The court expressly noted emphasized that its rulings and reasoning were only "tentative." Oral argument is set for June 24, 1999, and in each ruling, counsel was invited once more to try to change the Court's mind.
It is significant to note that the summary judgment of copyright infringement for Sun is not an insignificant blow to Microsoft, since it opens the door to an award of damages, but mostly since it may well result in an award to Sun of reasonable attorney fees and costs, which for this case will be substantial.
Moreover, the Court has shown what appears to be greater tentativeness in some of these rulings than in others, in each case asking specific questions for the lawyers to address during oral argument. Compare the Court's question on the "reverse-engineering" issues:
"Does a Runtime Interpreter, which does not incorporate Sun's intellectual property, but nevertheless "emulates" a Java Runtime Interpreter, constitute a "Product" under the [license agreement.]"
which indicates that the Court is still considering whether the license agreement would still require a "clean-room" Microsoft interpreter to pass the Sun tests, with the almost sardonic, almost rhetorical, questions on the tentative ruling granting Sun's motion for Summary Judgment of copyright infringement:
"1. Is it Microsoft's contention that someone could take the source code to Windows98, run it through a different compiler, distribute the resulting object code and not be liable for copyright infringement for such distribution?
"2. Is it Microsoft's contention that object code is not substantially similar to source code?"
Also, don't overlook the off-hand remark in Question 4 of the questions at the end of the "Right to Engage in Independent Development" opinion, where the court expressly noted by reference to Sun's patents that "In light of the above, it does not appear that Microsoft's [unlicensed] independent development rights relating to the Java Technology would be very broad."
While I agree with the commentary that the Court has done good for all (including, Microsoft) by suggesting that one doesn't need a license to perform a clean room, the Court did do Microsoft some harm yesterday, and might not have given Microsoft as much room as has been supposed to go forward in the Java arena.
Also, as noted by others, Trademark law may have an awful lot to say with how Microsoft will be able to characterize any independently developed product.
I think for reasons similar to the reason that Darth Vader was quite surprised and interested when Obi-Wan did. Anakin doesn't disappear either when he dies, and he kills the emperor!
Perhaps the disappearing requires a certain purity and non-compromise. Qui-Gon was a renegade who frequently skirted the code, Anakin, of course, is the tragic hero who falls to the dark side before committing the ultimate good (by killing Sidious). Maybe such flaws are sufficient to keep one out of Jedi heaven.
Nasty mythology if that's the case -- all your survivors get to know if you "made it."
From my perspective, it suffices to have extraterritorial reach to someone sending a spam message *TO ME*.
Whether this is so will depend in large part upon the nature of the particular spamming conduct. However, where there is a commercial solicitation included in the spam, where the spam is sent from overseas on behalf of someone in the US, or the like, I can usually slam-dunk anyone, legally speaking, who is merely trying to use out-of-US point-of-origin as a vehicle to avoid the act.
In practice, its not so hard. Ordinary discovery via ex parte seizure can do it, but also egregious conduct is typically caught at the ISP level, who has plural copies readily available.
My point is that the vast amount of e-mail, including listServ transmissions (note the definition) fits the 10 version. And of those who you might accidentally lie (tho' a smart e-mail program will fix when there are a buncha' cc's), most of your spamees won't mind as a matter of course.
Thus, there is virtually no burden on users, and substantial risks to the violating spamee if caught. If the disincentives are steep enough (statutory damages, criminal penalties), we have won already, simply by making it irrational to spam AND lie unless you are CERTAIN its untraceable.
The bill is nice, so far as it goes, but it still gives each mail account at least one free bite at the apple -- one spam with an "honest" routing message, before it gets killfiled. This means that the cost of spamming is only the cost of setting up a new account for each new broadcast, which is, as we know, bupkis.
The way to stop spam is to stop the spammer's incentive to spam. The problem with spam is simply a matter of economics -- the spammer has no reason not to spam, and substantial incentive to spam.
On the other hand, when asking the question: "what is spam?," it is hard to find a definition that doesn't adequately characterize spamming in a manner that enforces unwanted speech upon the spammer, making it constitutionally suspect. (Indeed, many of the pro-spam in anti-spam-sheep's-clothing apologized for the weak teeth version by claiming more would be unconstitutional)
But there is a better way . . . and its the internet way!
Instead of forcing certain language upon spammers based on their content (commercial, uncommercial, warranted, unwarranted, etc. ..), let's simply regulate affirmatively false speech. (False speech is not constitutionally protected).
Assume that I added to each e-mail message, the following:
"This message (and messages equivalent) have not been sent to more than 10 different e-mail addresses within the past week, except for e-mail addresses of persons who subscribed for receipt of bulk mails."
And assume, since we are smart, that this is done more efficiently with a standardized message in the header:
> X-DIST 10
or the like. Now, we do not require that anyone includes this message in their header -- everyone is free to use it or not use it as they wish.
However, we ban, bar, provide hefty penalties for, criminalize, or whatever, the falsifying of this header. (Indeed, Goodlatte's bill might already catch this, since it does bar false header information -- but the way the law works, I'd want this to be clear before asserting it against anyone).
Better yet, standardize the header and its meaning with an RFC, get on the stick with e-mail programs to routinely generate them, and in a generation or two of e-mail revisions, EVERY LEGIT MAIL HAS THE HEADER, and EVERY LEGIT SPAM HAS THE HEADER, but with a number bigger than 100, or no header at all.
Now we can filter spam easily, and anyone who sneaks by the filter is violating the law. This is the desired effect. IF the anti-spam desires of the people are sufficiently great, the convention will be adopted, and spam is dealt with without the first amendment being trodden upon. If otherwise, the bill does no harm.
This will require some work by the technical community, but not much. And if Goodlatte amends to capture fraudulent header information related to manner of distribution, we won't need any further help from the legislature to give it teeth, at least in intro-US of A communications.
Doggieh hits it on the nose. Feist pretty much slams the possibility for protecting any databse whose structure and organization is essentially determined by function. This is not true for any database, however -- many databases can be protected (and have been protected) by courts since Feist.
On the other hand, NSI will have substantial difficulty distinguishing its database from the white pages in Feist, given the essential function and operation of whois.
BUT BEWARE! The lawyers in Feist have not lost their mind. They may not have an advantage under today's law, but the law may be about to change:
Legislation to give what we lawyers call sui generis (read "special treatment") protection for databases is presently pending before the Congress as we speak. It was a part of last year's Digital Millenium Copyright Act, but (thank g-d) was pulled at the last minute.
Even worse, the definition of "collection of information" was so broad in last year's bill, and the elimination of a traditional "fair use" exception, threatened to make this sui generis bill swallow the few saving graces left in Copyright law.
But like all pieces of special interest legislation -- and the database bill is no different -- It's BAAACK! While the present legislation is far superior to last year's, in that it does have a fair-use-like exception built in, it is all the more dangerous because of its acceptability therefor. Congress may well pass the bill in this form this term or next, unless folks quickly mobilize against it.
What's wrong with HR354? Well, the whois database is an excellent example. After the database legislation passes, NSI might well succeed in making its claims stick.
After the movie industry did its ever loving best to shut down the Betamax machine, taking the case all the way to the Supreme Court, no less, what happened?
Losers, losers, losers.
The Supreme Court made clear than unless Sony was actually inducing people to pirate videotapes, there could be liability only if the apparatus had no lawful noninfringing use. Since the Court found that using a VCR for time-shifting of broadcast television would constitute fair use, this meant that a customer COULD be making lawful use of the VCR, and hence there was no liability.
[Deep irony, of course, is that SONY couldn't manage to persuade the world to accept a seriously closed format, even though the alternative was technically inferior in many respects. At the end of the day, SONY owned 100% of nothing, and litigated the film industry into what was probably the most profitable legal result for a loser in history.]
It seems apparent that opportunities for non-infringing use of MP3 format abound.
Accordingly, what matter of this supposed "willing[ness] to fight for [RIAA's] interests in the courts[?] It has the money and the muscle to try to convince technology companies and Internet music vendors to see things its way."
How? Sue who? For what? In the face of blatant Supreme Court authority? Fine. Time will put that threat to bed, although someone will have to suffer for awhile, with a probable award of attorney fees at the end of the day for a prevailing defendant.
Boycotting the format? Well, for that to work, they'll have to accomplish what even OPEC could not -- a boycott on a prodigious format means ceding a potent market, and hence, as soon as one company decides to make a buck that way, it will take balls of steel but a mind of mush to ignore it. Record industry is no longer a lock -- alternative labels do and can "make it." Can RIAA's boycot?
RIAA may be a formidable force. However, a free market is a far more formidable force. The natural and inexorable flow of capital flows harder and more forcefully than any dinosaur trying to protect a dying turf. Witness: OPEC.
At the end of the day, RIAA's best hope is to find a magical alternative format that people will *WANT* to use. Anything less will not be enough. Any other strategy is losing.
I am truly sorry if the response was painful. I hope that you found it at least interesting.
It is difficult, if not impossible, to respond meaningfully to the general hypotheticals you gave without more detail. Suffice it to say that I have defended against patents that I found to be overbroad and invalid, winning some and losing some. I have also had to defend some patents that issued because of less than vigilant defense of the system by the examiner. No system is perfect, but ours works pretty well, IMHO.
As to the benefit in your case -- Conopco hired you to do the research. It paid for your salary. If it couldn't own, to some extent, the fruits of that work, it might not have hired you at all, or might have paid much less -- finding the better business decision to be to let the other guy hire you and benefit by free-riding. (Problem is, the other guy is thinking the same thing).
Perhaps Stanford is better able to provide you with the facilities you provide because of the revenues it derived from licensing?
I do think, however, that the scope of patents you describe is somewhat different from the scope of patents in my experience. On one hand, you seem to suggest that the use of mathematics is precluded. Not so, although the use of a particular formula in order to create a tangible and meaningful result via an apparatus might be. Then, you express concern that a patent for a particular apparatus might cover an entire application area. This would be extraordinary, particularly under present federal circuit law, but not impossible. Even if this were so, the concern you seem to have expressed is that your colleague misrepresented to you the scope of his or her claims, not that the claims are too large.
Please do not forget, the benefit and purpose of the system *is* to provide a meaningful right to exclude. It is also the cost of the system. Depending which side you are on, you might have a different subjective view as to its benefits, but the theory and argument is that society benefits even though you might not.
The balancing of these interests is, well, where the meat of the matter lies. The truth is therefore, far more interesting than the simple conclusions stated by either of us.
I think you unfairly demonize patents, patent attorneys and examiners. The system is far fairer and more straightforward than you suggest. It is also imperfect and could benefit substantially from improvement. Although many engineers and scientists bristle at the system, it is the reason many have their jobs in the first place and, without it, much of what we do as scientists and, particularly as engineers, would be financially unsupportable.
It is also possible that you yourself might derive no benefit whatsoever from the system, but that the system is nevertheless a good thing for society as a whole. Society is like that.
There are many costs, yes. There are also many benefits. These must be balanced in the aggregate and viewed from a societal standpoint to arrive at a fair assessment of whether the system does good or evil.
Noone else worked on them during that time because they didn't work out so well. So weak were they that Mazda itself abandoned the technology. Everyone else was in a position to develop the technology further, and to attempt a cross-license, but noone bothered. (That happens often in markets, witness the chip marketplace).
I think that forces other than the patent act let to the demise of the everlastingly cute, and undeniably innovative, but commercially unimportant Wankel engine.
By "quite a few," I presume Mr. Harlan means the three (3) that patents that bear your name. Were there more that I missed? Fair enough, but one might have been led to think there were many more.
With all due regard, these characterizations of the process are inconsistent with my experience. It is true that first office actions routinely reject all the claims, and that a fair percentage of patents are granted on the second office action. Mr. Harlan's explanations for these reasons are overstated or wrong.
Mr. Harlan is incorrect that "the burden of proof is on the defender." Mr. Harlan is quite incorrect that the USPTO "simply scans for keywords" in patents, or that they do not search literature. I frequently find non-patent prior art in initial office actions. It *is*, however, the case that the USPTO does lean heavily on patent prior art, doing less search of literature. There are many reasons for limiting the scope of the novelty search to less than a comprehensive search of all prior art, however -- mostly related to the impossibility of conducting a comprehensive search and more importantly, to keeping the cost of a patent examination within the means of individuals.
The statement, "At no time is your patent read by someone who understands it," is outrageous and untrue. It does happen, I suppose, from time to time, but rarely will an examiner pass upon an application before comprehending the nature of the subject matter (s)he is examining.
Also misstated are the standards during an infringement action. A plaintiff must prove owernship and infringement by a preponderance of the evidence, or collect nothing, even if the patent is found to be valid. It is true that the validity of the patent is presumed unless the defendant has made a very substantial showing.
These words do not mean what you think they mean. As an aside, the term "strict construction," at least as that term is used by jurisprudential scholars, has little to do with the proposition you cited, although you adequately characterized Justice Black's absolutist view of the First Amendment as one of strict construction. (Interestingly, if strict construction meant what you said it did, citing the first amendment, which does not enumerate, but rather limits powers, would be a bad example. Black's analysis, I think, is far closer to "textualism" than strict construction, but that's another piece.) But I did not write to get deeply involved in semantics or definition of terms.
The words I am concerned about are the use of the actual language of the constitution, "to promote the Progress of Science and useful Arts." This is not a general requirement to promote "progress," indeed, that construction is not permitted from the text. Nor is it even to promote the progress of sciences as we commonly use the term (for "useful Arts" does not refer to copyrights). Rather, they meant an older definition of Science, used at the time, and consistent with correspondence between Madison and Jefferson, to wit: "the sciences of reading, writing and ciphering;" or rather "a trained skill" as in an occupation.
The Sciences, the progress of which was to be promoted, was the technical skills of the writer. The useful Arts were the technical skills of the inventor.
I *do* understand that this seems obscure and unlikely to someone seeing it for the first time. I do understand these are archaic references (although the phrases quoted above were taken directly from Webster's Third New international).
Please understand that I too was a skeptic until I saw the research. To motivate this construction, please consider how a protecting purely fictional works of authorship or poetry could ever be found to promote "Sciences and the useful Arts."
References available upon request -- they are not online, not terribly -- be ready to sink yourself deeply into the Jeffersonian mind and 18th century-speak. This, by the way, is the strict constructionism as practiced by Bork.
>Considered only in and of themselves, patent laws can easily be made out to be un-constitutional
Unlikely, since Article I, Section 8 of the constitution expressly provides that Congress may pass a patent act. The present Patent Act is not substantively different (albeit there are many procedural differences) in any constitutional regard than the one drafted by Thomas Jefferson in the first Congress.
Larry makes good points. It is important at the outset of these disputes to note that there are no clear answers -- that the truth is far more interesting than any of our speculations. However, on some of his remarks, I dissent.
1. IP not a scarce resource NOT!.
Granted that once created, IP can be freely and inexpensively duplicated. However, this does not mean, IMHO, that IP is not a scarce resource. Until created, IP does not exist. And it need not exist unless those who would create it have an incentive or reason for doing so -- as well as the resources to do it.
Money makes this happen. Money for houses, money for food, money for beer. Money for computers, money for research materials and for education. Companies won't invest in IP if they can free-ride off of others and others can free-ride off of them -- for the simple reason that it makes sense to wait, and spend the money on marketing to out-market the bejesus out of those who did the making. hence they won't invest in scientists who invent, and inventors will create or not, depending upon their wont, for the good of the creation only.
Perhaps a few rare kings will patronize the best minds, the Bachs, the Mozarts, the Beethovens. And then we will have the art that those kings like best. It will be good, but it will suit the needs of the kings. Perhaps.
And perhaps a few things will be made for the sheer glory of it.
Perhaps not.
This is because innovation and creativity is scarce. And becuause absent IP, inventors and innovators have an incentive to hoard their great ideas -- relying, where possible on secrets.
And the great writers will, yick!, go to law school so they can make a living.
Understood that once created, copying is possible. That is not the point of property. It is to allocate resources where they are desired most. And one of those resources are the time and minds of our best and brightest. I want them thinking about brilliant invention and the fame and wealth they might obtain -- I want them aspiring to be brilliant innovators. I don't want them studying case law in a law library.
Inventions and copyrighted works aren't the scarce resource, innovators and authors of works are the scarce resources. IP is how we reward them, for the benefit of society.
2. Free beer and open movies -- TANSTAFFL.
Larry says that there will be an open source version of star wars. That a cadre of artisans and musicians and actors and model-makers will, for the love of it, make the film just so we all can watch the credits at the end. They will reach into their pockets (or some patron will) to pay $100M up front just to make it happen.
I dissent, finding it incredible that the dollars and resources necessary to bring the whole thing together would ever happen absent the ability to recover and make a profit on that investment. More than brainpower and innovation is necessary -- so is capital.
And between your great story idea and mine, how will that cadre of artisans decide? Will we be destined to see nothing but low budget art films for the rest of our life, or is Larry right, nothing would change except for the better?
Each of us can judge for themselves -- just be realistic in arriving at your own conclusions.
Between you and me, the same argument made against IP in part 1 above, with which I don't agree, but for the reasons stated I believe misses the point, explains in large part why a Linux might happen, without demonstrating that a Star Wars can: Linux didn't require the AGGREGATION at once of real and meaningful capital to create. Don't get me wrong. Linux is great. But its only what it is, and its existence does not to me prove the possibility of a spontaneously created Star Wars trilogy.
With all due respect, I disagree with the proposition "Many people desire . . .." While some may leave pieces of land disused "for speculative purposes," few do when another person is interested in buying at a responsible price. (Of course, there is a corresponding -- but pervasive -- problem that arises from having no propery rights -- the tragedy of the commons).
More important, I never said that every piece of land is placed in position that is optimal for society -- I said that aggregately, the land is placed in the hands of those who value it most. If a person considers that the land has value in the future far outweighing the value of its present production, and that it would diminish the value of that land in the interim to use the land's production near-term; with noone feeling that they can make greater use of the land and hence be willing to pay more, who is to say that society has not benefitted by not using the land?
For example, a farmer may rationally leave land fallow for a period of time to avoid overusing it, so that aggregately more bounty is produced by the land over time. Is that detrimental to society?
In short, as between any individual or committee's view of the virtues of what should be done with the land, or the overall impact of the market decision, I favor the latter. Yes, there will be examples of stupid people with more dollars than cents doing stupid things with particular assets. But as a whole, it appears to me that society is better served by allowing the market to work. (It also appears to me far closer to the libertarian ideals than the proposition of abandoning property rights entirely.)
Aaron's points are salient, if one takes the view that an interest in property is predicated solely on the ethical predicate of possessing the fruit of one's labor. Of course, this is not the entire story, even among libertarian philosophers.
I profess no great expertise in this area of philosophy, and so I shall defer to others to articulate best the philosophical opposition, and to state more perspicaciously Ms. Rand's point of view. (I think merely dismissing her arguments on the grounds that she owned the rights really begs the question and amounts to ad hominem argument; indeed, even this naive amateur philosopher sees that the libertarian "fruit of labor" argument seems far stronger for IP than, say, for land.)
No, my foundational understanding of the justification of property rights is a more practical, economic, argument. It is simply this, if I can own property, then I am more likely to care for it so that it produces well, or at least to sell it to someone else who values it more. Accordingly, the property will find its ways (in an aggregate sense) into the hands of those who value it most, which is to the overall benefit of society.
Of course, the preceding is an overly simplified version of the argument. I merely wanted to identify the point of view for the purposes of the following, rather than to defend it per se.
In adopting this, I don't disagree with Aaron -- the INITIAL ALLOCATION of property does tend to be inequitable in some sense -- giving property to folks based solely upon conquest and the like. The thesis is that this initial allocation is irrelevant to the workability of the property system -- however initial allocations work out, the eventual reallocations that result from free market interaction will reach pareto-optimal levels in due course. There will be local inefficiencies, but the overall system will result in greater aggregate wealth. This is, IMHO, a good thing.
Moreover, this is not inconsistent with what Long calls the "ethical" argument, IMHO. Copyright law, for example, gives you the right to own the fruit of your labor, subject to your freedom to assign it to others. Likewise patents and trademarks. If you work your land, you will likewise own the fruits of that work.
Without the right to exclude, however, others can trample on or hoard the resources necessary for you to work the land; and without the right to exclude, your works may be used indefinitely by others without your having benefitted thereby. The latter isn't an ethical argument, but tracks back to the principles laid out in the Constitution, that an incentive is necessary to promote the "Sciences (read -- skills to write works of authorship) and the useful Arts (read -- skills to invent)." Whether or not you have the incentive, absent that right to exclude, the capital necessary to make it possible for you to feed your family while inventing and/or creating will have to come from your other labors and efforts, thereby depriving you of those fruits.
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Yes. The distribution includes a brief "OpenPlay: Project Organization and Porting Notes," an "OpenPlay Programmers Documentation" and "Writing OpenPlay Net Modules."
The porting notes suggest that porting primarily entails: (i) modification of a single file "platform.h," (ii) extending file-system abstraction services to the new platform (mainly, finding a specific folder, iterating over files and then opening and binding to plugins), and (the hardest part), (iii) implementing a new protocol module. Sample plugins for protocol modules are provided, but it is suggested that these tend to be very target-specific and rate to require complete rewrites.
The docs are basically just API references, without much discussion or many examples. The distribution includes sample code, of course.
The docs characterize OpenPlay as a Net module manager, facilitating the programming of systems using an API, which can then be readily ported across various platforms operating from indpendent platform-localized plugins. The principal services of OpenPlay are categorized as configuration, data transfer, enumeration, human interface and miscellaneous functions.
As noted, the function of a signature is primarily unrelated to security or ability to authenticate the author -- it is merely a formal act to give legal effect to an instrument. Accordingly, the preceding remark is non-sequitur.
Of course, signatures serve plural non-legal purposes, among which are precisely the issues of identification and non-deniability. Those purposes are served, or are not served, adequately in the eyes of the parties involved in the transaction. If they trust one another, the only issue is the authentication of the instrument (the giving of legal effect). If they do not, or the risks are too great, they will take greater measures.
But this has nothing to do with the question whether of whether two people who trust one another can engage in the legally effective transfer of title in land by means of an e-mail. The law gives legal effect to the shaving of a mark on the hide of a cow, or the mere writing of a number and an X on a sheet of paper. Why not, then to the following words:
As I noted in an earlier post, the legal purpose of a signature is not to identify the signer, but to provide a formal process of validating the document.
Certain documents do not have legal effect until signed. Upon proving that they were signed properly, a lawyer has proved the legal consequence.
Accordingly, the signature at the end of this message, which authenticates (in the legal sense) the document, but doesn't give you a clue who I am or any assurance that I signed it, is a perfectly useful legal device that doesn't require any government-encouraged secure crypto. I believe this is a good thing (tm).
Frankly, I don't want the law dictating and regulating the technology I choose to sign my documents. It is up to ME if I want to bear the risk that someone might deny a signature they genuinely signed, but might be difficult to prove later. Eggs in baskets. That's what this is about.
The Florida statutes, for example, distinguish between an Electronic Signature, which are the characters set forth at the end of this message, intented to authenticate this message, and a Digital Signature, which is usually the hashed and munged result of some form of asymmetric encryption.
When I said electronic signatures are probably valid under the common law, I was referring to both types. Surprise.
Love, John Wayne
NOTE: The signature above is there to authenticate the message, not to facilitate authentication of the signer of the message. The word "authenticate" is used differently in the preceding sentence, one, a legal term of art referring to the process of "legalizing" a document; the latter, a process for assuring confidence in the identity of the signer. While signatures can serve these dual purposes, the law is only concerned withy the former.
It is most certainly true that feeble efforts such as copying with carbons won't work. Of course, signatures would not be forged in that manner. (I understand that the weapons of choice relate to using light boards and the like).
Yes, it is difficult to get away with faking Abraham Lincoln's signature, because the physical evidence (paper and ink) can effectively date the paper out of period.
But we are talking about contemporaries forging contemporaries; and by using straightforward means of forgery. There was a great article on the subject fairly recently -- let me see if I can't dig it up for you.
The message took an interesting twist. I had thought the inquiry was whether patents directed to software would be unconstitutional for First Amendment reasons. I think this is unlikely, as similar issues have been well-litigated under Copyright law, which, particularly because of the fair use exception, is NOT generally deemed to be a law infringing free speech, even though it provides civil and criminal remedies for certain types of speech.
Patents won't come close to those issues. You can write a computer program in source code without infringing a patent, so long as you don't "make, use, sell or offer for sale" the patented invention. Since a patent cannot be directed to printed matter, it is highly unlikely that the writing and distribution of souce code can raise meaningful infringement, and hence First Amendment issues.
Running the program, that's another matter. Moreover, the recent Bernstein opinion was expressly limited in its holding -- focusing on the expressive, and not the functional aspects of using source code to share fundamental research. It is unlikely the same result would have occurred had the regulation merely precluded distribution of object code or the execution of object code under certain circumstances.
For all of the reasons stated in my prior posts, I was quite impressed by the laissez-faire nature of the bill. It leaves the decisions as to particular technologies used in the hands of the users, and makes a credible stab at handling electronic signatures effectively for international transactions.
There are some technical legal issues arising from the present language, but all in all, it appears on first reading to be an excellent job.
Yes, it does make "love, andy" at the end of an e-mail into a signature, but for the reasons otherwise stated here, I think this will be far better for commerce than a problem at the end of the day.
Slashdot Mirror
The court expressly noted emphasized that its rulings and reasoning were only "tentative." Oral argument is set for June 24, 1999, and in each ruling, counsel was invited once more to try to change the Court's mind.
It is significant to note that the summary judgment of copyright infringement for Sun is not an insignificant blow to Microsoft, since it opens the door to an award of damages, but mostly since it may well result in an award to Sun of reasonable attorney fees and costs, which for this case will be substantial.
Moreover, the Court has shown what appears to be greater tentativeness in some of these rulings than in others, in each case asking specific questions for the lawyers to address during oral argument. Compare the Court's question on the "reverse-engineering" issues:
"Does a Runtime Interpreter, which does not incorporate Sun's intellectual property, but nevertheless "emulates" a Java Runtime Interpreter, constitute a "Product" under the [license agreement.]"
which indicates that the Court is still considering whether the license agreement would still require a "clean-room" Microsoft interpreter to pass the Sun tests, with the almost sardonic, almost rhetorical, questions on the tentative ruling granting Sun's motion for Summary Judgment of copyright infringement:
"1. Is it Microsoft's contention that someone could take the source code to Windows98, run it through a different compiler, distribute the resulting object code and not be liable for copyright infringement for such distribution?
"2. Is it Microsoft's contention that object code is not substantially similar to source code?"
Also, don't overlook the off-hand remark in Question 4 of the questions at the end of the "Right to Engage in Independent Development" opinion, where the court expressly noted by reference to Sun's patents that "In light of the above, it does not appear that Microsoft's [unlicensed] independent development rights relating to the Java Technology would be very broad."
While I agree with the commentary that the Court has done good for all (including, Microsoft) by suggesting that one doesn't need a license to perform a clean room, the Court did do Microsoft some harm yesterday, and might not have given Microsoft as much room as has been supposed to go forward in the Java arena.
Also, as noted by others, Trademark law may have an awful lot to say with how Microsoft will be able to characterize any independently developed product.
I think for reasons similar to the reason that Darth Vader was quite surprised and interested when Obi-Wan did. Anakin doesn't disappear either when he dies, and he kills the emperor!
Perhaps the disappearing requires a certain purity and non-compromise. Qui-Gon was a renegade who frequently skirted the code, Anakin, of course, is the tragic hero who falls to the dark side before committing the ultimate good (by killing Sidious). Maybe such flaws are sufficient to keep one out of Jedi heaven.
Nasty mythology if that's the case -- all your survivors get to know if you "made it."
From my perspective, it suffices to have extraterritorial reach to someone sending a spam message *TO ME*.
Whether this is so will depend in large part upon the nature of the particular spamming conduct. However, where there is a commercial solicitation included in the spam, where the spam is sent from overseas on behalf of someone in the US, or the like, I can usually slam-dunk anyone, legally speaking, who is merely trying to use out-of-US point-of-origin as a vehicle to avoid the act.
In practice, its not so hard. Ordinary discovery via ex parte seizure can do it, but also egregious conduct is typically caught at the ISP level, who has plural copies readily available.
My point is that the vast amount of e-mail, including listServ transmissions (note the definition) fits the 10 version. And of those who you might accidentally lie (tho' a smart e-mail program will fix when there are a buncha' cc's), most of your spamees won't mind as a matter of course.
Thus, there is virtually no burden on users, and substantial risks to the violating spamee if caught. If the disincentives are steep enough (statutory damages, criminal penalties), we have won already, simply by making it irrational to spam AND lie unless you are CERTAIN its untraceable.
The bill is nice, so far as it goes, but it still gives each mail account at least one free bite at the apple -- one spam with an "honest" routing message, before it gets killfiled. This means that the cost of spamming is only the cost of setting up a new account for each new broadcast, which is, as we know, bupkis.
.), let's simply regulate affirmatively false speech. (False speech is not constitutionally protected).
The way to stop spam is to stop the spammer's incentive to spam. The problem with spam is simply a matter of economics -- the spammer has no reason not to spam, and substantial incentive to spam.
On the other hand, when asking the question: "what is spam?," it is hard to find a definition that doesn't adequately characterize spamming in a manner that enforces unwanted speech upon the spammer, making it constitutionally suspect. (Indeed, many of the pro-spam in anti-spam-sheep's-clothing apologized for the weak teeth version by claiming more would be unconstitutional)
But there is a better way . . . and its the internet way!
Instead of forcing certain language upon spammers based on their content (commercial, uncommercial, warranted, unwarranted, etc. .
Assume that I added to each e-mail message, the following:
"This message (and messages equivalent) have not been sent to more than 10 different e-mail addresses within the past week, except for e-mail addresses of persons who subscribed for receipt of bulk mails."
And assume, since we are smart, that this is done more efficiently with a standardized message in the header:
> X-DIST 10
or the like. Now, we do not require that anyone includes this message in their header -- everyone is free to use it or not use it as they wish.
However, we ban, bar, provide hefty penalties for, criminalize, or whatever, the falsifying of this header. (Indeed, Goodlatte's bill might already catch this, since it does bar false header information -- but the way the law works, I'd want this to be clear before asserting it against anyone).
Better yet, standardize the header and its meaning with an RFC, get on the stick with e-mail programs to routinely generate them, and in a generation or two of e-mail revisions, EVERY LEGIT MAIL HAS THE HEADER, and EVERY LEGIT SPAM HAS THE HEADER, but with a number bigger than 100, or no header at all.
Now we can filter spam easily, and anyone who sneaks by the filter is violating the law. This is the desired effect. IF the anti-spam desires of the people are sufficiently great, the convention will be adopted, and spam is dealt with without the first amendment being trodden upon. If otherwise, the bill does no harm.
This will require some work by the technical community, but not much. And if Goodlatte amends to capture fraudulent header information related to manner of distribution, we won't need any further help from the legislature to give it teeth, at least in intro-US of A communications.
Doggieh hits it on the nose. Feist pretty much slams the possibility for protecting any databse whose structure and organization is essentially determined by function. This is not true for any database, however -- many databases can be protected (and have been protected) by courts since Feist.
On the other hand, NSI will have substantial difficulty distinguishing its database from the white pages in Feist, given the essential function and operation of whois.
BUT BEWARE! The lawyers in Feist have not lost their mind. They may not have an advantage under today's law, but the law may be about to change:
Legislation to give what we lawyers call sui generis (read "special treatment") protection for databases is presently pending before the Congress as we speak. It was a part of last year's Digital Millenium Copyright Act, but (thank g-d) was pulled at the last minute.
Even worse, the definition of "collection of information" was so broad in last year's bill, and the elimination of a traditional "fair use" exception, threatened to make this sui generis bill swallow the few saving graces left in Copyright law.
But like all pieces of special interest legislation -- and the database bill is no different -- It's BAAACK! While the present legislation is far superior to last year's, in that it does have a fair-use-like exception built in, it is all the more dangerous because of its acceptability therefor. Congress may well pass the bill in this form this term or next, unless folks quickly mobilize against it.
What's wrong with HR354? Well, the whois database is an excellent example. After the database legislation passes, NSI might well succeed in making its claims stick.
After the movie industry did its ever loving best to shut down the Betamax machine, taking the case all the way to the Supreme Court, no less, what happened?
Losers, losers, losers.
The Supreme Court made clear than unless Sony was actually inducing people to pirate videotapes, there could be liability only if the apparatus had no lawful noninfringing use. Since the Court found that using a VCR for time-shifting of broadcast television would constitute fair use, this meant that a customer COULD be making lawful use of the VCR, and hence there was no liability.
[Deep irony, of course, is that SONY couldn't manage to persuade the world to accept a seriously closed format, even though the alternative was technically inferior in many respects. At the end of the day, SONY owned 100% of nothing, and litigated the film industry into what was probably the most profitable legal result for a loser in history.]
It seems apparent that opportunities for non-infringing use of MP3 format abound.
Accordingly, what matter of this supposed "willing[ness] to fight for [RIAA's] interests in the courts[?] It has the money and the muscle to try to convince technology companies and Internet music vendors to see things its way."
How? Sue who? For what? In the face of blatant Supreme Court authority? Fine. Time will put that threat to bed, although someone will have to suffer for awhile, with a probable award of attorney fees at the end of the day for a prevailing defendant.
Boycotting the format? Well, for that to work, they'll have to accomplish what even OPEC could not -- a boycott on a prodigious format means ceding a potent market, and hence, as soon as one company decides to make a buck that way, it will take balls of steel but a mind of mush to ignore it. Record industry is no longer a lock -- alternative labels do and can "make it." Can RIAA's boycot?
RIAA may be a formidable force. However, a free market is a far more formidable force. The natural and inexorable flow of capital flows harder and more forcefully than any dinosaur trying to protect a dying turf. Witness: OPEC.
At the end of the day, RIAA's best hope is to find a magical alternative format that people will *WANT* to use. Anything less will not be enough. Any other strategy is losing.
I am truly sorry if the response was painful. I hope that you found it at least interesting.
It is difficult, if not impossible, to respond meaningfully to the general hypotheticals you gave without more detail. Suffice it to say that I have defended against patents that I found to be overbroad and invalid, winning some and losing some. I have also had to defend some patents that issued because of less than vigilant defense of the system by the examiner. No system is perfect, but ours works pretty well, IMHO.
As to the benefit in your case -- Conopco hired you to do the research. It paid for your salary. If it couldn't own, to some extent, the fruits of that work, it might not have hired you at all, or might have paid much less -- finding the better business decision to be to let the other guy hire you and benefit by free-riding. (Problem is, the other guy is thinking the same thing).
Perhaps Stanford is better able to provide you with the facilities you provide because of the revenues it derived from licensing?
I do think, however, that the scope of patents you describe is somewhat different from the scope of patents in my experience. On one hand, you seem to suggest that the use of mathematics is precluded. Not so, although the use of a particular formula in order to create a tangible and meaningful result via an apparatus might be. Then, you express concern that a patent for a particular apparatus might cover an entire application area. This would be extraordinary, particularly under present federal circuit law, but not impossible. Even if this were so, the concern you seem to have expressed is that your colleague misrepresented to you the scope of his or her claims, not that the claims are too large.
Please do not forget, the benefit and purpose of the system *is* to provide a meaningful right to exclude. It is also the cost of the system. Depending which side you are on, you might have a different subjective view as to its benefits, but the theory and argument is that society benefits even though you might not.
The balancing of these interests is, well, where the meat of the matter lies. The truth is therefore, far more interesting than the simple conclusions stated by either of us.
I think you unfairly demonize patents, patent attorneys and examiners. The system is far fairer and more straightforward than you suggest. It is also imperfect and could benefit substantially from improvement. Although many engineers and scientists bristle at the system, it is the reason many have their jobs in the first place and, without it, much of what we do as scientists and, particularly as engineers, would be financially unsupportable.
It is also possible that you yourself might derive no benefit whatsoever from the system, but that the system is nevertheless a good thing for society as a whole. Society is like that.
There are many costs, yes. There are also many benefits. These must be balanced in the aggregate and viewed from a societal standpoint to arrive at a fair assessment of whether the system does good or evil.
> Of all the nations in the world, the US stands alone in permitting software algorithms to be patented.
This is not the case.
Noone else worked on them during that time because they didn't work out so well. So weak were they that Mazda itself abandoned the technology. Everyone else was in a position to develop the technology further, and to attempt a cross-license, but noone bothered. (That happens often in markets, witness the chip marketplace).
I think that forces other than the patent act let to the demise of the everlastingly cute, and undeniably innovative, but commercially unimportant Wankel engine.
By "quite a few," I presume Mr. Harlan means the three (3) that patents that bear your name. Were there more that I missed? Fair enough, but one might have been led to think there were many more.
With all due regard, these characterizations of the process are inconsistent with my experience. It is true that first office actions routinely reject all the claims, and that a fair percentage of patents are granted on the second office action. Mr. Harlan's explanations for these reasons are overstated or wrong.
Mr. Harlan is incorrect that "the burden of proof is on the defender." Mr. Harlan is quite incorrect that the USPTO "simply scans for keywords" in patents, or that they do not search literature. I frequently find non-patent prior art in initial office actions. It *is*, however, the case that the USPTO does lean heavily on patent prior art, doing less search of literature.
There are many reasons for limiting the scope of the novelty search to less than a comprehensive search of all prior art, however -- mostly related to the impossibility of conducting a comprehensive search and more importantly, to keeping the cost of a patent examination within the means of individuals.
The statement, "At no time is your patent read by
someone who understands it," is outrageous and untrue. It does happen, I suppose, from time to time, but rarely will an examiner pass upon an application before comprehending the nature of the subject matter (s)he is examining.
Also misstated are the standards during an infringement action. A plaintiff must prove owernship and infringement by a preponderance of the evidence, or collect nothing, even if the patent is found to be valid. It is true that the validity of the patent is presumed unless the defendant has made a very substantial showing.
These words do not mean what you think they mean. As an aside, the term "strict construction," at least as that term is used by jurisprudential scholars, has little to do with the proposition you cited, although you adequately characterized Justice Black's absolutist view of the First Amendment as one of strict construction. (Interestingly, if strict construction meant what you said it did, citing the first amendment, which does not enumerate, but rather limits powers, would be a bad example. Black's analysis, I think, is far closer to "textualism" than strict construction, but that's another piece.) But I did not write to get deeply involved in semantics or definition of terms.
The words I am concerned about are the use of the actual language of the constitution, "to promote the Progress of Science and useful Arts." This is not a general requirement to promote "progress," indeed, that construction is not permitted from the text. Nor is it even to promote the progress of sciences as we commonly use the term (for "useful Arts" does not refer to copyrights). Rather, they meant an older definition of Science, used at the time, and consistent with correspondence between Madison and Jefferson, to wit: "the sciences of reading, writing and ciphering;" or rather "a trained skill" as in an occupation.
The Sciences, the progress of which was to be promoted, was the technical skills of the writer. The useful Arts were the technical skills of the inventor.
I *do* understand that this seems obscure and unlikely to someone seeing it for the first time. I do understand these are archaic references (although the phrases quoted above were taken directly from Webster's Third New international).
Please understand that I too was a skeptic until I saw the research. To motivate this construction, please consider how a protecting purely fictional works of authorship or poetry could ever be found to promote "Sciences and the useful Arts."
References available upon request -- they are not online, not terribly -- be ready to sink yourself deeply into the Jeffersonian mind and 18th century-speak. This, by the way, is the strict constructionism as practiced by Bork.
Perhaps this is because he expressly criticizes the views of Hayek and Rand on this matter?
deborah writes:
>Considered only in and of themselves, patent laws can easily be made out to be un-constitutional
Unlikely, since Article I, Section 8 of the constitution expressly provides that Congress may pass a patent act. The present Patent Act is not substantively different (albeit there are many procedural differences) in any constitutional regard than the one drafted by Thomas Jefferson in the first Congress.
Larry makes good points. It is important at the outset of these disputes to note that there are no clear answers -- that the truth is far more interesting than any of our speculations. However, on some of his remarks, I dissent.
1. IP not a scarce resource NOT!.
Granted that once created, IP can be freely and inexpensively duplicated. However, this does not mean, IMHO, that IP is not a scarce resource. Until created, IP does not exist. And it need not exist unless those who would create it have an incentive or reason for doing so -- as well as the resources to do it.
Money makes this happen. Money for houses, money for food, money for beer. Money for computers, money for research materials and for education. Companies won't invest in IP if they can free-ride off of others and others can free-ride off of them -- for the simple reason that it makes sense to wait, and spend the money on marketing to out-market the bejesus out of those who did the making. hence they won't invest in scientists who invent, and inventors will create or not, depending upon their wont, for the good of the creation only.
Perhaps a few rare kings will patronize the best minds, the Bachs, the Mozarts, the Beethovens. And then we will have the art that those kings like best. It will be good, but it will suit the needs of the kings. Perhaps.
And perhaps a few things will be made for the sheer glory of it.
Perhaps not.
This is because innovation and creativity is scarce. And becuause absent IP, inventors and innovators have an incentive to hoard their great ideas -- relying, where possible on secrets.
And the great writers will, yick!, go to law school so they can make a living.
Understood that once created, copying is possible. That is not the point of property. It is to allocate resources where they are desired most. And one of those resources are the time and minds of our best and brightest. I want them thinking about brilliant invention and the fame and wealth they might obtain -- I want them aspiring to be brilliant innovators. I don't want them studying case law in a law library.
Inventions and copyrighted works aren't the scarce resource, innovators and authors of works are the scarce resources. IP is how we reward them, for the benefit of society.
2. Free beer and open movies -- TANSTAFFL.
Larry says that there will be an open source version of star wars. That a cadre of artisans and musicians and actors and model-makers will, for the love of it, make the film just so we all can watch the credits at the end. They will reach into their pockets (or some patron will) to pay $100M up front just to make it happen.
I dissent, finding it incredible that the dollars and resources necessary to bring the whole thing together would ever happen absent the ability to recover and make a profit on that investment. More than brainpower and innovation is necessary -- so is capital.
And between your great story idea and mine, how will that cadre of artisans decide? Will we be destined to see nothing but low budget art films for the rest of our life, or is Larry right, nothing would change except for the better?
Each of us can judge for themselves -- just be realistic in arriving at your own conclusions.
Between you and me, the same argument made against IP in part 1 above, with which I don't agree, but for the reasons stated I believe misses the point, explains in large part why a Linux might happen, without demonstrating that a Star Wars can: Linux didn't require the AGGREGATION at once of real and meaningful capital to create. Don't get me wrong. Linux is great. But its only what it is, and its existence does not to me prove the possibility of a spontaneously created Star Wars trilogy.
With all due respect, I disagree with the proposition "Many people desire . . . ." While some may leave pieces of land disused "for speculative purposes," few do when another person is interested in buying at a responsible price. (Of course, there is a corresponding -- but pervasive -- problem that arises from having no propery rights -- the tragedy of the commons).
More important, I never said that every piece of land is placed in position that is optimal for society -- I said that aggregately, the land is placed in the hands of those who value it most. If a person considers that the land has value in the future far outweighing the value of its present production, and that it would diminish the value of that land in the interim to use the land's production near-term; with noone feeling that they can make greater use of the land and hence be willing to pay more, who is to say that society has not benefitted by not using the land?
For example, a farmer may rationally leave land fallow for a period of time to avoid overusing it, so that aggregately more bounty is produced by the land over time. Is that detrimental to society?
In short, as between any individual or committee's view of the virtues of what should be done with the land, or the overall impact of the market decision, I favor the latter. Yes, there will be examples of stupid people with more dollars than cents doing stupid things with particular assets. But as a whole, it appears to me that society is better served by allowing the market to work. (It also appears to me far closer to the libertarian ideals than the proposition of abandoning property rights entirely.)
Aaron's points are salient, if one takes the view that an interest in property is predicated solely on the ethical predicate of possessing the fruit of one's labor. Of course, this is not the entire story, even among libertarian philosophers.
I profess no great expertise in this area of philosophy, and so I shall defer to others to articulate best the philosophical opposition, and to state more perspicaciously Ms. Rand's point of view. (I think merely dismissing her arguments on the grounds that she owned the rights really begs the question and amounts to ad hominem argument; indeed, even this naive amateur philosopher sees that the libertarian "fruit of labor" argument seems far stronger for IP than, say, for land.)
No, my foundational understanding of the justification of property rights is a more practical, economic, argument. It is simply this, if I can own property, then I am more likely to care for it so that it produces well, or at least to sell it to someone else who values it more. Accordingly, the property will find its ways (in an aggregate sense) into the hands of those who value it most, which is to the overall benefit of society.
Of course, the preceding is an overly simplified version of the argument. I merely wanted to identify the point of view for the purposes of the following, rather than to defend it per se.
In adopting this, I don't disagree with Aaron -- the INITIAL ALLOCATION of property does tend to be inequitable in some sense -- giving property to folks based solely upon conquest and the like. The thesis is that this initial allocation is irrelevant to the workability of the property system -- however initial allocations work out, the eventual reallocations that result from free market interaction will reach pareto-optimal levels in due course. There will be local inefficiencies, but the overall system will result in greater aggregate wealth. This is, IMHO, a good thing.
Moreover, this is not inconsistent with what Long calls the "ethical" argument, IMHO. Copyright law, for example, gives you the right to own the fruit of your labor, subject to your freedom to assign it to others. Likewise patents and trademarks. If you work your land, you will likewise own the fruits of that work.
Without the right to exclude, however, others can trample on or hoard the resources necessary for you to work the land; and without the right to exclude, your works may be used indefinitely by others without your having benefitted thereby. The latter isn't an ethical argument, but tracks back to the principles laid out in the Constitution, that an incentive is necessary to promote the "Sciences (read -- skills to write works of authorship) and the useful Arts (read -- skills to invent)." Whether or not you have the incentive, absent that right to exclude, the capital necessary to make it possible for you to feed your family while inventing and/or creating will have to come from your other labors and efforts, thereby depriving you of those fruits.
It's not PC here to say so, but there it is.
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Yes. The distribution includes a brief "OpenPlay: Project Organization and Porting Notes," an "OpenPlay Programmers Documentation" and "Writing OpenPlay Net Modules."
The porting notes suggest that porting primarily entails: (i) modification of a single file "platform.h," (ii) extending file-system abstraction services to the new platform (mainly, finding a specific folder, iterating over files and then opening and binding to plugins), and (the hardest part), (iii) implementing a new protocol module. Sample plugins for protocol modules are provided, but it is suggested that these tend to be very target-specific and rate to require complete rewrites.
The docs are basically just API references, without much discussion or many examples. The distribution includes sample code, of course.
The docs characterize OpenPlay as a Net module manager, facilitating the programming of systems using an API, which can then be readily ported across various platforms operating from indpendent platform-localized plugins. The principal services of OpenPlay are categorized as configuration, data transfer, enumeration, human interface and miscellaneous functions.
As noted, the function of a signature is primarily unrelated to security or ability to authenticate the author -- it is merely a formal act to give legal effect to an instrument. Accordingly, the preceding remark is non-sequitur.
Of course, signatures serve plural non-legal purposes, among which are precisely the issues of identification and non-deniability. Those purposes are served, or are not served, adequately in the eyes of the parties involved in the transaction. If they trust one another, the only issue is the authentication of the instrument (the giving of legal effect). If they do not, or the risks are too great, they will take greater measures.
But this has nothing to do with the question whether of whether two people who trust one another can engage in the legally effective transfer of title in land by means of an e-mail. The law gives legal effect to the shaving of a mark on the hide of a cow, or the mere writing of a number and an X on a sheet of paper. Why not, then to the following words:
Love, me.
As I noted in an earlier post, the legal purpose of a signature is not to identify the signer, but to provide a formal process of validating the document.
Certain documents do not have legal effect until signed. Upon proving that they were signed properly, a lawyer has proved the legal consequence.
Accordingly, the signature at the end of this message, which authenticates (in the legal sense) the document, but doesn't give you a clue who I am or any assurance that I signed it, is a perfectly useful legal device that doesn't require any government-encouraged secure crypto. I believe this is a good thing (tm).
Frankly, I don't want the law dictating and regulating the technology I choose to sign my documents. It is up to ME if I want to bear the risk that someone might deny a signature they genuinely signed, but might be difficult to prove later. Eggs in baskets. That's what this is about.
Love,
Jack the Ripper
It may not be so clear.
The Florida statutes, for example, distinguish between an Electronic Signature, which are the characters set forth at the end of this message, intented to authenticate this message, and a Digital Signature, which is usually the hashed and munged result of some form of asymmetric encryption.
When I said electronic signatures are probably valid under the common law, I was referring to both types. Surprise.
Love,
John Wayne
NOTE: The signature above is there to authenticate the message, not to facilitate authentication of the signer of the message. The word "authenticate" is used differently in the preceding sentence, one, a legal term of art referring to the process of "legalizing" a document; the latter, a process for assuring confidence in the identity of the signer. While signatures can serve these dual purposes, the law is only concerned withy the former.
It is most certainly true that feeble efforts such as copying with carbons won't work. Of course, signatures would not be forged in that manner. (I understand that the weapons of choice relate to using light boards and the like).
Yes, it is difficult to get away with faking Abraham Lincoln's signature, because the physical evidence (paper and ink) can effectively date the paper out of period.
But we are talking about contemporaries forging contemporaries; and by using straightforward means of forgery. There was a great article on the subject fairly recently -- let me see if I can't dig it up for you.
The message took an interesting twist. I had thought the inquiry was whether patents directed to software would be unconstitutional for First Amendment reasons. I think this is unlikely, as similar issues have been well-litigated under Copyright law, which, particularly because of the fair use exception, is NOT generally deemed to be a law infringing free speech, even though it provides civil and criminal remedies for certain types of speech.
Patents won't come close to those issues. You can write a computer program in source code without infringing a patent, so long as you don't "make, use, sell or offer for sale" the patented invention. Since a patent cannot be directed to printed matter, it is highly unlikely that the writing and distribution of souce code can raise meaningful infringement, and hence First Amendment issues.
Running the program, that's another matter. Moreover, the recent Bernstein opinion was expressly limited in its holding -- focusing on the expressive, and not the functional aspects of using source code to share fundamental research. It is unlikely the same result would have occurred had the regulation merely precluded distribution of object code or the execution of object code under certain circumstances.
For all of the reasons stated in my prior posts, I was quite impressed by the laissez-faire nature of the bill. It leaves the decisions as to particular technologies used in the hands of the users, and makes a credible stab at handling electronic signatures effectively for international transactions.
There are some technical legal issues arising from the present language, but all in all, it appears on first reading to be an excellent job.
Yes, it does make "love, andy" at the end of an e-mail into a signature, but for the reasons otherwise stated here, I think this will be far better for commerce than a problem at the end of the day.