So watch out for the legal analysis of the fact-findings -- it's not only whether these findings go well for the government, but do they distinguish the prior Circuit court case.
The liability question, at least as put above, is naive. There are some things you can do, notwithstanding even express contractual disclaimers in negotiated and executed agreements, that under certain circumstances cannot be disclaimed -- and conduct leading to personal injury can lead to such liability.
(Think about it -- if liability for medical malpractice could be disclaimed, would there be a doctor or hospital in the world who wouldn't make you sign away your rights as a condition of treatment?)
Accordingly, publishing OSS medical software probably is a risk -- although most publishers (in their individual capacity are likely to be relatively judgment proof compared to the size of most such claims.
But the interesting observation here is the suggestion that open software must be orphaned from regulatory approval for failure of a company to pay for such approval. In my view, that objection is highly overstated and takes perhaps a naive view of the economics of the situation.
Indeed, the company never really pays for the software's approval -- at least at the end of the day. Nor do they pay for the outrageous liability insurance. Customers do. Proprietary medical software that is highly regulated or requires elaborate insurance is expensive, in part, because of these expenses.
If truly good OSS medical stuff were out there, approval might arise in time by the marketplace that intends to use it, either through grants, communal conduct by the marketplace, or "new economy" ideas such as websites soliciting voluntary contributions to support worthy quasi-commercial work.
Those notions should work, that is, unless you believe the "free rider" problem precludes such benefits to society, in which case the arguments for strong IP were right after all. . .
Re:How can this hold up in court?
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In most cases? Hardly. Indeed, most of the cases addressing EULAs focused on the question of the enforceability of particular clauses, and not on the question whether there was an enforceable agreement.
The only Circuit Court opinion squarely confronting the issue of contract formation, the ProCD v. Zeidenberg case, expressly held that there was a contract.
The better view is probably that the particular circumstances of the transaction dictate the enforceability of the EULA. In particular, if you clicked something prior to buying acknowledging that there would be an agreement, or if the package says something about an agreement inside, its probably enforceable.
Just so you are clear on the theory of these cases, it goes like this. To have a contract formed, you need an offer, acceptance and consideration. The offeror may establish the terms of acceptance in the offer, and hence may say something like: "Here's the deal. I offer to sell. If you want to accept my offer, pay me first, take it home and read the EULA. If you don't like it, return the dough and no deal. If you use it, you bought it." Under this theory, the fundamental tenets of contract law are satisfied, a contract is formed, and the only question is whether public policy is violated by enforcement of the provisions (this almost never happens).
Re:The Difficulty of Overstating the Case
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Fair enough, but I haven't the time or the inclination to do that again. I deconstructed many of these issues in the last UCITA announcement, and would be pleased to to so again when I do have time. The same complaint of nonspecificity, of course, can be stated about your reply.
Re:The Difficulty of Overstating the Case
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The truth is far more interesting. Its nice to be able to take such a view as that proposed, but only if you are a philosopher or a king. In a Democracy (or in discussions between sovereigns), a far more sophisticated view is required.
The purist view is, simply put, naive. Nothing good, and much bad can come of such absolutism.
Madison insisted until the bitter end that both houses of the legislature must be numbered, even as it seemed that the Constitutional Convention would be all for nought. Thank the lord Franklin and Washington prevailed upon him, so that eventually he agreed to compromise.
Northern states insisted that the Southern states accept abandonment of slavery in both the Constitutional Convention and the Continental Congress. And while the horror of that institution survived through and ultimately caused the great Civil War, it was important that they compromise, or else we might all still be British subjects today (No offense or sleight intended to our friends across the pond).
In short, even as we undertook the greatest feats of our time in making strides toward democracy and liberty, serious and egregious compromises were necessary to accomplish the result.
Particularly with the UCITA, we are presented with a mixed bag. There is much good (and some very bad) stuff in between the pages, and taking the view that the entire work is a travesty -- that none of it is commercially necessary -- or blaming UCITA for permitting the status quo to continue in other respects will simply cause you to lose credibility. Sure, you're philosophy will be pure -- and it will make fine reading in the textbooks.
At the end of the day, however, UCITA will become law, and it will be far worse than it had to be for all of us. It didn't have to be as bad as it presently is, and it doesn't have to be as awful as it probably will come to be.
As an aside, I disagree with the author's presupposition that this Act "causes a loss of freedom." It's a Contact Act, for goodness sake! If you don't want to be bound by the terms, don't contract for them. Indeed, by permitting parties to engage in contracts they would not otherwise have been able to enter, the Act is arguably pro-liberty, not anti.
For the record, I was a staunch supporter of UCC2B in the abstract, noting that it had some serious problems. I was the centrist trying to fight for reason, to mitigate the bad and to maintain so much good as could be kept. Unfortunately, the polar views taken by the two extreme sides made those efforts futile. Eventually, those with power gave up on compromise and began to take more. Ultimately, they drafted a harsher Act, abandoned ALI, and we now have what we have. Count me as someone who still sees UCITA as a mixed bag, and who is lamenting what it could have been had cooler minds prevailed.
The Difficulty of Overstating the Case
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**Opponents** of UCITA and its parents missed several opportunities to have a better bill. Now is a time for some introspection, rather than continued choir-preaching and whining. Did we do the best we could do to effect change?
UCITA is another demonstration of the inefficacy of the *flame on* mode of opposition when faced by a politically powerful opponent. By repeatedly overstating the case, opponents of UCC Article 2B ultimately lost any hope of compromise on substantive issues while TPTB simply moved away from ALI, passed the UCITA, and is likely to get the bill passed in a sufficient plurality of states to do harm.
Ultimately, the final bill is worse than intermediate drafts of UCC2B, and is that any surprise? Then was the time to compromise.
Now, encouraged by successes in Congress and state legislatures with assorted Y2K legislation and the DMCA, TPTB are coming to the view that it is easier to try to take all of what they want than to achieve consensus, and in so doing they have actually been aided by the self-marginalizing conduct of their opposition.
This is the difficulty of overstating the case against a powerful opponent.
Arguments made against UCITA and UCC2B overreached to the point that few legislators will take seriously an opposition that merely decries the entire bill. It is a mistake, a serious mistake to oppose UCITA wholesale from this point on, as it was a mistake not to compromise earlier to remove the more negotiable and far more onerous provisions. There is a difference between making a good argument and an effective argument, and on this count, the anti-UCITA critics failed to do anything but preach to the choir.
To be fair, very few Uniform Laws are actually uniformly passed -- not even brilliant successes such as the Uniform Trade Secrets Act. However, they have broadly influenced courts and legislatures in the years that followed, and much harm has already been done just by this vote.
The best chance of minimizing the impact of this Uniform Law as it comes before the several states is to try to neuter its most onerous provisions -- not to try to kill it or marginalize it.
And remember, this is Contract law -- if you don't like it, change it by voting with your pocketbook. Write competitive and/or free software substitutes. Don't whine -- do something meaningful to change things. Issues that truly impact the marketplace or threaten individuals who are not techies can be changed -- that is why we no longer have copy protection. If you can't change it, perhaps the market really doesn't care about the point, and it is *we* who are overreaching?
The real issue here seems to be that a consequence of modern Rules of Procedure is antithetical to general notions of privacy. Without passing on the merits of the lawsuits that are the subject of the article, consider the following hypothetical:
(1) Unfavorable (but clearly not defamatory) information about MEANCO is posted on a website served by ISPSERVICES by an anonymous person identifying herself as an employee of MEANCO.
(2) MEANCO files an absolutely ridiculous defamation action against a Jane Doe. (ISPSERVICES is NOT a defendant, hence no Cubby issues arise).
(3) Since Jane won't step up to the bat, nobody questions whether the lawsuit was valid, and nobody moves to dismiss.
(4) Now, discovery begins in earnest, the lawyer issues a subpoena through the Clerk of Court to ISPSERVICES, who complies therewith, the employee is identified, and the lawsuit is dropped without prejudice.
(5) MEANCO fires the employee.
On the merits, MEANCO never intended to prevail in its lawsuit, and nobody was ever in a position to challenge it. Yet Jane's true name is revealed without a whimper -- indeed, she isn't even in a position to safely intervene without giving up anonymity.
Without passing on the merits of the legal system (discovery is, at the end of the day, a very good thing -- but it does have serious problems), or the merits of having no accountability by absolute anonymity (anonymity is, at the end of the day, a very good thing -- but it does have serious problems), it does seem that the status quo makes it pretty easy to pierce the veil of anonymity, even where there is no good faith basis for the claim in the first place.
I know the following isn't what most/. readers want to hear, but I think it needs to be said.
Certain Slashdotters characterize how "easy" it is for them (and thus, their friends) to obtain bootlegs, inferring from this how ineffectual it is to undertake enforcement activities with respect to these works. Taken in the broader context, this misses the point, and all evidence is to the contrary except in the narrow context of those statements.
I am here to tell you that media clients do not casually call a lawyer to chase flies -- in exchange for the sizeable fees they pay, they want measurable accountability. They wouldn't do what they are doing and pay what they are paying if it didn't accomplish what they wanted. Arguing that LA is not getting what LA wants because they didn't eradicate piracy is merely pounding upon a straw man.
The bottom line of LA's activities to date is that it is no longer trivial and cost-free for average joe to obtain his bootleg, or to manage and distribute a bootleg haven. Despite allegations made here to the contrary, I think Lucas has the better of this argument.
While it is easy to find TPM bootlegs when you know where to look, only a small percentage of the population (and our immediate friends) know where that is. Yes, yes, with sufficient perseverence, it is possible to find whatever you want on the net, but Average Joe doesn't have that attention span, and AJ's parents won't let him risk the family abode to watch a movie. AJ's ISP will auto-punt on receipt of a DMCA letter, and by and large, the deed was done precisely as LA wanted it.
The goal is simply to assure that the vast percentage of AJ's out there won't have a bootleg, and won't harbor bootleg sources.
Lucas isn't trying to STOP piracy (he would like that, but it isn't close to important to do so), he's trying to preclude a piracy so rampant as to have a financial impact on his revenues exceeding his cost of enforcement.
And with all respect to my colleagues here, I think it is hubris for us to presume that our estimates of the financial costs of piracy are better than those of Lucasarts and media players. Unlike us, LA actually measures the cost of piracy and demonstrates faith in their beliefs by paying Yankee dollars for enforcement. They budget these costs based upon actual research and agressive bean-counting. If they didn't think the expenditures were justified, they wouldn't do it.
In short, they are never going to have the straw man absolute non-piracy, but who cares? They are getting enough protection to suit their purposes and satisfy the market infrastructure whose purchases are their primary source of revenue -- good enough for Jazz, so to speak. And they are getting protection whose value exceeds the costs of enforcement (or the cost of non-enforcement) -- or else they wouldn't be paying those costs.
Slashdot Mirror
First, common law has recognized typewritten an telex signatures for years. (As well as shaven cows, for that matter).
Pen-and-ink signatures cannot be strongly authenticated, or strongly bind the signature to whatever is being transmitted (indeed, forging and lifting paper signatures is a trivial exercise).
While I cannot argue with the proposition that assymetrical encryption is clearly superior, done right, to pen-and-ink signatures, this does not render electronic documents not asymmetrically encrypted inferior TO PEN-AND-INK signatures (or X-marking, cow shaving, foot casting and other bizarre but legally valid signatures)
(1) unclear, it would depend upon state law and common law development for each excluded arena. Most state laws governing wills require them to be executed at a face-to-face ceremony, regardless how the document is executed, so most e-mail transactions would fail. Other laws require "writings" (as opposed to "signatures"), and local state law would determine whether an electronic instrument is a writing, even if it is "signed."
In short, a lawyer's answer: it depends.
(2) unlikely, and probably an unfair interpretation of the statute or its consequences.
(3) I am on the fence on these subtle religious points.
This bill does not require the use of crypto.
Clickwraps (as opposed to mere shrinkwraps) are fairly well-established as binding, but I doubt that a click would be a signature. On the other hand, type "OK" WOULD constitute a signature.
This is also the law in almost every jurisdiction today anyway. Further, no writing would be required for many license provisions in any case -- the statute of frauds may not apply, particularly if the package price is less than $500.00.
I believe this is correct. A decision the year before last (in a case called Norton, or the like), held that a facsimile transmission was not a "writing." This largely provoked the adoption of the new bill.
I agree that a statute providing that any electronic signature constitutes notice to a would-be recipient would be unconcionable, inviting all sorts of foul conduct. I saw little in this bill to do that -- to the contrary, all it provides is that the electronic writing wouldn't FAIL TO BE NOTICE, just because it was electronic.
I actually think the solution is to state that notice must be accomplished in such manner as to ACTUALLY OR REASONABLY BE CALCULATED TO GIVE NOTICE, rather than quibble about the technoloy used to do so -- which will change over time. If an obscure means is treated as a notice, whether paper or otherwise (for example, as fine print hidden in a document purporting to be junk mail selling magazines), it is not treated as notice, notwithstanding the fact that it is most assuredly a writing.
Why should electronic instruments be any different? If a reasonable person in the place of the consumer (or if its consumer protection legislation, like insurance), then a reasonable idiot in the place of the consumer would consider they had notice, why does it matter if it arrived by e-mail? Likewise, if the manner used was sneaky, regardless how it was given, why does it matter whether it was in writing?
If a person uses e-mail for every interaction in his or her life, and receives an e-mail, reads it and actually got notice, why should she be able to rely upon a technical defense of the "non-writingness" of the e-mail? Why should it matter for these purposes whether the notice used digisigs?
A copy of the House Bill is available on-line.
/S/ Alice
Electronic signatures are almost certainly "valid" (that is, legally enforceable as signatures) under the common law of every state (except perhaps, Georgia, which has some renegade case law regarding facsimile transmissions), just as signatures using other non-pen-to-paper technologies have been for centuries. The Statute of Frauds has not, for example, excluded, typewritten or telex printing of names, shaved initials on the hide of a cow, impressions of a footprint cast in sand, and so forth. This legislation is not necessary, but it is helpful for a conservative lawyer to be able to rely on statutory law rather than inviting their client to be the first one to litigate these new fact patterns.
In short, the law does not require more than a physical fixation of an intent to authenticate -- a ceremony if you will. A signature does not need to be non-repudiable to be valid -- I could mark "Micky Mouse" or "X" at the end of a document and be bound, if it can be shown that I intended to authenticate the document when I made the markings.
On the other, hand, good commercial sense ordinarily precludes the use of or the accepting of such "alternative" signatures, even if they are legal, for the simple reasons that they create tremendous difficulties in proving authentication when push comes to shove.
The decision to accept an "X" from a literate contractor when closing a deal involving zillions of dollars would be foolish, and we would ordinarily ask them, politely, to sign the document by writing their name. When a shaved cow is offered, in anticipation of the difficulties of getting the critter into the courthouse -- we smile, thank them, and offer them our pen instead.
Its all about choice. The question is, who shall make the choice whether we use ink, pen-on-paper, crypto or typewritters: the individuals using the signatures, or the government?
Two distinct views are prevalent in state electronic signature legislation: a minimalist statute that simply says that electronic writings are writings and manifestations of authentication of the writings are signed writings, leaving it to the market to decide (such as Florida's Electronic Signature Act); and more protective bills, which only validate signatures using certain technologies, such as assymetric encryption (Utah).
The bill passed by Congress is a minimalist bill, like Florida's (apparently patterned after the present draft of the Uniform Electronic Transactions Act). It is neither good nor evil, IMHO, but can be very helfpul for encouraging certain types of transactions.
TRUE, it makes an e-mail of the form:
Bob, I agree to buy 100 widgets at $500/widget, FOB TAMPA -- ship immediately.
a valid memorandum for statute of frauds purposes (the statute of frauds requires signed writings memorializing certain kinds of contracts as a precondition to their enforceability). But so what? That is almost certainly already the law anyway!
Whether Bob or Alice would agree to do business in that manner should be up to Bob and Alice. Of course Bob should be concerned that Alice might later repudiate the transmission, and must be concerned about how he can "prove up" (should it be necessary) the signature in court. On the other hand, who should make the choice as to what technology, if any, Bob should accept, Bob or the government?
Each of these comments from our colleagues make a similar point: I'll call it the Spock princple. The good of the many is more important than the good of the few, or the one. Perhaps this is a viable and important social principle. However, this view is antithetical to the notion of freedom, at least in the sense of libre liberty.
The Spock principle, as enforced by another, is not consistent with liberty, at least not in the Enlightenment or Jeffersonian sense that the term "liberty" is understood. Our United States Bill of Rights focuses PRECISELY on protecting the rights of the individual AGAINST a claim of the greater good by a majority (or an individual). This is because, at least here in the USA, we address freedom of an individual. The good of the many cannot ordinarily subvert the good of the few, or the one.
I do not suggest that a communitarian evaluation of social policy is wrong-headed, or that legislating constraints on some freedoms is contrary to the American Way. The Bill of Rights if focused on only a few of the most important individual liberties, leaving society a broad range to limit individuals for the benefit of the Spock principle.
But to abandon that status of liberty on the Spock principle is to abandon the status of Freedom. Stallmans is a "balancing" of freedoms, not a true claim to liberty in itself. This is a different principle. The fact that words such as "pragmatism" or "Machiavellianism" have neutral or negative connotations among we tech-heads, as opposed to "freedom and liberty," is not a reason to refrain from calling a spade a spade. To say that Mr. Stallman's principles described in his response to Stig are focused on an absolute sense of freedom is to apply a logic that defies gravity.
What I am saying is that it is pabulum to speak in freedom language ("that is a Yang word!") by stating that it is OK to constrain liberties of some person for the benefit of another. To use GPL is to concede that Copyright is not an absolute evil, and further that imposing limitations on the freedoms of one group in favor of broadening the privileges of another, for the reasons set forth in my original posting.
This is pragmatic, not libertarian, reasoning.
Stallman's use of Copyright in GPL is absolutely and undeniably (indeed, using his own definitions of power, freedom and GPL) an exercise of a power to limit the freedoms of another. Some suggest that he is a benevolent despot in so doing, and they may well be right.
I have fought a few first amendment battles in the courts and the legislature. I can assure you that EVERY censor makes almost precisely the same Spockian argument. "I am preserving freedoms for the greater good by making only minor impositions on the freedoms of a few." As recently as the Loudon County library censorship case, the library took the position that filtering software preserves the "freedoms" of individuals to use the library without having pornography surrounding them. This is a very, very slippery slope.
But to evade Stig's most reasonable arguments that the particular exercise of power of the fredom of another may not be striking the right balance by quibbling over which redefinition of the word "free" is the official redefinition, well that's just newspeak.
Having conceded that it is OK to "trample" the rights of "the few, or the one" for the benefit of "the many," we have abandoned an absolute sense of right and wrong for a more Machiavellian, totality of the circumstances balancing.
To that end, Stig has it exactly right as to which questions should be asked. As to who has it right as to what balance should be struck, well, that issue simply has yet to be joined.
And this is a shame. So long as the "true believers" insist on finessing the very question with mantras, we will never get to the truth.
The truth-seekers among us should grow impatient with the pabulum. It is time to answer Stig's points on the merits, and not with the raising of nice-sounding principle words, like "freedom," when we ourselves are willing to abandon freedom just as soon as we see a way to rationalize it using a Spock argument.
We do not support GPL on the principle of an absolute appreciation of freedom, but on the thesis that GPL limit of the freedoms of some provides a greater net balance of the greater good. While the mantra of "free software" sounds great and makes us feel good, it is philosphically unsupportable on libertarian grounds, depending more upon a Machiavellian attitude that the end justifies the means.
I stand by my thesis: Sophistry, even by RMS, is bad for the movement.
P.S.: A number of the respondants raised the very objections anticipated in my original reply. I will stand by the answers set forth there.
Stig makes some powerful and interesting arguments, beginning with an undeniable truth: GPL is more limiting on individual choice as to what can be done with a work than, say, dedication of a work to the public domain.
While it is undoubtedly true that there may be good reasons for the GPL limitations (and there are), it is undeniable that there are limits, and in this sense, GPL software is less "free" than public domain or BSD licensing.
I think the issue has never been whether one form of licensure (or non-licensing dedication to the public domain) is more "free," but rather the very question posed by Stig:
If we take freedom as an absolute good, and any infringement of freedom as a wrongful limitation, then we must turn away from all licensure, and simply dedicate our works to the public domain. To the extent we are redefining the meaning of these words to suit our case, we are engaging in tautology, marketing or sophistry.
I believe RMS has done so here. The gaffeometer pins immediately upon the occurence of phraseology such as "the official definition." Even worse, the suggestion that one should avoid legitimizing copyright by using the nominally salutory phrase "intellectual property," however legally accurate the phrase might be, proves too much, and suggests that RMS statements may have focused too much more on the form than substance.[1]
But moreover, look what happens when we start adopting the pabulum as truth. RMS' definition of freedom would surprise many of the nation's founders, notwithstanding the quotation of populist cliches:
But just a few paragraphs later, we see the true nature of GPL:
In other words, at the end of the day, "what the GPL does" is to grant an author the right to "control activities that mainly affect other people." In other words, even accepting RMS statements on their face, what GPL does is about power, and not freedom.
Any exercise of a copyright pursuant to a license is the exercise of a power to exclude others from the exercise of certain enumerated rights, subject to the limitations of the Copyright Act.
Two anticipated objections to this analysis seem apparent:
But to accept either of these responses is to abandon the strongest arguments against intellectual property generally, namely, that:
It is one thing to say that Copyleft is a necessary defense in a world of proprietary software. It is another thing to claim that the assertion of a copyleft is consistent with freedom while insisting that an assertion of a copyright is inconsistent with freedom. The very argument RMS makes in one case would defeat the argument advanced by him and others against IP rights in the first place.
In short, the truth of the matter lies somewhere between the stark "my way or no way" response of RMS and the straw man he imputed to Stig. The truth is rather more interesting. I don't know what the truth is, but I belive, at least, that Stig asked the right question:
Are the particular choices we are making "striking the right balance?"
The issue isn't freedom versus power. Neither absolute is contemplated in any of the strategies advocated here -- the question is whether we are making the right choices?
To pretend otherwise is sophistry. We should not permit ourselves, or each other, to engage in convenient redefinitions of common words to advance a cause. We begin to sound to the unconvinced like rambling, pabulum spouting, true believers. And they would be right to write us off for advancing such nonarguments.
Let us accept the weaknesses and inconsistencies of our assumptions, and argue why they are better in an imperfect world, or let us abandon the weaknesses entirely, notwithstanding such good derived therefrom.
Stig raised some very important questions. It would be a mistake to ignore them, simply because they challenge many of our core assumptions. I do not suggest by any of this that Stig is correct in his conclusions; I am inclined instead to listen and learn. There may be a great response to Stig's essay somewhere, but regrettably, that answer will not be found in RMS' statement.
[1] The suggestion that "intellectual property" (IP) is "too big a generalization" because it lumps together disparate bodies of law such as copyright and trademark is logically indefensible. Certainly the phrase is broad (despite the fact that lawyers who practice it are deemed to practice a narrow specialty), encompassing far more disparate issues, such as right to publicity, moral rights and the right to be free from unfair competition.
But the law adequately characterizes a body of intengible personal property and related rights to exclude others from the freedom to perform certain acts unrelated to any particular object. Just as the phrase "programming language" reasonably distinguishes LOGO, C and Smalltalk from, say, a European Swallow, so can the phrase intellectual property distinguishes copyright and trademark from the both of those things.
With all due respect, the "my way or the highway" view that any phrase phrase with a salutory connotation for a thing one deems "bad" is incorrect, and any pejorative phrase for a thing one deems "good" is perfect tends to prove my point that Sophistry is in the air.
Let us not try to win the "newspeak" word wars, its well past 1984. Let us instead return to the real world, and fight the real fights. There is much to be done, and this pettiness just gets in the way and discredits us all.
In the public hearing it was stated that there is a law "so-called Rule 56, which requires that that material prior art, of which the applicant is aware, be disclosed to the Office." It was said that they understand that it may be hard to comply to this rule. I looked through the patent but I could not find any references to prior art.
.tiff format Significantly, the author of the patent affirmatively discusses and discloses two IBM written proposals, including a more general windowing approach.
It's on the front page of the patent, for gosh sake! Also, you will typically find a prosaic discussion of prior art in the beginning of the specification. I commend rereading the patent, which can be found on-line in fulltext and
So it seems even if there is prior art that this does not stop it from being patented if it is "sufficiently different" (see below). So exactly what role does prior art play in the patent process then?
The prior art determines whether or not the patent is valid. Prior art not disclosed during examination can be a basis for later invalidation, either by a suit in federal court, or by a process called reexamination. The Congress recently tried to "pump up" the effectiveness of third party reexaminations, but independent inventors bitterly fought against this, and a fairly lukewarm substitute is now pending.
From the excellent document What can be patented it states that abstract ideas (read: windowing for the Y2K problem) are not patentable.
While abstract ideas are not patentable, a particular approach toward "windowing for the Y2K problem" is almost certainly a patentable "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result". The Federal Circuit's recent decision in AT&T v. Excel explains very well the state of the law on the "mathematical algorithm" and "method of doing business" subject matter issues.
From the same document referenced in the above paragraph it also states that "The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention."
Be very wary of paraphrases, and understand that unobviousness in patent law is not the same as the common use of the term. This was discussed at length in a recentl slashdot discussion on patents. No flash of genius is required for patentability, merely that it hadn't appeared or been suggested in the prior art, taking individually or in aggregate form.
Notice also that the [Amazon] patent states that "one skilled in the art" will appreciate that the patent also covers other ordering mechanisms such as email. This is incredulous... this means that the patent convers all automated email-based order processing systems!
The claims are the thing to determine what is and what is not covered. It describes what is, and what is not, within the scope of the patent monopoly.
On a side note, on the US Patent and Trademark Office's web site in the definition of a patent they state that "US patent grants are effective only within the US, US territories, and US possessions." How exactly can this relate to the internet?
Whenever the invention is made, used, sold, offered for sale or imported into the United States, the Patent Act is triggered. The examples suggested by the author would probably give rise to claims for patent infringement within the United States.
*shrug* Seems like a reactionary move that won't get anywhere. The effort wasted changing sites to a widely-incompatible format would be better spent writing to your congresspeople and getting these rediculous century-old patent laws changed.
Title 35 of the United States Code (the United States Patent Act) was passed in 1956, and has been amended repeatedly, as recently as this year and last year. Many things can be said about the Patent Act and U.S. Patent policy, but "century-old" is inaccurate. Indeed, if you want to talk about its heritage, the present Patent Act was inherited from the First Patent Act, passed during the First Congress, pursuant to Article I, Section 8 of the United States Constitution.
So please, either acknowledge that its a modern act, or respect its multi-century heritage.
The law in many jurisdictions (California, Florida and other states have statutes that make things different, and common law varies all over the place, so your mileage may vary) is simply this: A non-compete is protectable only to the extent that it is protecting a legitimate business interest and to the extent that the limitations are reasonable.
The meaning of those words varies widely, and the scope of what Courts may do varies as well, but too many judges fall back upon prior cases that have held 1 or two years to be "reasonable" per se -- this judge did exactly right, by looking at the totality of the circumstances, and making a determination. Whether the arguments there are applicable to any particular job remains to be seen, but the judge's legal analysis (and, intuitively, determination of the facts) appears right on: the question is where the balancing of the protectible interests versus the reasonableness of the constraints balances too much to the plaintiff.
Note that non-compete and non-disclosure are two radically different bodies of law. The mere fact you can work for a competitor under the policies of the Thirteenth Amendment and antitrust statutes is entirely different from the policies protecting real and legitimate trade secrets.
But don't try to do this at home, kids . . . every case is different, and every case can go 180 degrees the other way on the subtlest of factual differences.
The tests (from actually READING the article) will work on the well-established psychological principle of analysing known violent people's answers to a series of questions, discovering where they differ most from normal people's answers, and using those to distinguish between violent and non-violent people. You can use this technique for nearly any trait, and it works reasonably well.
This unsupported proposition is preposterous on its face. First of all, there is a long line of substantial evidence that psychiatry is incapable of effectively predicting dangerousness. See American Psychiatric Asssociation, Clinical Assesments of Violent IndividualsTask Force Report 8, 24 (1974).
Secondly, exactly how would you prove the aformentioned proposition doesn't trigger false positives? Diagnose a sample size, let them lose and count the carnage? There is no credible and ethical methodology that can measure the proposition whether a person adjudged for mass murder was properly diagnosed.
Accordingly, the assumption that the test works is bad enough, but the unsupported assumption that the test has been shown to work is, well, incredible.
It is certainly true that one can provide a test that will capture all dangerous humans. (Count the chromosomes, for example). The problem is that a test that minimizes false negatives will pick up way to many false positives, resulting in substantial loss of civil liberty and social standing. This is unjust and, IMHO, evil.
It's also naive. Computer dating doesn't work so well. Are we truly to believe we can match students with traits of dangerousness?
Monty Python had it right: A far sounder methodology for determining if a student is a witch is to use scales to see if she weighs as much as a duck.
An admittedly old study demonstrated that psychiatrists have not reasonably demonstrated an ability to predict future violence, even when focusing on populations of those who have exhibited prior violent tendencies. American Psychiatric Association, Clinical Aspects of Violent Individual, Task Force Report 8, 28 (1974).
In short, the risk of false positives from such profiling programs seems large compared to the enormous social and civil liberties consequences for those students falsely targeted. The vast overreactions to routine adolescent experimentation with minor "antisocial" activity is an abomination for a free society, particularly when it is implemented as a de-facto social casting system.
The methodology of any such system appears highly suspect, absent enormous research and study, and modifications to short-term dangerousness models based on extraordinarily rare incidents such as the Colombine disaster makes a mockery of modern statistical methods.
In short, this is evil -- and it has consequences that are far-reaching: Imagine that a principal ignores the unreasonable results of such a program (or refuses to use it), and the rare explosion occurs. Is the principal or school system individually liable for negligence resulting from a failure to expel the child, or at least a failure to warn the entire student body? Think of the tradeoffs that must face a lawyer representing the school system -- how could she help but advise the system to "play it safe," by socially destroying the "marked" students?
No, unless and until this "program" is proved by serious, high-quality, methodologically sound studies showing an ability to predict dangerousness without substantial false positives (which to this day i have understood to be beyond the reach of modern Psychiatry), use of this sort of thing is simply a modern equivalent of divining witchhood with a duck.
The subject matter requirement. Software is not invalid merely because it relates to an algorithm, any more than a design for a catapult is invalid because it relates to the law of gravity. If the invention imposes structure beyond the most abstract account of an algorithm, that is sufficient. Like it or not, that's the law. No critic should enter the debate unarmed on this point. So, load up your ammo and study the most recent and authoritative statement of the law on the subject matter requirement.
The Novelty Requirement.Certain kinds of prior publication and/or public disclosures of an invention (in jargon, "references") can invalidate a patent claim if, but only if, the claim reads on the reference. A claim reads on a reference if, but only if, each and every limitation set forth in the claim appears in the reference. As an example, if my reference frobozinates an array by (i) prefreezing it; and (ii) using a dual coloration method to frobozinate it, and the claim is directed to: (i) prefreezing; (ii) slighly defrosting; and (iii) using a single coloration method, the claim is deemed novel because it has an additional step not found in the reference. If the claim is directed to: (i) prefreezing; (ii) using a single coloration method with a miracle dip, the claim is deemed novel because it doesn't have the dual coloration limitation. Finally, if the claim is directed only to the use of general frobozinating with a prefreezing step, this claim is not novel, because the claim "reads on" the prior art. (even though the claim doesn't include ALL the steps disclosed in the art).
The Utility Reqirement. This is not likely to be an issue, unless the claims are directed to something criminal in nature (automated locksmithing or cracking technology, perhaps) or something generally considered impossible (halting problem, perpetual motion, etc.)
The Unobviousness Requirement. As you may have guessed by now, this doesn't mean what you think it means. Unobviousness is essentially a way to "loosen" up the rigid (and easily avoided) novelty standard by stating that even if a single reference doesn't have every element of a claim, the differences between the reference would have been obvious to a person of ordinary skill at the time of invention.
In practice, you can best understand this standard by imagining a programmer version of the film character Vern. Dim-witted and not terribly self-aware. But Vern has a unique, almost idiot savant talent, he knows everything. Every book ever published -- every program ever publicly used -- every thing that legally constitutes prior art with respect to the particular claim.
So, if a claim is directed to an A, B and C; and one reference understood only by a handful of high-level computer scientist philosopher-kings discloses A and B, and another reference in a Ph.D. Thesis from the late 1900's with only a single copy remaining, but publicly available in a disused lavoratory in Lucerne discloses B and C, Vern would know both references.
However, Vern would not think to combine them unless it would be "obvious" to do so. Under the patent law, this basically means that there is a specific teaching to combine the particular references in one or the other of them (or in another reference). It is not sufficient to certify after the fact, when all the references are gathered and the problem is placed before you in view of those references, that you would think it obvious to combine them. Vern generally isn't that bright, unless the differences between the claim and one reference are effectively trivial design decisions.
So, in short, some relatively small number of references must combine to identify EVERY feature claimed, and there must be some reason to combine the references.
Conclusion. It is for these reasons that noone will ever claim a well-known program idiom. A claim directed to the idiom alone would be invalidated by a single program exhibiting the idiom.
On the other hand, the obviousness or non-novelty of a particular idiom does not render a combination of elements invalid unless the prior art (or an "unobvious" combination of prior art) contains all of the elements of the combination.
Clearly, the preceding discussion is (intentionally) a super-simplified description of the issues of validity. My efforts in describing the foregoing is to help my colleagues to develop an intuition as to what the law *is*, so that they can better articulate their criticisms of the system or of particular patents with respect to the law, and not to a straw man.
As a patent attorney and regular slashdot contributor, I also commend the author for bringing home some of the essentials of patent practice. From the responses to date, it is apparent that he has hit a nerve.
I would like, however, to clarify a few points. The enforcement of a patent is something of a Poker game -- it costs a small fortune to defend, yes, but it costs an equally small fortune to assert it as well. Further, the Plaintiff will also risk the patent with each complaint he files -- for every time it is asserted, a judge or jury can hold it invalid, which holding unless reversed by the Federal Circuit or the Supreme Court has the effect of destroying the patent forever.
Thus, a Plaintiff with money suing a defendant without money puts a valuable asset at risk, probably without any chance of recovering a dime. One doesn't go typically go "all in" unless the pot is worthwhile. But to deter the plaintiff from going "all in," it is critical to know how to play the hand.
One vehicle, and an important one used by corporations, is the idea of a pool of patents to be used for cross-licensing purposes. When a non-critical patent is asserted, and the claim is adjudged to be non-trivial, the corporation can offer to cross-license as an alternative to raising counterclaims for infringement, and placing the plaintiff on the defensive. This is often an effective way to resolve most of the harm.
Accordingly, I disagree with those who think that it would be pointless to pursue patents for the open source community. To the contrary, having available a pool of patents, mutually enforceable against an OSS defendant, may deter many of the bullshit claims.
Yes, they require time and effort to obtain; and yes, they cost money. However, there is a raft of patent attorneys out there who sympathize with the open source movement, and who would be willing to facilitate under appropriate basis the filing and prosecution of such applications on a pro bono basis.
Part of the difficulty lies with the community, however. The aversion to the patent system has led to a sense that it would be "wrong" to apply for patents in self-defense. From what I have written here, I obviously disagree with this point of view. Folks like Karsten Self and others have been promoting patent pools for some time, and I encourage them and the community to proceed with building up the OSS Patent Pool.
I, for one, can be counted on to provide services to that end. I invite other patent professionals to do so as well.
I invite other patent attorneys and patent agents who feel similarly to contact me by e-mail or otherwise, so that we may begin to marshall our forces to that end.
The law in this area is complex and rather unsettled at the moment, though we are seeing more and more decisions on point every month.
You infringe a trademark when you use a mark in commerce in a manner that would create a likelihood of confusion or a likelihood of deception as to source, origin, affiliation, etc. These are all essential elements. However, the ownership of a trademark is not the same as ownership of a word: the word, generally speaking, remains available for denominative use. (That is, I can still be a playboy if my wife will let me, but I cannot sell Playboy-brand services that would give rise to a likelihood of confusion)
Confusing things further is that use of a competitor's trademark in a truthful and non-misleading comparative ad is (in the US, not everywhere) a blessed activity, protected by trademark policy as well as the first amendment. By its nature, such an ad does not create confusion, but to the contrary, makes stark contrast between the advertiser's goods and the trademark-owner's goods.
But it is odd that an ad on a website which slams to, but not over the brink, of honesty a product by name is blessed, while informing users via metatags or iNet portal keyword purchases that their interest in a competitor's product implies they should look at their different product. And thus, this may not be, and is probably not, the law.
But the devil is in the details -- cases swing 180 degrees depending upon subtle facts -- and the Courts are just now beginning to articulate how we distinguish between fair competition and unlawful infringement, between fair "hey, look at me when you look at them" competition, and "hey, buy my stuff because I'm them" free-riding on another's goodwill.
I wish I could report simple, bright-line rules to govern conduct in this arena today, but they don't exist as I write this. Just as in plain, published prose, some uses of a trademark of another in a metatag may be infringing, while other uses may not be. The particular facts of each case, including the particulars of the mark itself, will determine the result.
Even when there exist objective criteria defining what software is intended or supposed to accomplish, and even when there exist objective and consistent criteria concerning aesthetics of UI design, art and related subject matter, software is just plain hard to make.
Software is much tougher to make than soap.
Why? Because even a relatively trivial program involves express specification of changes to a massively large state space. In the analog world, an engineer infinitely narrows the scope of vastly larger state spaces to be considered by making assumptions that things behave continuously -- not so with code, which grows combinatorially and discontinuously complex with each additional variable, object or control statement.
Nowhere does this become clearer than when one is asked to engage in true quality control: proving a program correct. Methodologies that work beautifully and elegantly in the small to demonstrate the accuracy of a code segment grow unmanageably out of control when facing a 100,000 to 1,000,000 line program. And in turn, we then have the bugginess of the proof --viz. was the spec specified adequately-- to consider as a new "quality control" issue).
Even the very process of quality assurance in code is harder than Q/A for soap. A scientist may often presume safely, and can often prove, that if the soap behaves properly at two ends of a temperature range, that the soap will behave properly between them. This is almost never the case with code, it being in the nature of digital things to exhibit discontinuous behavior.
The bottom line is that excellent code is enormously expensive -- requiring only the brightest, best and most sophisticated management, quality assurance, design engineers and technicians. Noone wants to pay for what they claim they are entitled to expect. However, this is like most things in life. You can get:
Good. Fast. Cheap.
but you only get to pick two.
Regrettably, management is evaluated more closely for fast and cheap, so noone really worries about good, just so long as its "passable" (and its often easier to pass blame to the coders for "good" than it is to blame them for "fast" or "cheap").
Even if Microsoft does lose handily at the District Court level, don't underestimate the significance of the prior Circuit Court reversal of earlier pro-government findings against Microsoft. The appeal will be to the same Circuit Court, perhaps to some of the panelists, but which panelists will be bound by the precedents set forth earlier.
The bottom line is that the fact findings not only have to be anti-Microsoft for Microsoft to lose, but specifically geared to distinguish the prior case.
At the end of the day, this could all be mere window dressing if the District Court's opinion is reversed. And then, of course, there is always the Supreme Court, who are not particularly friendly to anti-trust claims these days.
In other words, while the battle has been joined, and Boies made mincemeat out of Microsoft's legal giants at trial, victory is not certain. But even if the DOJ does prevail, this result will merely be the result of one battle of a larger campaign.
So watch out for the legal analysis of the fact-findings -- it's not only whether these findings go well for the government, but do they distinguish the prior Circuit court case.
The liability question, at least as put above, is naive. There are some things you can do, notwithstanding even express contractual disclaimers in negotiated and executed agreements, that under certain circumstances cannot be disclaimed -- and conduct leading to personal injury can lead to such liability.
(Think about it -- if liability for medical malpractice could be disclaimed, would there be a doctor or hospital in the world who wouldn't make you sign away your rights as a condition of treatment?)
Accordingly, publishing OSS medical software probably is a risk -- although most publishers (in their individual capacity are likely to be relatively judgment proof compared to the size of most such claims.
But the interesting observation here is the suggestion that open software must be orphaned from regulatory approval for failure of a company to pay for such approval. In my view, that objection is highly overstated and takes perhaps a naive view of the economics of the situation.
Indeed, the company never really pays for the software's approval -- at least at the end of the day. Nor do they pay for the outrageous liability insurance. Customers do. Proprietary medical software that is highly regulated or requires elaborate insurance is expensive, in part, because of these expenses.
If truly good OSS medical stuff were out there, approval might arise in time by the marketplace that intends to use it, either through grants, communal conduct by the marketplace, or "new economy" ideas such as websites soliciting voluntary contributions to support worthy quasi-commercial work.
Those notions should work, that is, unless you believe the "free rider" problem precludes such benefits to society, in which case the arguments for strong IP were right after all. . .
In most cases? Hardly. Indeed, most of the cases addressing EULAs focused on the question of the enforceability of particular clauses, and not on the question whether there was an enforceable agreement.
The only Circuit Court opinion squarely confronting the issue of contract formation, the ProCD v. Zeidenberg case, expressly held that there was a contract.
The better view is probably that the particular circumstances of the transaction dictate the enforceability of the EULA. In particular, if you clicked something prior to buying acknowledging that there would be an agreement, or if the package says something about an agreement inside, its probably enforceable.
Just so you are clear on the theory of these cases, it goes like this. To have a contract formed, you need an offer, acceptance and consideration. The offeror may establish the terms of acceptance in the offer, and hence may say something like: "Here's the deal. I offer to sell. If you want to accept my offer, pay me first, take it home and read the EULA. If you don't like it, return the dough and no deal. If you use it, you bought it." Under this theory, the fundamental tenets of contract law are satisfied, a contract is formed, and the only question is whether public policy is violated by enforcement of the provisions (this almost never happens).
Fair enough, but I haven't the time or the inclination to do that again. I deconstructed many of these issues in the last UCITA announcement, and would be pleased to to so again when I do have time. The same complaint of nonspecificity, of course, can be stated about your reply.
The truth is far more interesting. Its nice to be able to take such a view as that proposed, but only if you are a philosopher or a king. In a Democracy (or in discussions between sovereigns), a far more sophisticated view is required.
The purist view is, simply put, naive. Nothing good, and much bad can come of such absolutism.
Madison insisted until the bitter end that both houses of the legislature must be numbered, even as it seemed that the Constitutional Convention would be all for nought. Thank the lord Franklin and Washington prevailed upon him, so that eventually he agreed to compromise.
Northern states insisted that the Southern states accept abandonment of slavery in both the Constitutional Convention and the Continental Congress. And while the horror of that institution survived through and ultimately caused the great Civil War, it was important that they compromise, or else we might all still be British subjects today (No offense or sleight intended to our friends across the pond).
In short, even as we undertook the greatest feats of our time in making strides toward democracy and liberty, serious and egregious compromises were necessary to accomplish the result.
Particularly with the UCITA, we are presented with a mixed bag. There is much good (and some very bad) stuff in between the pages, and taking the view that the entire work is a travesty -- that none of it is commercially necessary -- or blaming UCITA for permitting the status quo to continue in other respects will simply cause you to lose credibility. Sure, you're philosophy will be pure -- and it will make fine reading in the textbooks.
At the end of the day, however, UCITA will become law, and it will be far worse than it had to be for all of us. It didn't have to be as bad as it presently is, and it doesn't have to be as awful as it probably will come to be.
As an aside, I disagree with the author's presupposition that this Act "causes a loss of freedom." It's a Contact Act, for goodness sake! If you don't want to be bound by the terms, don't contract for them. Indeed, by permitting parties to engage in contracts they would not otherwise have been able to enter, the Act is arguably pro-liberty, not anti.
For the record, I was a staunch supporter of UCC2B in the abstract, noting that it had some serious problems. I was the centrist trying to fight for reason, to mitigate the bad and to maintain so much good as could be kept. Unfortunately, the polar views taken by the two extreme sides made those efforts futile. Eventually, those with power gave up on compromise and began to take more. Ultimately, they drafted a harsher Act, abandoned ALI, and we now have what we have. Count me as someone who still sees UCITA as a mixed bag, and who is lamenting what it could have been had cooler minds prevailed.
**Opponents** of UCITA and its parents missed several opportunities to have a better bill. Now is a time for some introspection, rather than continued choir-preaching and whining. Did we do the best we could do to effect change?
UCITA is another demonstration of the inefficacy of the *flame on* mode of opposition when faced by a politically powerful opponent. By repeatedly overstating the case, opponents of UCC Article 2B ultimately lost any hope of compromise on substantive issues while TPTB simply moved away from ALI, passed the UCITA, and is likely to get the bill passed in a sufficient plurality of states to do harm.
Ultimately, the final bill is worse than intermediate drafts of UCC2B, and is that any surprise? Then was the time to compromise.
Now, encouraged by successes in Congress and state legislatures with assorted Y2K legislation and the DMCA, TPTB are coming to the view that it is easier to try to take all of what they want than to achieve consensus, and in so doing they have actually been aided by the self-marginalizing conduct of their opposition.
This is the difficulty of overstating the case against a powerful opponent.
Arguments made against UCITA and UCC2B overreached to the point that few legislators will take seriously an opposition that merely decries the entire bill. It is a mistake, a serious mistake to oppose UCITA wholesale from this point on, as it was a mistake not to compromise earlier to remove the more negotiable and far more onerous provisions. There is a difference between making a good argument and an effective argument, and on this count, the anti-UCITA critics failed to do anything but preach to the choir.
To be fair, very few Uniform Laws are actually uniformly passed -- not even brilliant successes such as the Uniform Trade Secrets Act. However, they have broadly influenced courts and legislatures in the years that followed, and much harm has already been done just by this vote.
The best chance of minimizing the impact of this Uniform Law as it comes before the several states is to try to neuter its most onerous provisions -- not to try to kill it or marginalize it.
And remember, this is Contract law -- if you don't like it, change it by voting with your pocketbook. Write competitive and/or free software substitutes. Don't whine -- do something meaningful to change things. Issues that truly impact the marketplace or threaten individuals who are not techies can be changed -- that is why we no longer have copy protection. If you can't change it, perhaps the market really doesn't care about the point, and it is *we* who are overreaching?
The real issue here seems to be that a consequence of modern Rules of Procedure is antithetical to general notions of privacy. Without passing on the merits of the lawsuits that are the subject of the article, consider the following hypothetical:
(1) Unfavorable (but clearly not defamatory) information about MEANCO is posted on a website served by ISPSERVICES by an anonymous person identifying herself as an employee of MEANCO.
(2) MEANCO files an absolutely ridiculous defamation action against a Jane Doe. (ISPSERVICES is NOT a defendant, hence no Cubby issues arise).
(3) Since Jane won't step up to the bat, nobody questions whether the lawsuit was valid, and nobody moves to dismiss.
(4) Now, discovery begins in earnest, the lawyer issues a subpoena through the Clerk of Court to ISPSERVICES, who complies therewith, the employee is identified, and the lawsuit is dropped without prejudice.
(5) MEANCO fires the employee.
On the merits, MEANCO never intended to prevail in its lawsuit, and nobody was ever in a position to challenge it. Yet Jane's true name is revealed without a whimper -- indeed, she isn't even in a position to safely intervene without giving up anonymity.
Without passing on the merits of the legal system (discovery is, at the end of the day, a very good thing -- but it does have serious problems), or the merits of having no accountability by absolute anonymity (anonymity is, at the end of the day, a very good thing -- but it does have serious problems), it does seem that the status quo makes it pretty easy to pierce the veil of anonymity, even where there is no good faith basis for the claim in the first place.
I know the following isn't what most /. readers want to hear, but I think it needs to be said.
Certain Slashdotters characterize how "easy" it is for them (and thus, their friends) to obtain bootlegs, inferring from this how ineffectual it is to undertake enforcement activities with respect to these works. Taken in the broader context, this misses the point, and all evidence is to the contrary except in the narrow context of those statements.
I am here to tell you that media clients do not casually call a lawyer to chase flies -- in exchange for the sizeable fees they pay, they want measurable accountability. They wouldn't do what they are doing and pay what they are paying if it didn't accomplish what they wanted. Arguing that LA is not getting what LA wants because they didn't eradicate piracy is merely pounding upon a straw man.
The bottom line of LA's activities to date is that it is no longer trivial and cost-free for average joe to obtain his bootleg, or to manage and distribute a bootleg haven. Despite allegations made here to the contrary, I think Lucas has the better of this argument.
While it is easy to find TPM bootlegs when you know where to look, only a small percentage of the population (and our immediate friends) know where that is. Yes, yes, with sufficient perseverence, it is possible to find whatever you want on the net, but Average Joe doesn't have that attention span, and AJ's parents won't let him risk the family abode to watch a movie. AJ's ISP will auto-punt on receipt of a DMCA letter, and by and large, the deed was done precisely as LA wanted it.
The goal is simply to assure that the vast percentage of AJ's out there won't have a bootleg, and won't harbor bootleg sources.
Lucas isn't trying to STOP piracy (he would like that, but it isn't close to important to do so), he's trying to preclude a piracy so rampant as to have a financial impact on his revenues exceeding his cost of enforcement.
And with all respect to my colleagues here, I think it is hubris for us to presume that our estimates of the financial costs of piracy are better than those of Lucasarts and media players. Unlike us, LA actually measures the cost of piracy and demonstrates faith in their beliefs by paying Yankee dollars for enforcement. They budget these costs based upon actual research and agressive bean-counting. If they didn't think the expenditures were justified, they wouldn't do it.
In short, they are never going to have the straw man absolute non-piracy, but who cares? They are getting enough protection to suit their purposes and satisfy the market infrastructure whose purchases are their primary source of revenue -- good enough for Jazz, so to speak. And they are getting protection whose value exceeds the costs of enforcement (or the cost of non-enforcement) -- or else they wouldn't be paying those costs.