Are you kidding? TPM is one of the most-seen films in the history of the world! Indeed, probably among the most-seen works of authorship of all-time. Still further, I doubt you can get to more than a few digits by counting the number of people who would be capable of obtaining an internet copy who have not already seen it at least once in a theatre.
Exposure to his art is not George Lucas' problem. He has that problem licked, and it is not at all apparent to me that any free distribution would accomplish as much or more widespread interest than his proprietary closed model. It would appear that the IP/market regime is doing just fine in terms of satisfying his concerns for his art so far as distribution is concerned.
Make no mistake, this art costs money to make. But for the astronomical revenues the work can produce, it would not have been produced.
Yes, I sympathize with Jon's concern that noone should be setting silly rules concerning what we can see and what we should see. He made that case well, and enough has been said on that point. The anecdote of his effort to salvage a working mother's "theatre as babysitting" plan was amusing and I honor his chivalric efforts on her behalf.
On the other hand, this "call to arms" trivializes real and meaningful civil liberties issues, and worse, risks alienating virtually every moderate who had not already arrived at a position on the issue. On the scale of importance, this issue is *NOT CLOSE* to the CDA, Export Restrictions, Filter-Fads and other real and meaningful horrors of the Censorship Cabal.
Calling for criminal activity as a form of "protest," particularly in this commercial context where mere "voting with your pocketbook," is louder than any amount of lobbying is both irresponsible and counterproductive. Worse, some of the conduct advocated (helping minors to see movies without their parent's permissions) is dangerous, corrupt and irresponsible. Others have already written about the errors of these ways, so I shall not repeat those arguments here.
What I did want to add is my thought that such conduct eventually cedes the moral high ground to the censors, and fuels their position. The thrust of the pro-CDA movement is the, compelling to some, argument that we need to protect our children from the "bad stuff," whatever that might be. People are genuinely concerned for their kids' well-being, terrified that they are impotent to stop the dangers and are fed the idea that merely voting for censorship will make their children safe. This is a very effective sell to the masses, and should not be underestimated by those of us who know better.
Imagine the PR that would issue as anti-censorship folks become identified with conduct that is (or is perilously close to) a form of kidnapping. Far worse can happen to the movement should some lunatic pedophile ever do harm to a child after taking him or her to some risque film in the "name of liberty."
My point is that calls for illegal or fringe conduct in response to a purely commercial endeavor is not only a bad idea, but that it is futile and counterproductive. Ultimately, such actions play into the hands of those who advocated the foolish rules with respect to which you are protesting.
Mr. Katz advocates conduct here that is petulant, puerile and foolish. While the conduct he decries is likewise silly, nothing good will come from following his program. To the contrary, it is far more likely than not to lead to even sillier rules and restrictions from the powers-that-be.
To the extent we facilitate anonymous use of tokens that permit me to vote, whether in terms of crypto keys, smart cards or other information not uniquely associated with my body, we facilitate the ready transfer of that token to others. And with that we facilitate the sale of those tokens.
What is to keep the Green party from simply collecting Floppy disks bearing the voters key informtion, paying $5 to $50 per vote for the data?
Requiring physical attendance at the polls protects more than the individual who is voting -- it protects the integrity of the system from outside manipulation. We need to deprive voters from being able to prove how they voted, not for the benefit of that voter, but so to protect the SYSTEM from abuse by unworthy voters and vote-buyers.
I do not see how that can be avoided with existing encryption protocols of which I am aware.
The enforceability of shrink-wrap or non-wrap license agreements certainly remains, at least, an open question. While at least one Circuit Court (the Seventh) has found them to be enforceable, several others have not enforced shrink-wrap provisions for various reasons. Recent District Court cases in other Circuits have characterized the Seventh Circuit position as "the minority view."
In short, I respectfully dissent from the second sentence of the message to which I respond.
I note, with interest, that recent efforts to add a new article 2 to the UCC were directed to precisely this question, which would tend to support OSS non-wrap licenses. It is ironic that these proposals were largely rebuffed without much analysis by the open source community, precisely because the proposals were also supported by IP holders.
It is important to recall that, at least, the Stallman view --which eschews the notion of public domain free software in favor of GNU-like licenses-- depends upon the enforceability of Copyrights and related license agreements.
In my legal practice, I am more and more frequently asked by clients (one or more a month now) to review ALL licenses of incorporated or embedded open source code and to advise or opine as to the specific obligations arising from the mix of software and the manner in which it the software is mixed with putatively proprietary code.
Unsurprisingly, clients' first question is whether (and if so, how much and how) code must be distributed in open source or at least offered for distribution. They are often surprised that there may be serious questions whether the software can be distbuted at all!
As it turns out, these questions are rarely easy ones to answer, even after assuming that the agreements are all fully enforceable. On the other hand, the failure to perform such an analysis can lead to substantial downsides such as the suggested example.
Fair enough. But it is important to distinguish between statements of the form "X patent is invalid" and "X patent should be invalid." Anything else is just kiddding yourself.
It has been suggested in various postings that the validity of software process patents, in themselves, is still in question. Indeed, nothing could be further from the truth. After recent Federal Circuit cases, the validity of software inventions as patentable subject matter is no longer even an interesting legal question. The only remaining issue is whether the invention is indeed new and unobvious. For better or worse, the floodgates have been opened.
Since the 1983 Supreme Court case in Diamond v. Diehr (and in practice well before then), software patents have been issued. After recent cases in the Federal Circuit, there no longer remains any doubt from a legal perspective whether this is the case.
One case in particular, AT&T v. Excel Communications, Inc. articulates rather well and unequivocally the Federal Circuit's view on this matter. I highly recommend this case to anyone who would like to consider themselves well-educated on this subject. The long and short of it is this:
"The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to 'include anything under the sun that is made by man.'"
It is now clear, for better or for worse, that any claim directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result'" is patentable under 35 U.S.C. section 101, provided, of course, that the claim is also directed to an invention that is new, useful and unobvious.
Neither of the Apple/Microsoft cases "proved" the point for which they were cited here.
The Apple v. MS case involving Windows addressed a claim for copyright infringement in view of a license agreement. This had nothing to do with any patents.
Apple's patent case against Microsoft (also unrelated to this question) was settled when Steve Jobs rejoined Apple in a cash-for-stock switch.
This would not be the case unless they obtain preliminary injunctive relief. Absent an injunction, defendants are free to continue as they choose, albeit perhaps subject to potentially increased liability for willful infringement in some cases.
This is not to say that I anticipate that plaintiff would not prevail upon seeking preliminary injunctive relief, but its never a lock -- preliminary injunctive relief is an extrarordinary remedy precisely for the reasons anticipated in the note to which I am responding.
And if would have no clue how to get things like this, how would average Joe ever get clueful?
If you want to defeat "censorship," you need to be able to publish widely, not covertly. If you can't do so without fear of criminal responsibility or civil liability -- or if Joe is going to have to look over his shoulder to assure not being arrested for criminal activities of obtaining a copy, you simply aren't playing the "power to the people" game, but are merely entertaining friends and relations.
But the bootlegs aren't easy to find
on
Bootlegging Buffy
·
· Score: 2
Jon seems to overestimate the bootlegger's abilities to distribute copies beyond the Internet's "inner cliques." An average user is not likely to be armed with more than a report, a pointer to recently-killed links and the URLS of some portal search engines.
Those search engines don't reveal very much. Some straightforward queries at Altavista and Googol disclosed at most three relevant sites, each of which had already been "lawyered."
My experience is that the same seems to be true of the supposed "rampant" distribution of bootleg copies of the Phantom Menace.
I admit I didn't try very hard -- perhaps half an hour or so. Perhaps a few die-hard fans might be willing to work harder to find their copies, but few will find it worth the effort. But if it isn't trivial for me to find it, then it won't be easy at all for everyday Joe to get a copy, and then censorship hasn't been effectively combatted at all.
Indeed, there will always be a subculture distributing bootlegs -- the only problem is to contain it so the subculture is commercially unimportant. It is not clear to me that the Internet has made the bootleg culture substantially more of a threat, particularly in view of recent laws.
Indeed, since DMCA provides recourse through the ISP's, who own meat and metal and often have a stream of commercial contacts with the USA, it is actually fairly easy for a lawyer to shut down many or most piracy shops. I suspect real censorship (where it is legal) can operate the same way.
That, together with the fact that the activity is itself illegal, suggests that maybe Jon was too quick to suggest that the Internet is the great equalizer.
Joss Wheedon's Grateful Dead Moment
on
Bootlegging Buffy
·
· Score: 2
Apparently not everyone on the creative side is in opposition to the conduct. Cinescape Online reports Buffy Creator Joss Weedon saying,
"OK, I'm having a Grateful Dead moment here, but I'm saying, 'Bootleg the puppy.'"
Careful! Censorship never dies . . .
on
Bootlegging Buffy
·
· Score: 4
. . . it just changes its shape.
We in the United States, who are largely protected by the Courts and agressive litigation strategies of groups such as the ACLU, have grown complacent over time about censorship. We have grown to believe that the "bad guys," regardless of who they are and what they stand for will never be able to shield us from the light because of the almighty Bill of Rights.
Not so, Joe. And the liberating power of the Internet is not necessarily all good. It is, indeed, a vast wasteland and small voices can be truly and completely lost in that vastness. Moreover, the attractiveness of private censorship in the form of momma-ware and other filtering technologies invites willful or accidental blindness to content that can be controlled without the benefit of a government. In this sense, censorship is simply moving from use of government to another form, which should probably be the topic of another thread.
Yet another way in which censorship is effected today is by abusing the marketplace of ideas another way -- filling it with counter-content. Spamming is a tremendously effective way to bury opposing content, and when well-executed, is not always easy to counter. Sometimes the marketplace of ideas requires antitrust legislation.
Others have written about this particular circumstance of the Buffy affair not being a censorship issue. I will not pass on the point (though I share this view) but instead will assume that Jon is correct that somehow Warner is "censoring" content from the public. This kind of censorship, keeping secrets, is indeed much more difficult than once it was.
But this isn't the kind of censorship that is most dangerous and troublesome -- the keeping of content from the masses, which content is highly popular and popularized. When the majority wants to hear something, censorship has always been totally ineffective, even before we had the internet. Popular voices don't require first amendment protection, its the unpopular ones that are hard to save.
It is mostly when the majority wants content to be buried that civil liberty is really at risk.
This is why the casebooks are filled with overturning of laws dealing with Nazis marching in Skokie, "F*ck the Draft" jackets and Flag Burning -- It is the unpopular views that require protection.
It is the tiny voices, highly disapproved of by the marjority, who need protection. And without the clamour of a large and powerful activist community, those voices remain tiny, buried in the vast wasteland of the internet. As effectively censored as if government had squashed each publisher with a tank.
In many respects, I think, censorship has far more options on the internet than elsewhere. Even if you disagree with this point, consider at least whether it is dangerously arrogant to complacently presume that censorship has become impractical. Maintaining vigilant awareness to censorship in all forms is, perhaps, is the only way to assure our liberty.
Among other things, recognize the truth of Justice Brandeis' remarks about the best remedy for bad speech -- more speech.
The best solution is to apply common sense, IMHO.
At the point that a message has reached urban legends status, it should be fairly straightforward to obtain ISP compliance.
Otherwise, placing an ISP on notice of the falsehood of a message, and simultaneously addressing the most recent publisher of the defamatory posting can sometimes create legal rights where they did not exist before.
And yes, distribution of urban-legend stuff takes on a life of its own, but this particular type of republication doesn't seem (to me at least) to be likely to be republished by mere meme-replication, but rather by an intent to republish by someone.
It is one thing to publish a plea for wondrous things for a sick child, and understand why that e-mail makes the rounds. I'm not sure I see how it would happen in the present case absent someone's desire to see the bad news make the rounds without regard for its truth.
But, of course, none of this is legal advice. Sometimes, the best solution for bad speech is just to use proper fora to set the record straight. Otherwise, there is usually a solution short of litigation or the threat thereof -- if folks would just apply good common sense.
We should not be incredulous that the republication of unprotected speech should be actionable, or even that the posting of an -link to a web site would be deemed republication, so long as reasonable care is taken not to infringe First Amendment concerns. Nor can we assume that mere republication constitutes defamation in its own right. As is often the case in legal matters, the truth is rather more interesting.
In the U.S., the law concerning republication is complex, in part, because as noted by some other postings, the United States Constitution precludes the state from infringing the freedom of speech in many cases.
The cases seem to universally acknowledge the proposition that mere publication is not, by itself, enough. "Those who merely deliver or transmit defamatory material previously published by another will be considered to have published the material only if they knew, or had reason to know, that the material was false and defamatory." Barres v. Hold, Rinehart & Winston, 330 A.2d 38 (N.J. 1974); see also Restatement (Second) of Torts section 581.
There is a historically qualified privilege for carriers such as telegraph companies, unless the plaintiff establishes common-law (not constitutional) malice on the part of the defendant. And there is the Cubby case.
These general rules are further supported by Supreme Court case law setting forth the constitutional doctrine requiring "fault" as a minimum prerequisite for at least most liability for demfamation. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). There are also some criminal obscenity cases holding that a book store cannot be liable for contents of unreviewed books that they vend.
On top of all of that, there is also a "fair reporting" privilege for news reporting, because of first Amendment concerns. Repeating a defamatory statement is simply not actionable in public-figure or public-official cases unless the republisher knows the statement is false or is subjectively aware of the probable falsity (which almost never is the case). And in non-public figure cases, the plaintiff will still have difficulty demonstrating the requisite level of "fault" under applicable post-Gertz rules.
But like "fair use" in copyright, you can't win simply by calling "fair use! fair use!" Its a complex, difficult analysis that defies simple statements of bright-line rules and, is likely to vary from case to case on particular facts. The law is careful that its protection of the Constitutional right does not provide a Constitutional refuge or excuse to widely distribute a quietly published defamatory statement, but is also careful to protect the fourth estate and general first amendment principles.
For this reason, it is a serious mistake to focus on these cases merely on the technical questions of how a republication is accomplished. The liability will depend upon a host of highly fact-specific inquiries, and could likely go either way depending on those particular facts.
While it is not a popular thing for a lawyer to answer a question with "maybe," it would nevertheless be irresponsible to suggest that bright line rules govern this subtle and sticky question. I can envision circumstances where an URL-list (regardless of how distributed) can be unactionable mere bibliographic referencing of a document, and still others where it constitutes part of an intentional and willful plan to republish a defamation known to be false.
So, I wouldn't leap to conclusions -- the truth, as it often is for legal matters, is much more interesting. . .
You are conflating issues. A suggestive mark is as protectible as an abstract or coined mark. A merely descriptive or merely geographically descriptive term (even one that has been publicly used in denotative fashion) is protectible if it has obtained secondary meaning in the relevant marketplace.
On the other hand, even a coined or abstract mark can lose its distinctiveness and become legally unprotectable if it becomes generic. However, the standard for genericide is quite high, and there are few modern examples. To be invalid as generic, the mark needs to be far more than "a common descriptive term," it would need to be the *only* term for a given genus of services. While "open source" does suggest or describe certain properties of certain classes of software licensed, it is unclear that a court would deem the mark invalid as generic.
Trademarks are not like patents in the sense that "prior art," in the sense of use in a descriptive sense bars subsequent development of trademark rights. Rights to a trademark are obtained by use in commerce with respect to particular goods and services. While the first such user is entitled to priority in that mark if it is valid subject matter. Mere denotative use in a newgroup would not likely constitute a use in commerce.
While it is generally more difficult to obtain protection for a merely descriptive mark than, say, a suggestive, abstract or coined mark, the mere fact of some prior denotative usages in a newsgroup would not likely factor heavily in a trademark validity analysis.
These factors are somewhat further complicated by the fact that these folks are seeking registration of certification marks rather than trademarks, which although it uses generally similar principles to trademark law, is really a different critter than a trademark or collective mark. As is usually the case with legal matters, the truth is rather more interesting.
The poster is correct that, according to the USPTO database, the application for a federal registration of OPEN SOURCE as a certification mark of software licenses was abandoned for failure to respond to an office action. As Bruce points out, abandonment of an application is not an abandonment of a trademark or a certification mark.
The question of descriptiveness is, well, tricky. Without passing on whether the mark OPEN SOURCE is merely descriptive rather than suggestive as used for licensing services, I will note that even if it is merely descriptive, the mark could still be enforceable if it had obtained secondary meaning. These subtleties are often overlooked in thinking about trademark cases, but they would be at the crux of any legal dispute if one arose.
I would note that the "limited warranty" in most products that you refer to typically does not limit the warranties of merchantibility and fitness for purpose, which are what the shrink-wrap licenses disclaim.
Disagree. Such warranties, in my experience, are common and routine, and are hardly limited to shrink wrap licenses. Just looking around the house, I note that my stereo, VCR, DVD player, washing machine and a television set (just things for which I happened to have the documents in a drawer) all had the standard disclaimer.
Also, you keep coming back to the point that all warranties can be disclaimed under UCC2, as if this is somehow relevant. It isn't.
I understand why you would want to backpedal. The video tape proves otherwise: I wrote, criticizing the articles proposition the UCITA "allow[s] vendors to disclaim warrantees," stating that "vendors can presently disclaim warrantees." I wrote nothing else on this point.
You wrote, "I would take exception to several points here, in particular your statements about vendors disclaiming warranties."
I am pleased we no longer disagree that the article exaggerated.
As to your final question, it is simply this: 2B was a standalone provision, requiring that everything be spelled out. I agree that the statute was drafted to be more closely tuned, and to give greater clarity, to circumstances surrounding transactions involving shrink-wraps. I also agree that it is generally pro-licensor and has serious problems.
The point of my posting is that UCITA's critics are being disingenuous in their criticisms. The bill is a mixed bag, some good, some bad. The stupid polar bullshit from opponents and proponents has stood in the way of it being a very good bill.
As a lawyer practicing daily in this area, I lament the lack of CERTAINTY (whatever is the result) in these transactions. It would be wonderful if a great number of these ineffable fuzzy questions were resolved, and the prospect of a fairly balanced UCC2B could have been a great thing. Unfortunately, the radical views pushed and pulled at the thing until it became useless. Now we have UCITA, and I see the same demagoguery happening all over again.
Moreover, the exaggerations from many critical quarters has hurt "our" cause, permitting publishers to marginalize very credible critics as part of a group of knee-jerk opponents who only speak in half-truths.
This is a bad thing. We as a community need to do better. We need to insist on clear, truthful and complete accounts -- using solid advocacy of course -- rather than trying to justify after-the-fact these sound-byte half-truths so empty as to be misrepresentative in context.
Todd proves too much with his quote. For one thing, the word "obvious" does not appear there. As an aside, I didn't take issue with the use of "written," so that's a straw man.
There is substantial case law concerning the term "conspicuous," which does appear in the statute is satisified by an all-caps document. I noted all of this in the post to which he responded.
The assertion concerning payment and delivery is at odds with applicable case law which holds that when a box states that there is a shrinkwrap therein, the acceptance of an offer to sell does not take place until after the shrinkwrap is reviewed; provided there is a return option. ProCD v. Zeidenberg.
Todd to some extent misstates and largely overtstates what is the law. The use of after-payment-and-delivery limited warranties disclaiming fitness and merchantability, when a package recites the existence of a limited warranty, are common in the consumer electronics and home appliance businesses, and elsewhere in commerce. According to Todd, none of these documents have any meaningful effect, and years of litigation in which such provisions have been enforced are mistaken.
It's not that Todd is entirely wrong, however. There is another UCC issue, 2-217, the battle of the forms provision, which precludes adding terms to agreements under certain circumstances by the use of printed forms. In many cases, the exchange of paperwork resulting in conflicting terms or new material terms added afterwards *CAN* result in some terms (like arbitration clauses) being cut out of the deal. 217 cases are highly fact-specific, and shrink-wrap scenarios do involve substantial risk for the vendor who is not careful in preparing his packaging.
That, however is not the issue -- the original article suggested that UCITA is evil and radically different from the status quo because it permits warranties to be disclaimed. Such overstatements are dangerous and a discredit to those who would criticize UCITA. Todd ultimately admits that the article's point is a canard when he writes, "And yes, all warranties can be disclaimed under the UCC." Accordingly, it would appear that he should agree that the statement in the article, at least, is a wild overstatement of the problem.
On the other issues, I stand by my last posting, and suggest once more that on this point, Todd and I simply agree to disagree.
We'll just have to agree to disagree, then. There is no obligation of "obviousness." The requirement that certain warranty disclaimers must be conspicuous is trivially satisfied by a font change (or ALL CAPS), as everyone here is used to seeing the routine disclaimer language concerning fitness and merchantability. Further, all shrink wraps generally permit as a matter of course (particularly after Pro-CD v. Zeidenberg) the return of the product if the agreement is unsatisfactory. And, of course, after Pro-CD, there is substantial authority that the "time of contracting" arises when the agreement is reviewed, not when the tender of payment is made.
Finally, I note that nothing in Todd's posting contradicts the proposition that warranties can be disclaimed under the status quo. Indeed, UCC expressly permits the same to be disclaimed.
I am aware of no case holding that a UCC warranty disclaimer is ineffective because it was given in a shrinkwrap, but would be pleased to see one cited if this is so. Indeed, the 7th Circuit cases seem to militate to the contrary, but that is a subject for a different forum, I think.
One of the difficulties in working through all the hype on both sides, is that the shift from UCC2B to UCITA leaves us without a specific draft to criticize. Critics are free to exaggerate supposed defects, and of course, advocates can do the same. Anyway, before taking the article's word for it, look at the last drafts of UCC2B, ask yourself why critics aren't really citing its language, and consider well whether you are being completely and honestly informed by critics or advocates alike.
UCC2B is not all bad, and not all good, IMHO. However, some of the comments in the subject article strain credulity and, regrettably, much of it is demagoguery from various special interest groups trying to stir up dissent.
For example, shrinkwraps. Shrinkwraps are not the enemy of open source -- to the contrary, they are part of what makes the open source license "virus"es work. Some here have argued that this law can somehow have retroactive effect on already existing contracts and past reverse engineering -- Not so, indeed, a law that changed existing contract rights would be unconstitutional. In short, while I understand why the software defect plaintiff's lobby is all in a huff about greater certainty in enforcing shrinkwraps, I'm not sure that the OSS community shouldn't be planting itself squarely on the fence on the issue.
Some other points made in the article:
prevent the transfer of licenses from one party to another without vendor permission;
Of course, this can be (and often is) accomplished under the status quo with a commonly used contract provision. I actually prefer the common law default to the language of UCC2B, but I don't see this as either new or particularly egregious.
allow vendors to disclaim warrantees; and
Vendors can presently disclaim warrantees.
outlaw reverse engineering.
I believe you can review the last draft in vain to find a provision outlawing reverse engineering. Still further, it is doubtful that a state law could do so under present law without violating the Supremacy Clause of the Constitution. Indeed, the last draft of the UCC2B has an express example in the commentary expressly noting circumstances where unconsented reverse engineering is not a breach!
Why are they exaggerating if their case is so strong? Think about it. Its not.
I find great flaws in the UCC2B as do others. However, while flawed, it is not the unmitigated disaster it is held out to be by its critics (although it is certainly special interest legislation). As is often the case, the truth is more interesting.
I do believe slashdotters should educate themselves about this bill, study its provisions (the real ones, not the straw men) and judge for themselves what should be the law. But UCITA is not suprise legislation -- these proposals have been brewing now for years. Consider them carefully, and use what power you have, particularly now that it is no longer UCC, to help your legislators to separate the wheat from the chaff.
So, RTF Bill, read the commentary on both sides, and judge for yourselves.
Agreed. And don't forget that there are good lawyers who will do good works pro bono when the cause arises!
Another, perhaps more useful, way for the OSS community to attack idiots, is to begin pooling ideas and forming a pool of patents and other intellectual property to affirmatively assert as counterclaims in defense of mind-loss lawsuits.
In the "real world," the threat of a lawsuit is often met with a portfolio of IP in return. "Sure, sue me if you like, and you'll be embroiled in litigation as a defendant until HFO." Cross-licensing makes the lawyers go away, and that is the end of many marginal cases.
To the extent that OSS community *is* being creative, it would do well to begin securing protection for its inventions, if not to assert against third parties, at least to use as fodder for cross-licensing in defense of others. (The existence of a solid portfolio of technology can also effectively rebut the FUDdy allegation that OSS is primarily derivative work.)
Another idea, though this is far more controversial: A provision that nobody seemed to like in Apple's latest OSS license was the "sue me for IP if you like, but you lose your license to any Apple OSS" provision. Wouldn't it be nice for future corporations who sue Open Source providers to place at risk forever their right to use Linux? Perhaps a "sue-and-autolose" policy is overreaching and impractical, but how about a "sue the OSS if you think you can win, but if you lose, you lose all OSS rights forever" view?
It is one thing to say "being a kid is hell, so what?" It is another thing entirely to say that geek profiling can be justified or tolerated when applied by the state, for example school administrations.
While it does appear that I hold greater empathy than does the author for those geeks (regardless of gender and race) who are alienated in our schools, that issue is to me quite irrelevant in comparison with the real issue: People are being meaningfully discriminated against by the government just for being different; for dressing different; and for acting different.
I do not discuss the social treatment of these kids, I am discussing suspensions, counselling and worse (we had arrests in Tampa), merely because of geeky identity or an unwillingness to make superficial change to suit the officious passions of an asshole school bureaucrat.
This shouldn't happen anywhere, but it certainly shouldn't happen in America.
It is *this* discrimination I am concerned about, and for two reasons: (1) it is wrong; and (2) it won't help the "problem" the school administrators and politicians propose to address.
But more important, official discrimination is in many ways more invidious than de-facto segregation into social castes. Official government-sponsored "geek profiling" provides further justification in the minds of those who would stereotype the "different" students -- that's precisely the definition of profiling!
No longer necessary is resort to the innumerate illogic that because a pair of geeky, game-playing kids went postal, all geeky, game-playing kids are risks to society, and therefore all are fair game for ridicule and ostracism. Geek bigots no longer need to engage in vacuous demagoguery to justify or defend their cruel alienation of the "differents." They can now point to the law.
I should think that the Voice author who first raised the race and gender cards would be peculiarly sensitive to government-sponsored stereotyping.
But then again, perhaps that is why he chose to conflate these points in the first place, sweeping everything under the rubric of "white boys unjustly playing identity politics?" If so, I wonder whose cynicism is the worst, the supposed white-boy-victim-wannabes' or the author's?
Slashdot Mirror
"spread so more people could see it."
Are you kidding? TPM is one of the most-seen films in the history of the world! Indeed, probably among the most-seen works of authorship of all-time. Still further, I doubt you can get to more than a few digits by counting the number of people who would be capable of obtaining an internet copy who have not already seen it at least once in a theatre.
Exposure to his art is not George Lucas' problem. He has that problem licked, and it is not at all apparent to me that any free distribution would accomplish as much or more widespread interest than his proprietary closed model. It would appear that the IP/market regime is doing just fine in terms of satisfying his concerns for his art so far as distribution is concerned.
Make no mistake, this art costs money to make. But for the astronomical revenues the work can produce, it would not have been produced.
Yes, I sympathize with Jon's concern that noone should be setting silly rules concerning what we can see and what we should see. He made that case well, and enough has been said on that point. The anecdote of his effort to salvage a working mother's "theatre as babysitting" plan was amusing and I honor his chivalric efforts on her behalf.
On the other hand, this "call to arms" trivializes real and meaningful civil liberties issues, and worse, risks alienating virtually every moderate who had not already arrived at a position on the issue. On the scale of importance, this issue is *NOT CLOSE* to the CDA, Export Restrictions, Filter-Fads and other real and meaningful horrors of the Censorship Cabal.
Calling for criminal activity as a form of "protest," particularly in this commercial context where mere "voting with your pocketbook," is louder than any amount of lobbying is both irresponsible and counterproductive. Worse, some of the conduct advocated (helping minors to see movies without their parent's permissions) is dangerous, corrupt and irresponsible. Others have already written about the errors of these ways, so I shall not repeat those arguments here.
What I did want to add is my thought that such conduct eventually cedes the moral high ground to the censors, and fuels their position. The thrust of the pro-CDA movement is the, compelling to some, argument that we need to protect our children from the "bad stuff," whatever that might be. People are genuinely concerned for their kids' well-being, terrified that they are impotent to stop the dangers and are fed the idea that merely voting for censorship will make their children safe. This is a very effective sell to the masses, and should not be underestimated by those of us who know better.
Imagine the PR that would issue as anti-censorship folks become identified with conduct that is (or is perilously close to) a form of kidnapping. Far worse can happen to the movement should some lunatic pedophile ever do harm to a child after taking him or her to some risque film in the "name of liberty."
My point is that calls for illegal or fringe conduct in response to a purely commercial endeavor is not only a bad idea, but that it is futile and counterproductive. Ultimately, such actions play into the hands of those who advocated the foolish rules with respect to which you are protesting.
Mr. Katz advocates conduct here that is petulant, puerile and foolish. While the conduct he decries is likewise silly, nothing good will come from following his program. To the contrary, it is far more likely than not to lead to even sillier rules and restrictions from the powers-that-be.
To the extent we facilitate anonymous use of tokens that permit me to vote, whether in terms of crypto keys, smart cards or other information not uniquely associated with my body, we facilitate the ready transfer of that token to others. And with that we facilitate the sale of those tokens.
What is to keep the Green party from simply collecting Floppy disks bearing the voters key informtion, paying $5 to $50 per vote for the data?
Requiring physical attendance at the polls protects more than the individual who is voting -- it protects the integrity of the system from outside manipulation. We need to deprive voters from being able to prove how they voted, not for the benefit of that voter, but so to protect the SYSTEM from abuse by unworthy voters and vote-buyers.
I do not see how that can be avoided with existing encryption protocols of which I am aware.
The enforceability of shrink-wrap or non-wrap license agreements certainly remains, at least, an open question. While at least one Circuit Court (the Seventh) has found them to be enforceable, several others have not enforced shrink-wrap provisions for various reasons. Recent District Court cases in other Circuits have characterized the Seventh Circuit position as "the minority view."
In short, I respectfully dissent from the second sentence of the message to which I respond.
I note, with interest, that recent efforts to add a new article 2 to the UCC were directed to precisely this question, which would tend to support OSS non-wrap licenses. It is ironic that these proposals were largely rebuffed without much analysis by the open source community, precisely because the proposals were also supported by IP holders.
It is important to recall that, at least, the Stallman view --which eschews the notion of public domain free software in favor of GNU-like licenses-- depends upon the enforceability of Copyrights and related license agreements.
In my legal practice, I am more and more frequently asked by clients (one or more a month now) to review ALL licenses of incorporated or embedded open source code and to advise or opine as to the specific obligations arising from the mix of software and the manner in which it the software is mixed with putatively proprietary code.
Unsurprisingly, clients' first question is whether (and if so, how much and how) code must be distributed in open source or at least offered for distribution. They are often surprised that there may be serious questions whether the software can be distbuted at all!
As it turns out, these questions are rarely easy ones to answer, even after assuming that the agreements are all fully enforceable. On the other hand, the failure to perform such an analysis can lead to substantial downsides such as the suggested example.
Fair enough. But it is important to distinguish between statements of the form "X patent is invalid" and "X patent should be invalid." Anything else is just kiddding yourself.
It has been suggested in various postings that the validity of software process patents, in themselves, is still in question. Indeed, nothing could be further from the truth. After recent Federal Circuit cases, the validity of software inventions as patentable subject matter is no longer even an interesting legal question. The only remaining issue is whether the invention is indeed new and unobvious. For better or worse, the floodgates have been opened.
Since the 1983 Supreme Court case in Diamond v. Diehr (and in practice well before then), software patents have been issued. After recent cases in the Federal Circuit, there no longer remains any doubt from a legal perspective whether this is the case.
One case in particular, AT&T v. Excel Communications, Inc. articulates rather well and unequivocally the Federal Circuit's view on this matter. I highly recommend this case to anyone who would like to consider themselves well-educated on this subject.
The long and short of it is this:
"The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to 'include anything under the sun that is made by man.'"
It is now clear, for better or for worse, that any claim directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result'" is patentable under 35 U.S.C. section 101, provided, of course, that the claim is also directed to an invention that is new, useful and unobvious.
Neither of the Apple/Microsoft cases "proved" the point for which they were cited here.
The Apple v. MS case involving Windows addressed a claim for copyright infringement in view of a license agreement. This had nothing to do with any patents.
Apple's patent case against Microsoft (also unrelated to this question) was settled when Steve Jobs rejoined Apple in a cash-for-stock switch.
This would not be the case unless they obtain preliminary injunctive relief. Absent an injunction, defendants are free to continue as they choose, albeit perhaps subject to potentially increased liability for willful infringement in some cases.
This is not to say that I anticipate that plaintiff would not prevail upon seeking preliminary injunctive relief, but its never a lock -- preliminary injunctive relief is an extrarordinary remedy precisely for the reasons anticipated in the note to which I am responding.
And if would have no clue how to get things like this, how would average Joe ever get clueful?
If you want to defeat "censorship," you need to be able to publish widely, not covertly. If you can't do so without fear of criminal responsibility or civil liability -- or if Joe is going to have to look over his shoulder to assure not being arrested for criminal activities of obtaining a copy, you simply aren't playing the "power to the people" game, but are merely entertaining friends and relations.
Jon seems to overestimate the bootlegger's abilities to distribute copies beyond the Internet's "inner cliques." An average user is not likely to be armed with more than a report, a pointer to recently-killed links and the URLS of some portal search engines.
Those search engines don't reveal very much. Some straightforward queries at Altavista and Googol disclosed at most three relevant sites, each of which had already been "lawyered."
My experience is that the same seems to be true of the supposed "rampant" distribution of bootleg copies of the Phantom Menace.
I admit I didn't try very hard -- perhaps half an hour or so. Perhaps a few die-hard fans might be willing to work harder to find their copies, but few will find it worth the effort. But if it isn't trivial for me to find it, then it won't be easy at all for everyday Joe to get a copy, and then censorship hasn't been effectively combatted at all.
Indeed, there will always be a subculture distributing bootlegs -- the only problem is to contain it so the subculture is commercially unimportant. It is not clear to me that the Internet has made the bootleg culture substantially more of a threat, particularly in view of recent laws.
Indeed, since DMCA provides recourse through the ISP's, who own meat and metal and often have a stream of commercial contacts with the USA, it is actually fairly easy for a lawyer to shut down many or most piracy shops. I suspect real censorship (where it is legal) can operate the same way.
That, together with the fact that the activity is itself illegal, suggests that maybe Jon was too quick to suggest that the Internet is the great equalizer.
Apparently not everyone on the creative side is in opposition to the conduct. Cinescape Online reports Buffy Creator Joss Weedon saying,
"OK, I'm having a Grateful Dead moment here, but I'm saying, 'Bootleg the puppy.'"
. . . it just changes its shape.
We in the United States, who are largely protected by the Courts and agressive litigation strategies of groups such as the ACLU, have grown complacent over time about censorship. We have grown to believe that the "bad guys," regardless of who they are and what they stand for will never be able to shield us from the light because of the almighty Bill of Rights.
Not so, Joe. And the liberating power of the Internet is not necessarily all good. It is, indeed, a vast wasteland and small voices can be truly and completely lost in that vastness. Moreover, the attractiveness of private censorship in the form of momma-ware and other filtering technologies invites willful or accidental blindness to content that can be controlled without the benefit of a government. In this sense, censorship is simply moving from use of government to another form, which should probably be the topic of another thread.
Yet another way in which censorship is effected today is by abusing the marketplace of ideas another way -- filling it with counter-content. Spamming is a tremendously effective way to bury opposing content, and when well-executed, is not always easy to counter. Sometimes the marketplace of ideas requires antitrust legislation.
Others have written about this particular circumstance of the Buffy affair not being a censorship issue. I will not pass on the point (though I share this view) but instead will assume that Jon is correct that somehow Warner is "censoring" content from the public. This kind of censorship, keeping secrets, is indeed much more difficult than once it was.
But this isn't the kind of censorship that is most dangerous and troublesome -- the keeping of content from the masses, which content is highly popular and popularized. When the majority wants to hear something, censorship has always been totally ineffective, even before we had the internet. Popular voices don't require first amendment protection, its the unpopular ones that are hard to save.
It is mostly when the majority wants content to be buried that civil liberty is really at risk.
This is why the casebooks are filled with overturning of laws dealing with Nazis marching in Skokie, "F*ck the Draft" jackets and Flag Burning -- It is the unpopular views that require protection.
It is the tiny voices, highly disapproved of by the marjority, who need protection. And without the clamour of a large and powerful activist community, those voices remain tiny, buried in the vast wasteland of the internet. As effectively censored as if government had squashed each publisher with a tank.
In many respects, I think, censorship has far more options on the internet than elsewhere. Even if you disagree with this point, consider at least whether it is dangerously arrogant to complacently presume that censorship has become impractical. Maintaining vigilant awareness to censorship in all forms is, perhaps, is the only way to assure our liberty.
. . . there's always the upcoming Yoda (R) Furby (R).
Among other things, recognize the truth of Justice Brandeis' remarks about the best remedy for bad speech -- more speech.
The best solution is to apply common sense, IMHO.
At the point that a message has reached urban legends status, it should be fairly straightforward to obtain ISP compliance.
Otherwise, placing an ISP on notice of the falsehood of a message, and simultaneously addressing the most recent publisher of the defamatory posting can sometimes create legal rights where they did not exist before.
And yes, distribution of urban-legend stuff takes on a life of its own, but this particular type of republication doesn't seem (to me at least) to be likely to be republished by mere meme-replication, but rather by an intent to republish by someone.
It is one thing to publish a plea for wondrous things for a sick child, and understand why that e-mail makes the rounds. I'm not sure I see how it would happen in the present case absent someone's desire to see the bad news make the rounds without regard for its truth.
But, of course, none of this is legal advice. Sometimes, the best solution for bad speech is just to use proper fora to set the record straight. Otherwise, there is usually a solution short of litigation or the threat thereof -- if folks would just apply good common sense.
We should not be incredulous that the republication of unprotected speech should be actionable, or even that the posting of an -link to a web site would be deemed republication, so long as reasonable care is taken not to infringe First Amendment concerns. Nor can we assume that mere republication constitutes defamation in its own right. As is often the case in legal matters, the truth is rather more interesting.
In the U.S., the law concerning republication is complex, in part, because as noted by some other postings, the United States Constitution precludes the state from infringing the freedom of speech in many cases.
The cases seem to universally acknowledge the proposition that mere publication is not, by itself, enough. "Those who merely deliver or transmit defamatory material previously published by another will be considered to have published the material only if they knew, or had reason to know, that the material was false and defamatory." Barres v. Hold, Rinehart & Winston, 330 A.2d 38 (N.J. 1974); see also Restatement (Second) of Torts section 581.
There is a historically qualified privilege for carriers such as telegraph companies, unless the plaintiff establishes common-law (not constitutional) malice on the part of the defendant. And there is the Cubby case.
These general rules are further supported by Supreme Court case law setting forth the constitutional doctrine requiring "fault" as a minimum prerequisite for at least most liability for demfamation. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). There are also some criminal obscenity cases holding that a book store cannot be liable for contents of unreviewed books that they vend.
On top of all of that, there is also a "fair reporting" privilege for news reporting, because of first Amendment concerns. Repeating a defamatory statement is simply not actionable in public-figure or public-official cases unless the republisher knows the statement is false or is subjectively aware of the probable falsity (which almost never is the case). And in non-public figure cases, the plaintiff will still have difficulty demonstrating the requisite level of "fault" under applicable post-Gertz rules.
But like "fair use" in copyright, you can't win simply by calling "fair use! fair use!" Its a complex, difficult analysis that defies simple statements of bright-line rules and, is likely to vary from case to case on particular facts. The law is careful that its protection of the Constitutional right does not provide a Constitutional refuge or excuse to widely distribute a quietly published defamatory statement, but is also careful to protect the fourth estate and general first amendment principles.
For this reason, it is a serious mistake to focus on these cases merely on the technical questions of how a republication is accomplished. The liability will depend upon a host of highly fact-specific inquiries, and could likely go either way depending on those particular facts.
While it is not a popular thing for a lawyer to answer a question with "maybe," it would nevertheless be irresponsible to suggest that bright line rules govern this subtle and sticky question. I can envision circumstances where an URL-list (regardless of how distributed) can be unactionable mere bibliographic referencing of a document, and still others where it constitutes part of an intentional and willful plan to republish a defamation known to be false.
So, I wouldn't leap to conclusions -- the truth, as it often is for legal matters, is much more interesting. . .
You are conflating issues. A suggestive mark is as protectible as an abstract or coined mark. A merely descriptive or merely geographically descriptive term (even one that has been publicly used in denotative fashion) is protectible if it has obtained secondary meaning in the relevant marketplace.
On the other hand, even a coined or abstract mark can lose its distinctiveness and become legally unprotectable if it becomes generic. However, the standard for genericide is quite high, and there are few modern examples. To be invalid as generic, the mark needs to be far more than "a common descriptive term," it would need to be the *only* term for a given genus of services. While "open source" does suggest or describe certain properties of certain classes of software licensed, it is unclear that a court would deem the mark invalid as generic.
Trademarks are not like patents in the sense that "prior art," in the sense of use in a descriptive sense bars subsequent development of trademark rights. Rights to a trademark are obtained by use in commerce with respect to particular goods and services. While the first such user is entitled to priority in that mark if it is valid subject matter. Mere denotative use in a newgroup would not likely constitute a use in commerce.
While it is generally more difficult to obtain protection for a merely descriptive mark than, say, a suggestive, abstract or coined mark, the mere fact of some prior denotative usages in a newsgroup would not likely factor heavily in a trademark validity analysis.
These factors are somewhat further complicated by the fact that these folks are seeking registration of certification marks rather than trademarks, which although it uses generally similar principles to trademark law, is really a different critter than a trademark or collective mark. As is usually the case with legal matters, the truth is rather more interesting.
The poster is correct that, according to the USPTO database, the application for a federal registration of OPEN SOURCE as a certification mark of software licenses was abandoned for failure to respond to an office action. As Bruce points out, abandonment of an application is not an abandonment of a trademark or a certification mark.
The question of descriptiveness is, well, tricky. Without passing on whether the mark OPEN SOURCE is merely descriptive rather than suggestive as used for licensing services, I will note that even if it is merely descriptive, the mark could still be enforceable if it had obtained secondary meaning. These subtleties are often overlooked in thinking about trademark cases, but they would be at the crux of any legal dispute if one arose.
I would note that the "limited warranty" in most products that you refer to typically does not limit the warranties of merchantibility and fitness for purpose, which are what the shrink-wrap licenses disclaim.
Disagree. Such warranties, in my experience, are common and routine, and are hardly limited to shrink wrap licenses. Just looking around the house, I note that my stereo, VCR, DVD player, washing machine and a television set (just things for which I happened to have the documents in a drawer) all had the standard disclaimer.
Also, you keep coming back to the point that all warranties can be disclaimed under UCC2, as if this is somehow relevant. It isn't.
I understand why you would want to backpedal. The video tape proves otherwise: I wrote, criticizing the articles proposition the UCITA "allow[s] vendors to disclaim warrantees," stating that "vendors can presently disclaim warrantees." I wrote nothing else on this point.
You wrote, "I would take exception to several points here, in particular your statements about vendors disclaiming warranties."
I am pleased we no longer disagree that the article exaggerated.
As to your final question, it is simply this: 2B was a standalone provision, requiring that everything be spelled out. I agree that the statute was drafted to be more closely tuned, and to give greater clarity, to circumstances surrounding transactions involving shrink-wraps. I also agree that it is generally pro-licensor and has serious problems.
The point of my posting is that UCITA's critics are being disingenuous in their criticisms. The bill is a mixed bag, some good, some bad. The stupid polar bullshit from opponents and proponents has stood in the way of it being a very good bill.
As a lawyer practicing daily in this area, I lament the lack of CERTAINTY (whatever is the result) in these transactions. It would be wonderful if a great number of these ineffable fuzzy questions were resolved, and the prospect of a fairly balanced UCC2B could have been a great thing. Unfortunately, the radical views pushed and pulled at the thing until it became useless. Now we have UCITA, and I see the same demagoguery happening all over again.
Moreover, the exaggerations from many critical quarters has hurt "our" cause, permitting publishers to marginalize very credible critics as part of a group of knee-jerk opponents who only speak in half-truths.
This is a bad thing. We as a community need to do better. We need to insist on clear, truthful and complete accounts -- using solid advocacy of course -- rather than trying to justify after-the-fact these sound-byte half-truths so empty as to be misrepresentative in context.
Todd proves too much with his quote. For one thing, the word "obvious" does not appear there. As an aside, I didn't take issue with the use of "written," so that's a straw man.
There is substantial case law concerning the term "conspicuous," which does appear in the statute is satisified by an all-caps document. I noted all of this in the post to which he responded.
The assertion concerning payment and delivery is at odds with applicable case law which holds that when a box states that there is a shrinkwrap therein, the acceptance of an offer to sell does not take place until after the shrinkwrap is reviewed; provided there is a return option. ProCD v. Zeidenberg.
Todd to some extent misstates and largely overtstates what is the law. The use of after-payment-and-delivery limited warranties disclaiming fitness and merchantability, when a package recites the existence of a limited warranty, are common in the consumer electronics and home appliance businesses, and elsewhere in commerce. According to Todd, none of these documents have any meaningful effect, and years of litigation in which such provisions have been enforced are mistaken.
It's not that Todd is entirely wrong, however. There is another UCC issue, 2-217, the battle of the forms provision, which precludes adding terms to agreements under certain circumstances by the use of printed forms. In many cases, the exchange of paperwork resulting in conflicting terms or new material terms added afterwards *CAN* result in some terms (like arbitration clauses) being cut out of the deal. 217 cases are highly fact-specific, and shrink-wrap scenarios do involve substantial risk for the vendor who is not careful in preparing his packaging.
That, however is not the issue -- the original article suggested that UCITA is evil and radically different from the status quo because it permits warranties to be disclaimed. Such overstatements are dangerous and a discredit to those who would criticize UCITA. Todd ultimately admits that the article's point is a canard when he writes, "And yes, all warranties can be disclaimed under the UCC." Accordingly, it would appear that he should agree that the statement in the article, at least, is a wild overstatement of the problem.
On the other issues, I stand by my last posting, and suggest once more that on this point, Todd and I simply agree to disagree.
We'll just have to agree to disagree, then. There is no obligation of "obviousness." The requirement that certain warranty disclaimers must be conspicuous is trivially satisfied by a font change (or ALL CAPS), as everyone here is used to seeing the routine disclaimer language concerning fitness and merchantability. Further, all shrink wraps generally permit as a matter of course (particularly after Pro-CD v. Zeidenberg) the return of the product if the agreement is unsatisfactory. And, of course, after Pro-CD, there is substantial authority that the "time of contracting" arises when the agreement is reviewed, not when the tender of payment is made.
Finally, I note that nothing in Todd's posting contradicts the proposition that warranties can be disclaimed under the status quo. Indeed, UCC expressly permits the same to be disclaimed.
I am aware of no case holding that a UCC warranty disclaimer is ineffective because it was given in a shrinkwrap, but would be pleased to see one cited if this is so. Indeed, the 7th Circuit cases seem to militate to the contrary, but that is a subject for a different forum, I think.
One of the difficulties in working through all the hype on both sides, is that the shift from UCC2B to UCITA leaves us without a specific draft to criticize. Critics are free to exaggerate supposed defects, and of course, advocates can do the same. Anyway, before taking the article's word for it, look at the last drafts of UCC2B, ask yourself why critics aren't really citing its language, and consider well whether you are being completely and honestly informed by critics or advocates alike.
UCC2B is not all bad, and not all good, IMHO. However, some of the comments in the subject article strain credulity and, regrettably, much of it is demagoguery from various special interest groups trying to stir up dissent.
For example, shrinkwraps. Shrinkwraps are not the enemy of open source -- to the contrary, they are part of what makes the open source license "virus"es work. Some here have argued that this law can somehow have retroactive effect on already existing contracts and past reverse engineering -- Not so, indeed, a law that changed existing contract rights would be unconstitutional. In short, while I understand why the software defect plaintiff's lobby is all in a huff about greater certainty in enforcing shrinkwraps, I'm not sure that the OSS community shouldn't be planting itself squarely on the fence on the issue.
Some other points made in the article:
prevent the transfer of licenses from one party to another without vendor permission;
Of course, this can be (and often is) accomplished under the status quo with a commonly used contract provision. I actually prefer the common law default to the language of UCC2B, but I don't see this as either new or particularly egregious.
allow vendors to disclaim warrantees; and
Vendors can presently disclaim warrantees.
outlaw reverse engineering.
I believe you can review the last draft in vain to find a provision outlawing reverse engineering. Still further, it is doubtful that a state law could do so under present law without violating the Supremacy Clause of the Constitution. Indeed, the last draft of the UCC2B has an express example in the commentary expressly noting circumstances where unconsented reverse engineering is not a breach!
Why are they exaggerating if their case is so strong? Think about it. Its not.
I find great flaws in the UCC2B as do others. However, while flawed, it is not the unmitigated disaster it is held out to be by its critics (although it is certainly special interest legislation). As is often the case, the truth is more interesting.
I do believe slashdotters should educate themselves about this bill, study its provisions (the real ones, not the straw men) and judge for themselves what should be the law. But UCITA is not suprise legislation -- these proposals have been brewing now for years. Consider them carefully, and use what power you have, particularly now that it is no longer UCC, to help your legislators to separate the wheat from the chaff.
So, RTF Bill, read the commentary on both sides, and judge for yourselves.
Agreed. And don't forget that there are good lawyers who will do good works pro bono when the cause arises!
Another, perhaps more useful, way for the OSS community to attack idiots, is to begin pooling ideas and forming a pool of patents and other intellectual property to affirmatively assert as counterclaims in defense of mind-loss lawsuits.
In the "real world," the threat of a lawsuit is often met with a portfolio of IP in return. "Sure, sue me if you like, and you'll be embroiled in litigation as a defendant until HFO." Cross-licensing makes the lawyers go away, and that is the end of many marginal cases.
To the extent that OSS community *is* being creative, it would do well to begin securing protection for its inventions, if not to assert against third parties, at least to use as fodder for cross-licensing in defense of others. (The existence of a solid portfolio of technology can also effectively rebut the FUDdy allegation that OSS is primarily derivative work.)
Another idea, though this is far more controversial: A provision that nobody seemed to like in Apple's latest OSS license was the "sue me for IP if you like, but you lose your license to any Apple OSS" provision. Wouldn't it be nice for future corporations who sue Open Source providers to place at risk forever their right to use Linux? Perhaps a "sue-and-autolose" policy is overreaching and impractical, but how about a "sue the OSS if you think you can win, but if you lose, you lose all OSS rights forever" view?
It is one thing to say "being a kid is hell, so what?" It is another thing entirely to say that geek profiling can be justified or tolerated when applied by the state, for example school administrations.
While it does appear that I hold greater empathy than does the author for those geeks (regardless of gender and race) who are alienated in our schools, that issue is to me quite irrelevant in comparison with the real issue: People are being meaningfully discriminated against by the government just for being different; for dressing different; and for acting different.
I do not discuss the social treatment of these kids, I am discussing suspensions, counselling and worse (we had arrests in Tampa), merely because of geeky identity or an unwillingness to make superficial change to suit the officious passions of an asshole school bureaucrat.
This shouldn't happen anywhere, but it certainly shouldn't happen in America.
It is *this* discrimination I am concerned about, and for two reasons: (1) it is wrong; and (2) it won't help the "problem" the school administrators and politicians propose to address.
But more important, official discrimination is in many ways more invidious than de-facto segregation into social castes. Official government-sponsored "geek profiling" provides further justification in the minds of those who would stereotype the "different" students -- that's precisely the definition of profiling!
No longer necessary is resort to the innumerate illogic that because a pair of geeky, game-playing kids went postal, all geeky, game-playing kids are risks to society, and therefore all are fair game for ridicule and ostracism. Geek bigots no longer need to engage in vacuous demagoguery to justify or defend their cruel alienation of the "differents." They can now point to the law.
I should think that the Voice author who first raised the race and gender cards would be peculiarly sensitive to government-sponsored stereotyping.
But then again, perhaps that is why he chose to conflate these points in the first place, sweeping everything under the rubric of "white boys unjustly playing identity politics?" If so, I wonder whose cynicism is the worst, the supposed white-boy-victim-wannabes' or the author's?