Orrin Hatch, is moving to outlaw P2P entirely by making it illegal to produce such applications.
No doubt he would like that result, which failed in previous attempts to legislate regulation out of existence, such as the several forms of technology regulation previously advocated by Hollings. But that was not to be.
In any case, S. 2560 does not address production of P2P applications, but rather, the inducement of infringement by a third party. Some background is in order to understand the difference.
DIRECT INFRINGEMENT. Really, the question is when should a person be liable for infringement? One easy answer: when she infringes! Did Sarah infringe a copyright when she reproduced, distributed or made copies of a copyrighted work without consent or any other defense? If so, Sarah needs a lawyer. O/W, she isn't an infringer.
INDIRECT INFRINGEMENT. But then, couldn't Sarah avoid infringement altogether by instructing her employee, Julia, to make the copies for her? Nope! Even though Sarah herself committed no infringing acts (reproducing, distribution or derivation), Sarah engaged in conduct that gives rise to a kind of liability, the genus of which is variously called, indirect, secondary or derivative infringement. There cannot be any kind of secondary liability unless and until some third party actually infringes. Then, the question is when is Sarah liable for Julia's infringement, even though Sarah did not herself commit a prohibited act?
INDIRECT: VICARIOUS INFRINGEMENT. The particular species of secondary liability in the Sarah/Julia example is called "vicarious liability," and it derives from the fact that she controlled (in her capacity as employer) the conduct of Julia, directed the infringement and then enjoyed a financial benefit from that control. It is a well-settled idea in copyright law, and offers nothing new to this discussion, except to understand some of what follows.
INDIRECT: CONTRIBUTORY INFRINGEMENT. Now, what if Sarah didn't ask an employee about this, but new that Sleazy Sammy will take just about any work left in plain sight to infringe? Now, Sarah, knowing SS is going to do the deed, advertently places the copy in a location to facilitate the infringement. This now is the classic example of contributing to the infringement of another. (The classical example is leaving a print of a movie in a place for someone to pirate from.)
So, there you go. Acts of direct infringement by Sarah, she loses. If some third party, either Julia or SS infringe, Sarah might still be liable if she is vicariously responsible or if she contributed to the infringement. Proof of secondary liability is usually trickier, and requires proofs of scienter and financial benefit from the conduct, but varies somewhat, depending on the circuit.
NOW, the copying machine cases. Assume Sarah doesn't even HAVE a copy of the Paul, the plaintiff's, work. However, Sarah makes this really neat new movable type printing press, that can be used to reproduce and facilitate distribution of Paul's stuff. The question is whether Sarah can be liable for Carla Customer's use of the printing press to infringe Paul's work. (Once again, we assume that Carla DID THE DEED, and has no defenses. If she didn't infringe or has no defenses, then Sarah is always off the hook.)
This was a hot issue for awhile, that seemed to be raised by someone literally every time a new duplication or distribution technology is produced, from the player piano, to the radio, to the audio tape machine, to the television, to the video tape machine, to the DAT machines until today, with P2P filesharing technology. Allegations are old news. But what of the law? The problems are that the cost of suing a mass market of customers is often great, but liability creates a risk of deterring the development of useful and important technologies.
Well, the principal case here was the Sony Betamax case, in which the movie studios sued Sony for manufacturing a video-tape recor
WhenU filed suit in April asking for an injunction, and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?
Amazing how we shift so fluidly from First Amendment absolutism to geek-made exceptions and balancing with other rights. Get it? The First Amendment is hard, both intellectually and substantively. No intuition or sense of justice can properly guide Justice's constructions of the words "no law" as applied to the vast range of First Amendment cases. And no intuition or sense of justice will not, on occasion, be reviled as we are offended and in other cases hurt by the practice of others under the First Amendment.
It certainly may be arguable whether there is a first amendment interest in publishing software, and as to the distinction between expression and conduct found therein. But as you formulate your knee-jerk responses, recognize that these rules must apply with equal force to all applications of the law and, in particular, to all applications of software.
In my view, there is adequate protection from Spyware under provisions of the various computer crime laws. I also think there is probably a sound "no first amendment implicated" argument to be made here.
But don't for a minute think that the analysis will begin, in any intelligent forum, along the lines of: "You claim First Amendment Rights? What about my _______ Rights?" That's just not the way it works, at least with the First Amendment.
Blackberry attacked on both noninfringement and invalidity on summary judgment, and lost. They went to trial on both issue, and lost. They argued against injunctive relief, and lost.
So the patent is certainly sufficient to pass the smell-test.
They are now before the Federal Circuit to determine whether the court errred below, Blackberry's last gasp to survive.
time will tell whether the plaintiff will prevail at this point, but overreaching, after a full trial on the merits? you have got to be an ideologue even to ask the question.
The problem with the English Rule is that it dramatically increases the nuisance value for a well-monied plaintiff suing a moderate or poorly-monied defendant. The defendant, even with a meritorious case, is far more likely to cave.
Sure, when a company asserts an absolutely meritless patent action against an individual who is capable of bringing a case all the way through trial (or summary judgment) and appeals, an English Rule approach will do justice, and might arguably deter bad acting conduct. On the other hand, when does this really, really happen? What individual can shell out the million or two necessary for her defense?
On the other hand, when a company asserting a probably meritless patent action against a nice mid-sized company. The damages asserted are wildly out-of-touch with reality, but the risk of losing on the downstroke, even where the plaintiff gets a third what they were demanding, means an award of plaintiff's fees, and a million or two kicker, under the English Rule. Accordingly, the defendant has literally NO poker hand to play at the settlement conference.
This is the experience with the Copyright Act, which has an almost dead-nuts lock fee-shifting rule for prevailing plaintiffs, with a pretty-good-chance-but-not-a-lock-shot of getting fees for defendant. The plaintiffs are all over the defendant with even a so-so case, and have little reason in practice to settle reasonably. The more unbalanced the respectice resources of the parties, the worse it is.
THEN, we consider the plight of the little-guy-as-plaintiff-with-a-meritorious-case. This poor shmuck now faces the choice of walking away from a solid claim, or risking personal financial anhialation if he is wrong or lawyerly outmatched.
Since few cases are ever clear, the English rule for IP has the salutary effect of reducing cases brought against defendants. However, it is the poor shmucks who lose out in almost every case. The advantage for the well-heeled is much greater, a story that we don't need here, where the well-heeled have already too much clout. In practice, a poorly monied plaintiff with a great case can consider sharing a piece of the result with a contingency lawyer under the US rule. Under the English Rule, the economics change dramatically.
All rules of general application are bad rules for particular instances, until you consider the consequences. Fee-shifting is no exception. STAC would likely never have gotten its multi-million dollar result against Microsoft under an English Rule approach, while powerful and monied plaintiffs would still be bullying individual and small companies.
when you rely on free legal advice. These disclaimers ARE material, and important in appropriate circumstances, although not for any of the reasons considered i the article. I can think of two principal reasons for using disclaimers along the lines of "this is secret or privileged and may not be for you -- if it isn't don't read it and return it without reading further. thanks":
1) to PRESERVE (not to create) privilege in the case of inadvertent discovery; and
2) to PRESERVE (not to create) liability against subsequent use or disclosure of trade secret materials.
The problem is this: we send or copy e-mails to the wrong guy by accident, not with great frequency, but often enough. This isn't always avoidable, and may well be inadvertent. In such a case, there are two serious consequences: loss of ALL PRIVILEGES of attorney-client communications or work product material by waiver; and loss of trade secrecy in inadvertently disclosed matter.
The cases are clear enough: a reasonable notice or disclaimer, while not itself sufficient to survive an inadvertent discovery, is necessary to fix the problem. For one, a lawyer who knowingly reads the improper matter has committed an ethical breach, and whether or not knowingly, may expose himself to disqualification from representing his client in that matter or worse. Moreover, inadvertent discovery can save privilege, even when sent to opposing counsel, with an appropriate disclaimer.
As to trade secrets, the issue is less clear. While it is unlikely that the reading of the e-mail, even if willful, would itself constitute a misappropriation of a secret for acquiring by "wrongful means," the message would probably suffice to limit subsequent use or disclosure, since the reader would "know or should have known" about its secrecy. There would always be other issues, but the presence of a disclaimer would be a welcome fact in the instance of an excused or inadvertent disclosure.
Of course, putting the message AT THE END OF THE E-MAIL is insane. In our offices, the disclaimer is always at the beginning.
I know that file sharing of unlicensed copyrighted works is illegal, but the practice of threatening lawsuits left and right still bothers me. As many of you are aware, a number of the people already sued did not have the financial ability to fund a lawyer even if they wanted to. The question is, what happens if a company (like DirecTV mentioned here) starts blanket suing for something that is not necessarily illegal? These corporations have deep pockets, and they could threaten to sue the crap out of you for looking at them cock-eyed, to which many people would have to settle out of court (I'm not being literal). If you can't afford a lawyer then what do you do? 'Admit' to wrong-doing you didn't committ? Again, I realize that a lot of file sharing IS illegal, but the whole blanket lawsuit thing does raise some interesting (or scary?) questions.
A prevailing defendant in a copyright infringement action has an excellent chance of recovering his attorney fees, particularly where the plaintiff is engaging in shotgun litigation. A corporation that is doing massive, but unjustified, litigation abuse is exposing itself to a class action.
Also, in a copyright action, an offer of judgment can be made to assure an award of fees even if you lose, but the plaintiff does not get more than what they seek. Most people who can afford a computer can afford sufficient legal fees, at least, to get to that point. If the case is not worth more on the merits, the corporation and lawyers are exposing themselves to significantly more costs than they can ever recover by litigation abuse.
In this case, let's remember how you began: the file sharing is illegal. The defendants may not have done the deed, but if they did, they have infringed and are subject to statutory damages. While I appreciate the hypothetical of the nasty company attempting to abuse individuals by litigation (and there are situations vice-versa as well!), this is not such a case.
The alternative to individual actions is more technology regulation like the Napster case, where the people who make computers, networks and file-sharing services that can be used for legitimate purposes are held accountable. Suing actual infringers is probably the right thing to do.
But Motions for Summary Judgment aren't trivial to obtain. The standard is quite high. The moving party bears the burden to suggest the absence of any triable question of material fact and entitlement to relief as a matter of law.
After that, the burden shifts to the non-moving party to introduce record evidence that raises a genuine question of material fact. More than a bare minimum showing is necessary, but not much at all. Every reasonable inference goes to the non-moving party.
SCO will have to put up something at last, but they don't need to show their entire hand to survive this motion, and very little is required for them to survive. Don't be surprised to feel a bit queasy as you see little more than a hand-wave or two from SCO with pointers to record evidence, and then the judge saying, well, that's a question for the fact-finder to decide in a technical case.
All you need to do is obsolete the software. Produce an open-source version of the system -- make it available to the students.
Hell, make an open-source word processor that will show the student his grade before he submits the paper!
See how fast they recede from relying on automation.
Want to know how the system works, or how it was built? That's what open records act statutes are for!
Make this a nightmare for them, and watch them squirm. It would be fun and, more important, we might make a pedagogical tool out of their laziness -- a tool students can use to IMPROVE their writing!
It is NOT cheating to use a grading word-processor, any more than it is cheating to use a calculator.
Why, preytell, have there been no petitions to have SCOs lawyers disbarred yet?
Perhaps because there are no grounds for disbarring them. Overreaching and intemperate language may feel good, but does a world of hurt before those who either have not solidified their views or must judge them.
Confidentiality is not a privilege that would preclude discovery, although you can seek a protective order to protect the confidential or trade secret uses by the other party beyond the scope of the lawsuit. Attorney/client privilege or the like can be such a ground, but not mere confidentiality or sensitivity of the information.
This will not appear to the court to be a nutsy overburdensome subpoena -- the Court will not treat a handwave attempt to quash it with great favor. The subject matter of the requests is not necessarily privileged, and in cases that privilege is waived, may be obtained even if they are. The process is to request the documents relevant to the cause of action.
The responding party may object on grounds of privilege or relevance, and either seek a protective order or defend if a motion to compel is filed. They may be asked to produce a privilege log, identifying unprivileged aspects of communications if privileged, at which time the court may either decide the question or view the documents "in camera" (by themselves) to decide the discovery dispute.
Lawyers are for the most part a bunch of blood sucking leeches, not at all untersted in the truth, and hell bent on sucking the life blood out of as many Americans as possible.
I suggested that the author might have been more significantly motivated by a blind ideological view of both lawyers and practice. Cogito Ergo Sum.
His repeated personal attacks require no further response.
Show me just ONE example of Microsoft actually increasing prices in the past few years.
Microsoft has raised the prices of various products and services over the past five years, as any trivial google search will reveal. They have also lowered the price for others.
Costs of enterprise licenses, particularly the ridiculous update licenses have gone up regularly every year in the past few (we are constantly given the bum-rush to accept some new deal before prices go up again). Earlier on, I think it was about 2001 or so, prices went up sharply, something like 50% or more.
Even here in America, Microsoft Office is being sold off cheaply as the "Student Edition, only no one ever checks to see if you are a student or not. So anyone can (and do) buy it cheaply.
You clearly have never received a call from the Software Business Association. If you are relying on student licenses purchased on false pretenses, you are exposing yourself to enormous liability. Any business that does so would be mostly insane.
What you should be doing is demanding that the corrupt Democratic Party stop taking huge amounts of bribes from the Trial Lawyers Association lawyers, and stop giving these lawyers all that power to suck the blood of every single American.
If you can set your blatant ideology aside, you will note that these cases were all brought by the government against Microsoft, complete with determinations of liability for antitrust which were sustained upon appeal.
As to lawyers being given the power by Democrats to "suck the blood of every single American," I suppose I'd ask you to identify examples of same so we can view these on the merits.
Deands for $3000 an hour for doing little to no ork is simply daylight robbery. These lawyers should be put in prison for extortion, terrorism and attempted robbery.
I suppose if you want to make it up as you go along, that's just fine. Certainly, your intemperate rhetoric proves my point for me -- you clearly do not have a reasoned and balanced view on this matter.
Not a single lawyer I know earns $3,000 an hour by practicing law. For the record most lawyers, in my experience, work quite hard, much harder and for longer hours than most non-professionals.
So far as I can see, all tort reform has resulted in is the inability of ordinary Americans to have access to the courts to resolve legitimate disputes, leaving victims of medical malpractice with no recourse but simply to accept whatever the insurance company might offer, if anything. I for one, can document quite plainly that nothing has happened to my health insurance rates in past years except that they have gone up, and at a clip far exceeding the supposeldy halcyon days of tort litigation in the 70s and 80s.
This is the fundamental folly of settling an antitrust case with an actual monopolist for dollar relief, in lieu of structural relief or limitations on how such settlements will be paid for.
This is not a problem with Microsoft for doing nasty things, it is a problem with Microsoft's overreaching by using a structural monopoly power to do the nasties. They do it BECAUSE THEY CAN. If they can do those things, they can also charge more for their product, particularly if they have so weakened potential competitors that the potential competitors can no longer leverage the fact of that increase to approach the marketplace.
This fact, that damages for Microsoft's conduct will get passed along, probably with impunity, to the consumer who does not have a meaningful alternative to choose, is an argument against settling the case. But since Justice wanted to settle (after a change of administrations to a president whose warchest was well-littered with lawful donations from Microsoft), there was no real check other than the judge, whose ability to approve or disapprove the settlement is narrowly circumscribed to clearly unreasonable deals.
It's a challenge to find a non-Apple translucent window that isn't just a snippet of desktop wallpaper pasted in the background.
It wouldn't matter if you did. The patent is not directed to just any translucent windows. The application acknowledges that there exist various prior art methods to draw objects, including windows, translucently, inlcuding methods they patented years ago.
The application appears to be directed more particularly to the user interface device of having a window's translucency be a function of the amount of time that has passed since the content most recently changed.
Presumably you believe it's crippled because you have to pay for it, which I have to say I find a poor argument.
I would agree its a poor argument, but it probably wasn't the argument intended by the author. Since your presumption is likely incorrect, so then would be your conclusion.
What I think he is getting at is this: There is a free (beer) version for non-commercial use under the new system, but it is limited to single-author, single-user blogs and doesn't have all features.
In other words, he was used to an all-features MT, and now he can only "upgrade" into a more limited-features MT. Of course, he need not upgrade, or he can opt to pay for the the features in the upgraded version.
At the end of the day, I tend to agree with many of the others here. MT was the best of what was out there for free for awhile, and intertia precluded me from thinking about redoing it in a new world. Now, I have the choice of upgrading MT (which, by the way is always a chore), and hopefully sorting it quickly, and paying money. Or I can spend the money on pizza and beer while I do a convert to an equally powerful alternative.
I'm inclined to do the convert now, just for the amusement. I think MT did great stuff and they are to be commended. I guess I would agree with you as well: I'll use something else, because it probably isn't worth the money in a market with excellent free alternatives.
Even assuming the Cuckoo Egg Project was sufficient subject matter to invalidate the claim, it is not necessarily prior art. June 10, 2000 would not be a bar date for an application filed in August, 2000, provided that the inventor can file an affidavit alleging possession of the invention prior to that date.
Well, in case my message was confusing, your was even more.
No doubt. The subject is interesting enough to me that I wish I had more time to lend my response.
You answer like that kind of strange people that consider that patents on software could be motivated.
Not sure what you are saying here. Since it seems more ad hominem than substantive, I'll move on.
Lambda calculus is powerful enough to express any program, lambda calculus is math, as is logic. Math is nothing but an agreed convention about manipulating symbols.
The thrust and parry of my argument was this: so what? The fact we can derive bijective correspondences between the artifacts of two disciplines does not mean that they are identical.
This is not true, if any essential part of these programs were patented. Even though it is not trivial to find a minimal form, I claim that a minimal form exist.
Well, I think I had it right. Under Rice's theorem, it is undecidable even to enumerate "these programs." How then, exactly, do you "find a minimal form" under any complexity measure without violating fundamentals of recursive function theory. I'll pull out my copy of Rogers and get back to you.
If this form exist, and if this form would include e.g. a patented algorithm, you would not be able to express it.
Sorry, but huh?
Me: I seriously doubt you can produce in your lifetime a lambda expression that adequately models the input-output properties of a modern first-person shooter video game, which is certainly a computer program.
You:You seem not to be in computer science at all. You seem to be a lawyer or something like that, who doesn't understand programming.
First, you didn't answer the point on the merits, for obvious reasons. As to your ad hom remarks, which are non-responsive, why would it matter if I was a "lawyer or something like that, who doesn't understand programming?" Wouldn't the arguments be just as valid, or not, if spouted by my grade-school son or one of your halting-problem-immune and nearly sentient lambda expresssion generator oracles?
To be sure, I am a lawyer or something like that. I also did my doctoral work in Computer Science at Cornell, was honored with the Charles Roberts award and induction to the Computer Gaming World Hall of Fame for my work as a programmer, and quite frankly couldn't give a shit what you thought of my pedigree, when you make bullshit claims about "how I seem" instead of answering the arguments on the merits.
You mix up complexity with math.
Sure, I did, but in the same sense you seem to be distinguishing theoretical and impractical models with what people actually do. This is precisely the distinction that was addressed by the Court in the relevant cases addressing the mathematical algorithm exception, but you don't seem to know that. Perhaps you are confusing math with the law?
Why don't you go ahead, then, and give me the lambda expression corresponding to Doom, together with the model explaining how you will define a function describing a real-time animation responding to user input, and then we can talk about the merits of your analogy.
This doesn't mean that the expression doesn't exist, and I also claim that it's quite easy to find such an expression, given the program.
Sure it is. Since it is quite easy, please give me one for the Gimp, and explain how the lambda expression corresponds to what happens on my computer screen as I paint. Please prove the correspondence. Take a week. I'll look forward to seeing the results of your work.
Me:The fact of the model does not mean that the human endeavor in one field is equivalent to the human endeavor in the other.
You: This is exactly why computer programs should not be patentable. Computer programs live in a perfect world, were patents have nothing to do (but copyright is ok). But the fact of the matter is: mathem
You argue that "every program can be converted to lambda calculus which is a mathematical expression form." I'm not sure what point you are trying to make. If you are so sophisticated as to appreciate Church's thesis, you certainly appreciate that every computable function on the integers can be computed by an infinity of programs, and that there exist no computable basis for determining an optimal or cannonical programs for most ordinary measures on the function space. In other words, selection of a program is certainly, in part, a matter of expression, rather than math, at least from the perspective of the naive correspondence between a space of programs operating on integers and the lambda calculus.
And, I am not entirely satisfied that there is a great (or at least useful) sense in which the correspondence is credible to conclude that programming equates to lambda calculus. I seriously doubt you can produce in your lifetime a lambda expression that adequately models the input-output properties of a modern first-person shooter video game, which is certainly a computer program. It is EASY to show a correspondence between computer programs that compute results of integer functions and lambda expressions on the integers. The correspondence is far more attenuated for video games.
The fact of the model does not mean that the human endeavor in one field is equivalent to the human endeavor in the other. In the early twentieth century, we believed that the capacity to model most things as sets made mathematics set theory, and the capacity to model most proof systems as formal wffs and proofs made mathematics itself a subset of logic. But the fact of the matter is: mathematics IS NOT a subset of logic. While it may be so that all valid theorems can be reduced to a proof in a formal sentential calculus, I can absolutely assure you that almost NO mathematician writing proofs is "doing formal logic." Nor can we have any confidence at all (even taking into account the limitations of Godel and Russell in these models) that "doing formal logic" well could ever give us good results in the other fields.
I'm not sure where I am going with this either. Perhaps something like this: while we can almost assuredly MODEL a computer program in some formal system, this is not the same as saying that programming is the same as working the formal system.
Every novel can be recoded in a mathematical fashion as well, but writing a novel is not math. Likewise, I think, programming.
Mind you, I am NOT asserting that math does not intensely inform the art or science of programming. Indeed, a hold the precise opposite position.
My point is merely that the ability to show correspondence between entities in one arena and the other does not permit you to draw the conclusions you have drawn here, both in terms of the utility of math and the patent system. You may be right on either or both counts (and I may largely agree with you on the conclusions if more precisely stated). But the fact of the correspondence proves nothing, and doesn't really advance the argument at all.
I agree that patent reform is due, at least in two areas evident in this example:
attorney fees. There are insufficient disincentives to "roll the dice and sue anyway" in cases where noninfringement or invalidity are clear; the attorney fee awards in such cases are too rarely awarded; and
invalidity standard. While the presumption of valiidty is very sound public policy in view of the elaborate examination process of the USPTO, the presumption relies upon the demonstrably false proposition that the PTO examined all relevant art. Clearly they do not. The presumption should be relaxed from "clear and convincing" to "preponderance of the evidencee" when a defendant raises "new" art creating a substantial new question of patentability (the standard for granting reexamination). A patentee in such a case has the choice of testing the validity of new art before the PTO on reexamination, where he may amend his claims to exclude the new art, or before a judge and jury, where he may not. It creates, I think, exactly the right incentives -- pay a reexam fee BEFORE bringing forcing some sucker defendant to defend the patent -- the risk of failure is to lose a patent you might not have to have lost.
Accordingly, it is my view that prosecuting a case against art raising a substantial new question of patentability and losing, or in view of representations that the accused device is without a particular element (not merely a question of what the claim means, the meaning must be clear and the thing must not have it), and losing, should be sufficient grounds for an award of fees. Moreover, if art is asserted against a claim that raises a substantial new question of patentability, the art should be tested under a relaxed presumption of validity: the defendant still bears the burden to show invalidity, but only by a preponderance of the evidence.
If we want to limit the scope of this, we could limit this analysis to process (method) and product-by-process claims, the type of claims most likely to be subject to undiscovered or hard-to-discover "surprise" art.
The virtue of this approach is that a patentee's incentive to use the "stomp-for-nuisance-value" technique is significantly diminished. A defendant actually can harm the patentee to some extent for overreaching, while pretty much maintaining the plaintiff's proper edge in cases where the plaintiff is supposed to win.
The attitude is "it's too hard for me to learn/adapt to this software," so it sucks.
Actually, the criticism the author in the article levied was, I think, substantially deeper. (For my part, I am an artist-naif, I work in Gimp primarily becuase my lack of skills on that front doesn't justify my dropping more than a dime on graphics software.)
But let's assume that this "attitude" was all she raised. Guess what, she's right! The user drives the utility of the code. If the code is too hard to leearn to use or (ugh) adapt to, it sucks, and it won't stop sucking until it improves.
However, the attitude expressed here more than ratifies some of the recent criticisms levied against OSS, adressed by ESR and others -- open sourcers certainly appear to care less about usability than depth and multiplicity of function, a design model that has long been discarded by the marketplace. Not because the market customers are dumb, mind you, because unusable software isn't used, unreachable, unreliable or undocumnted features aren't used -- they aren't accessible, so they don't exist.
Being free in Open Source means these people don't take learning the software seriously, since it didn't cost them anything, so it's safe to discard it.
I suppose reasonable people may differ with the conclusion you draw here. To me, it doesn't seem that these people -- THE SERIOUS USERS SUCH AS THE AUTHOR OF THE CAPTIONED ARTICLE -- didn't take LEARNING the software seriously, but came to the reasonable conclusion that she shouldn't take the software itself seriously.
If we as open source developers don't get with it, we will evolve into irrelevance. Trust me, free isn't enough. Much of our free software, as much of the for-profit software, isn't worth what we pay for it. And in view of thse comments, if WE don't take ourselves or our own software seriously, why should she?
We must undertake to improve that, or it is WE who suck.
Read that again. Once more. Think about what you are saying.
Consider the degree of difficulty necessary to achieve making something that is free a "great deal."
If we in the open source community are to satifsfy ourselves with having given value by creating something that doesn't have negative utlility, then its time for us to stop the madness entirely.
We must do great work with our energies, or spend the time doing something else. Imagine that Steve Jobs or the corporate slavedriver of your choice were constantly riding you to make "art rather than crap." Imagine that your livelihood depended on making it great, and that you were worthless if it weren't. Otherwise, don't bother.
Anything less, and you are a poser wannabe.
Sorry, I don't buy it. Nothing we do is a "great deal" because its free. It should be a great deal at any reasonable price, and an astonishing piece of wonder because it is free (both in terms of price and liberty).
And for the record, that reviewer paid for the software, and found it wanting at any price. It had negative utility for her, and frankly, that sucks -- notwithstanding the wonder and excellence of the effort.
Its ok to say, "hey, that's not for you, sorry it didn't work out for you." But to say, "hey, its free, what did you expect?" Sorry, it just ain't the hacker ethic.
My answer, "so what? who cares?" was intended to observe that piracy has always been present, and likely always will be. The fact that someone will defang copypro technology doesn't make it useless, the fact that someone will steal and redistribute content doesn't make the content valueless. For those people, we have laws to shut things down.
But for honest folks, the copypro does a fine job of preserving the marketplace. If the market doesn't desire it, they will respond in kind and remove it -- as happened with copypro code-wheels and disk-based protection on computer games in the 80s. If the market is basically indifferent, and just wants convenient and inexpensive access to a broad range content, then outlfits like iTMS will prosper.
No, possession of lock picks actually triggers criminal responsibility in some -- certainly not all -- states. Unlicensed possession in others.
And there are plenty of crimes for which mere possession is a crime. The analogy wars fail, at least, to provide a clear and persuasive response.
(I have pointed out in the past that mere possession needn't constitute a crime everywhere in lobbying against this legislation. I'm here to tell you that the argument does not win the day, at least when you measure votes in Congress.)
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Orrin Hatch, is moving to outlaw P2P entirely by making it illegal to produce such applications.
No doubt he would like that result, which failed in previous attempts to legislate regulation out of existence, such as the several forms of technology regulation previously advocated by Hollings. But that was not to be.
In any case, S. 2560 does not address production of P2P applications, but rather, the inducement of infringement by a third party. Some background is in order to understand the difference.
DIRECT INFRINGEMENT. Really, the question is when should a person be liable for infringement? One easy answer: when she infringes! Did Sarah infringe a copyright when she reproduced, distributed or made copies of a copyrighted work without consent or any other defense? If so, Sarah needs a lawyer. O/W, she isn't an infringer.
INDIRECT INFRINGEMENT. But then, couldn't Sarah avoid infringement altogether by instructing her employee, Julia, to make the copies for her? Nope! Even though Sarah herself committed no infringing acts (reproducing, distribution or derivation), Sarah engaged in conduct that gives rise to a kind of liability, the genus of which is variously called, indirect, secondary or derivative infringement. There cannot be any kind of secondary liability unless and until some third party actually infringes. Then, the question is when is Sarah liable for Julia's infringement, even though Sarah did not herself commit a prohibited act?
INDIRECT: VICARIOUS INFRINGEMENT. The particular species of secondary liability in the Sarah/Julia example is called "vicarious liability," and it derives from the fact that she controlled (in her capacity as employer) the conduct of Julia, directed the infringement and then enjoyed a financial benefit from that control. It is a well-settled idea in copyright law, and offers nothing new to this discussion, except to understand some of what follows.
INDIRECT: CONTRIBUTORY INFRINGEMENT. Now, what if Sarah didn't ask an employee about this, but new that Sleazy Sammy will take just about any work left in plain sight to infringe? Now, Sarah, knowing SS is going to do the deed, advertently places the copy in a location to facilitate the infringement. This now is the classic example of contributing to the infringement of another. (The classical example is leaving a print of a movie in a place for someone to pirate from.)
So, there you go. Acts of direct infringement by Sarah, she loses. If some third party, either Julia or SS infringe, Sarah might still be liable if she is vicariously responsible or if she contributed to the infringement. Proof of secondary liability is usually trickier, and requires proofs of scienter and financial benefit from the conduct, but varies somewhat, depending on the circuit.
NOW, the copying machine cases. Assume Sarah doesn't even HAVE a copy of the Paul, the plaintiff's, work. However, Sarah makes this really neat new movable type printing press, that can be used to reproduce and facilitate distribution of Paul's stuff. The question is whether Sarah can be liable for Carla Customer's use of the printing press to infringe Paul's work. (Once again, we assume that Carla DID THE DEED, and has no defenses. If she didn't infringe or has no defenses, then Sarah is always off the hook.)
This was a hot issue for awhile, that seemed to be raised by someone literally every time a new duplication or distribution technology is produced, from the player piano, to the radio, to the audio tape machine, to the television, to the video tape machine, to the DAT machines until today, with P2P filesharing technology. Allegations are old news. But what of the law? The problems are that the cost of suing a mass market of customers is often great, but liability creates a risk of deterring the development of useful and important technologies.
Well, the principal case here was the Sony Betamax case, in which the movie studios sued Sony for manufacturing a video-tape recor
WhenU filed suit in April asking for an injunction, and this judge has decided that their claim of abridging their First Amendment Rights has enough merit to issue the injunction. What about our rights not to have to deal with this scumware?
Amazing how we shift so fluidly from First Amendment absolutism to geek-made exceptions and balancing with other rights. Get it? The First Amendment is hard, both intellectually and substantively. No intuition or sense of justice can properly guide Justice's constructions of the words "no law" as applied to the vast range of First Amendment cases. And no intuition or sense of justice will not, on occasion, be reviled as we are offended and in other cases hurt by the practice of others under the First Amendment.
It certainly may be arguable whether there is a first amendment interest in publishing software, and as to the distinction between expression and conduct found therein. But as you formulate your knee-jerk responses, recognize that these rules must apply with equal force to all applications of the law and, in particular, to all applications of software.
In my view, there is adequate protection from Spyware under provisions of the various computer crime laws. I also think there is probably a sound "no first amendment implicated" argument to be made here.
But don't for a minute think that the analysis will begin, in any intelligent forum, along the lines of: "You claim First Amendment Rights? What about my _______ Rights?" That's just not the way it works, at least with the First Amendment.
Blackberry attacked on both noninfringement and invalidity on summary judgment, and lost. They went to trial on both issue, and lost. They argued against injunctive relief, and lost.
So the patent is certainly sufficient to pass the smell-test.
They are now before the Federal Circuit to determine whether the court errred below, Blackberry's last gasp to survive.
time will tell whether the plaintiff will prevail at this point, but overreaching, after a full trial on the merits? you have got to be an ideologue even to ask the question.
The problem with the English Rule is that it dramatically increases the nuisance value for a well-monied plaintiff suing a moderate or poorly-monied defendant. The defendant, even with a meritorious case, is far more likely to cave.
Sure, when a company asserts an absolutely meritless patent action against an individual who is capable of bringing a case all the way through trial (or summary judgment) and appeals, an English Rule approach will do justice, and might arguably deter bad acting conduct. On the other hand, when does this really, really happen? What individual can shell out the million or two necessary for her defense?
On the other hand, when a company asserting a probably meritless patent action against a nice mid-sized company. The damages asserted are wildly out-of-touch with reality, but the risk of losing on the downstroke, even where the plaintiff gets a third what they were demanding, means an award of plaintiff's fees, and a million or two kicker, under the English Rule. Accordingly, the defendant has literally NO poker hand to play at the settlement conference.
This is the experience with the Copyright Act, which has an almost dead-nuts lock fee-shifting rule for prevailing plaintiffs, with a pretty-good-chance-but-not-a-lock-shot of getting fees for defendant. The plaintiffs are all over the defendant with even a so-so case, and have little reason in practice to settle reasonably. The more unbalanced the respectice resources of the parties, the worse it is.
THEN, we consider the plight of the little-guy-as-plaintiff-with-a-meritorious-case. This poor shmuck now faces the choice of walking away from a solid claim, or risking personal financial anhialation if he is wrong or lawyerly outmatched.
Since few cases are ever clear, the English rule for IP has the salutary effect of reducing cases brought against defendants. However, it is the poor shmucks who lose out in almost every case. The advantage for the well-heeled is much greater, a story that we don't need here, where the well-heeled have already too much clout. In practice, a poorly monied plaintiff with a great case can consider sharing a piece of the result with a contingency lawyer under the US rule. Under the English Rule, the economics change dramatically.
All rules of general application are bad rules for particular instances, until you consider the consequences. Fee-shifting is no exception. STAC would likely never have gotten its multi-million dollar result against Microsoft under an English Rule approach, while powerful and monied plaintiffs would still be bullying individual and small companies.
when you rely on free legal advice. These disclaimers ARE material, and important in appropriate circumstances, although not for any of the reasons considered i the article. I can think of two principal reasons for using disclaimers along the lines of "this is secret or privileged and may not be for you -- if it isn't don't read it and return it without reading further. thanks":
1) to PRESERVE (not to create) privilege in the case of inadvertent discovery; and
2) to PRESERVE (not to create) liability against subsequent use or disclosure of trade secret materials.
The problem is this: we send or copy e-mails to the wrong guy by accident, not with great frequency, but often enough. This isn't always avoidable, and may well be inadvertent. In such a case, there are two serious consequences: loss of ALL PRIVILEGES of attorney-client communications or work product material by waiver; and loss of trade secrecy in inadvertently disclosed matter.
The cases are clear enough: a reasonable notice or disclaimer, while not itself sufficient to survive an inadvertent discovery, is necessary to fix the problem. For one, a lawyer who knowingly reads the improper matter has committed an ethical breach, and whether or not knowingly, may expose himself to disqualification from representing his client in that matter or worse. Moreover, inadvertent discovery can save privilege, even when sent to opposing counsel, with an appropriate disclaimer.
As to trade secrets, the issue is less clear. While it is unlikely that the reading of the e-mail, even if willful, would itself constitute a misappropriation of a secret for acquiring by "wrongful means," the message would probably suffice to limit subsequent use or disclosure, since the reader would "know or should have known" about its secrecy. There would always be other issues, but the presence of a disclaimer would be a welcome fact in the instance of an excused or inadvertent disclosure.
Of course, putting the message AT THE END OF THE E-MAIL is insane. In our offices, the disclaimer is always at the beginning.
I know that file sharing of unlicensed copyrighted works is illegal, but the practice of threatening lawsuits left and right still bothers me. As many of you are aware, a number of the people already sued did not have the financial ability to fund a lawyer even if they wanted to. The question is, what happens if a company (like DirecTV mentioned here) starts blanket suing for something that is not necessarily illegal? These corporations have deep pockets, and they could threaten to sue the crap out of you for looking at them cock-eyed, to which many people would have to settle out of court (I'm not being literal). If you can't afford a lawyer then what do you do? 'Admit' to wrong-doing you didn't committ? Again, I realize that a lot of file sharing IS illegal, but the whole blanket lawsuit thing does raise some interesting (or scary?) questions.
A prevailing defendant in a copyright infringement action has an excellent chance of recovering his attorney fees, particularly where the plaintiff is engaging in shotgun litigation. A corporation that is doing massive, but unjustified, litigation abuse is exposing itself to a class action.
Also, in a copyright action, an offer of judgment can be made to assure an award of fees even if you lose, but the plaintiff does not get more than what they seek. Most people who can afford a computer can afford sufficient legal fees, at least, to get to that point. If the case is not worth more on the merits, the corporation and lawyers are exposing themselves to significantly more costs than they can ever recover by litigation abuse.
In this case, let's remember how you began: the file sharing is illegal. The defendants may not have done the deed, but if they did, they have infringed and are subject to statutory damages. While I appreciate the hypothetical of the nasty company attempting to abuse individuals by litigation (and there are situations vice-versa as well!), this is not such a case.
The alternative to individual actions is more technology regulation like the Napster case, where the people who make computers, networks and file-sharing services that can be used for legitimate purposes are held accountable. Suing actual infringers is probably the right thing to do.
But Motions for Summary Judgment aren't trivial to obtain. The standard is quite high. The moving party bears the burden to suggest the absence of any triable question of material fact and entitlement to relief as a matter of law.
After that, the burden shifts to the non-moving party to introduce record evidence that raises a genuine question of material fact. More than a bare minimum showing is necessary, but not much at all. Every reasonable inference goes to the non-moving party.
SCO will have to put up something at last, but they don't need to show their entire hand to survive this motion, and very little is required for them to survive. Don't be surprised to feel a bit queasy as you see little more than a hand-wave or two from SCO with pointers to record evidence, and then the judge saying, well, that's a question for the fact-finder to decide in a technical case.
All you need to do is obsolete the software. Produce an open-source version of the system -- make it available to the students.
Hell, make an open-source word processor that will show the student his grade before he submits the paper!
See how fast they recede from relying on automation.
Want to know how the system works, or how it was built? That's what open records act statutes are for!
Make this a nightmare for them, and watch them squirm. It would be fun and, more important, we might make a pedagogical tool out of their laziness -- a tool students can use to IMPROVE their writing!
It is NOT cheating to use a grading word-processor, any more than it is cheating to use a calculator.
Why, preytell, have there been no petitions to have SCOs lawyers disbarred yet?
Perhaps because there are no grounds for disbarring them. Overreaching and intemperate language may feel good, but does a world of hurt before those who either have not solidified their views or must judge them.
Confidentiality is not a privilege that would preclude discovery, although you can seek a protective order to protect the confidential or trade secret uses by the other party beyond the scope of the lawsuit. Attorney/client privilege or the like can be such a ground, but not mere confidentiality or sensitivity of the information.
This will not appear to the court to be a nutsy overburdensome subpoena -- the Court will not treat a handwave attempt to quash it with great favor. The subject matter of the requests is not necessarily privileged, and in cases that privilege is waived, may be obtained even if they are. The process is to request the documents relevant to the cause of action.
The responding party may object on grounds of privilege or relevance, and either seek a protective order or defend if a motion to compel is filed. They may be asked to produce a privilege log, identifying unprivileged aspects of communications if privileged, at which time the court may either decide the question or view the documents "in camera" (by themselves) to decide the discovery dispute.
Lawyers are for the most part a bunch of blood sucking leeches, not at all untersted in the truth, and hell bent on sucking the life blood out of as many Americans as possible.
I suggested that the author might have been more significantly motivated by a blind ideological view of both lawyers and practice. Cogito Ergo Sum.
His repeated personal attacks require no further response.
Show me just ONE example of Microsoft actually increasing prices in the past few years.
Microsoft has raised the prices of various products and services over the past five years, as any trivial google search will reveal. They have also lowered the price for others.
Costs of enterprise licenses, particularly the ridiculous update licenses have gone up regularly every year in the past few (we are constantly given the bum-rush to accept some new deal before prices go up again). Earlier on, I think it was about 2001 or so, prices went up sharply, something like 50% or more.
Even here in America, Microsoft Office is being sold off cheaply as the "Student Edition, only no one ever checks to see if you are a student or not. So anyone can (and do) buy it cheaply.
You clearly have never received a call from the Software Business Association. If you are relying on student licenses purchased on false pretenses, you are exposing yourself to enormous liability. Any business that does so would be mostly insane.
What you should be doing is demanding that the corrupt Democratic Party stop taking huge amounts of bribes from the Trial Lawyers Association lawyers, and stop giving these lawyers all that power to suck the blood of every single American.
If you can set your blatant ideology aside, you will note that these cases were all brought by the government against Microsoft, complete with determinations of liability for antitrust which were sustained upon appeal.
As to lawyers being given the power by Democrats to "suck the blood of every single American," I suppose I'd ask you to identify examples of same so we can view these on the merits.
Deands for $3000 an hour for doing little to no ork is simply daylight robbery.
These lawyers should be put in prison for extortion, terrorism and attempted robbery.
I suppose if you want to make it up as you go along, that's just fine. Certainly, your intemperate rhetoric proves my point for me -- you clearly do not have a reasoned and balanced view on this matter.
Not a single lawyer I know earns $3,000 an hour by practicing law. For the record most lawyers, in my experience, work quite hard, much harder and for longer hours than most non-professionals.
So far as I can see, all tort reform has resulted in is the inability of ordinary Americans to have access to the courts to resolve legitimate disputes, leaving victims of medical malpractice with no recourse but simply to accept whatever the insurance company might offer, if anything. I for one, can document quite plainly that nothing has happened to my health insurance rates in past years except that they have gone up, and at a clip far exceeding the supposeldy halcyon days of tort litigation in the 70s and 80s.
This is the fundamental folly of settling an antitrust case with an actual monopolist for dollar relief, in lieu of structural relief or limitations on how such settlements will be paid for.
This is not a problem with Microsoft for doing nasty things, it is a problem with Microsoft's overreaching by using a structural monopoly power to do the nasties. They do it BECAUSE THEY CAN. If they can do those things, they can also charge more for their product, particularly if they have so weakened potential competitors that the potential competitors can no longer leverage the fact of that increase to approach the marketplace.
This fact, that damages for Microsoft's conduct will get passed along, probably with impunity, to the consumer who does not have a meaningful alternative to choose, is an argument against settling the case. But since Justice wanted to settle (after a change of administrations to a president whose warchest was well-littered with lawful donations from Microsoft), there was no real check other than the judge, whose ability to approve or disapprove the settlement is narrowly circumscribed to clearly unreasonable deals.
It's a challenge to find a non-Apple translucent window that isn't just a snippet of desktop wallpaper pasted in the background.
It wouldn't matter if you did. The patent is not directed to just any translucent windows. The application acknowledges that there exist various prior art methods to draw objects, including windows, translucently, inlcuding methods they patented years ago.
The application appears to be directed more particularly to the user interface device of having a window's translucency be a function of the amount of time that has passed since the content most recently changed.
Presumably you believe it's crippled because you have to pay for it, which I have to say I find a poor argument.
I would agree its a poor argument, but it probably wasn't the argument intended by the author. Since your presumption is likely incorrect, so then would be your conclusion.
What I think he is getting at is this: There is a free (beer) version for non-commercial use under the new system, but it is limited to single-author, single-user blogs and doesn't have all features.
In other words, he was used to an all-features MT, and now he can only "upgrade" into a more limited-features MT. Of course, he need not upgrade, or he can opt to pay for the the features in the upgraded version.
At the end of the day, I tend to agree with many of the others here. MT was the best of what was out there for free for awhile, and intertia precluded me from thinking about redoing it in a new world. Now, I have the choice of upgrading MT (which, by the way is always a chore), and hopefully sorting it quickly, and paying money. Or I can spend the money on pizza and beer while I do a convert to an equally powerful alternative.
I'm inclined to do the convert now, just for the amusement. I think MT did great stuff and they are to be commended. I guess I would agree with you as well: I'll use something else, because it probably isn't worth the money in a market with excellent free alternatives.
As reasonable as that might seem, it would have no bearing on the case.
Even assuming the Cuckoo Egg Project was sufficient subject matter to invalidate the claim, it is not necessarily prior art. June 10, 2000 would not be a bar date for an application filed in August, 2000, provided that the inventor can file an affidavit alleging possession of the invention prior to that date.
Well, in case my message was confusing, your was even more.
No doubt. The subject is interesting enough to me that I wish I had more time to lend my response.
You answer like that kind of strange people that consider that patents on software could be motivated.
Not sure what you are saying here. Since it seems more ad hominem than substantive, I'll move on.
Lambda calculus is powerful enough to express any program, lambda calculus is math, as is logic. Math is nothing but an agreed convention about manipulating symbols.
The thrust and parry of my argument was this: so what? The fact we can derive bijective correspondences between the artifacts of two disciplines does not mean that they are identical.
This is not true, if any essential part of these programs were patented. Even though it is not trivial to find a minimal form, I claim that a minimal form exist.
Well, I think I had it right. Under Rice's theorem, it is undecidable even to enumerate "these programs." How then, exactly, do you "find a minimal form" under any complexity measure without violating fundamentals of recursive function theory. I'll pull out my copy of Rogers and get back to you.
If this form exist, and if this form would include e.g. a patented algorithm, you would not be able to express it.
Sorry, but huh?
Me: I seriously doubt you can produce in your lifetime a lambda expression that adequately models the input-output properties of a modern first-person shooter video game, which is certainly a computer program.
You:You seem not to be in computer science at all. You seem to be a lawyer or something like that, who doesn't understand programming.
First, you didn't answer the point on the merits, for obvious reasons. As to your ad hom remarks, which are non-responsive, why would it matter if I was a "lawyer or something like that, who doesn't understand programming?" Wouldn't the arguments be just as valid, or not, if spouted by my grade-school son or one of your halting-problem-immune and nearly sentient lambda expresssion generator oracles?
To be sure, I am a lawyer or something like that. I also did my doctoral work in Computer Science at Cornell, was honored with the Charles Roberts award and induction to the Computer Gaming World Hall of Fame for my work as a programmer, and quite frankly couldn't give a shit what you thought of my pedigree, when you make bullshit claims about "how I seem" instead of answering the arguments on the merits.
You mix up complexity with math.
Sure, I did, but in the same sense you seem to be distinguishing theoretical and impractical models with what people actually do. This is precisely the distinction that was addressed by the Court in the relevant cases addressing the mathematical algorithm exception, but you don't seem to know that. Perhaps you are confusing math with the law?
Why don't you go ahead, then, and give me the lambda expression corresponding to Doom, together with the model explaining how you will define a function describing a real-time animation responding to user input, and then we can talk about the merits of your analogy.
This doesn't mean that the expression doesn't exist, and I also claim that it's quite easy to find such an expression, given the program.
Sure it is. Since it is quite easy, please give me one for the Gimp, and explain how the lambda expression corresponds to what happens on my computer screen as I paint. Please prove the correspondence. Take a week. I'll look forward to seeing the results of your work.
Me:The fact of the model does not mean that the human endeavor in one field is equivalent to the human endeavor in the other.
You: This is exactly why computer programs should not be patentable. Computer programs live in a perfect world, were patents have nothing to do (but copyright is ok).
But the fact of the matter is: mathem
You argue that "every program can be converted to lambda calculus which is a mathematical expression form." I'm not sure what point you are trying to make. If you are so sophisticated as to appreciate Church's thesis, you certainly appreciate that every computable function on the integers can be computed by an infinity of programs, and that there exist no computable basis for determining an optimal or cannonical programs for most ordinary measures on the function space. In other words, selection of a program is certainly, in part, a matter of expression, rather than math, at least from the perspective of the naive correspondence between a space of programs operating on integers and the lambda calculus.
And, I am not entirely satisfied that there is a great (or at least useful) sense in which the correspondence is credible to conclude that programming equates to lambda calculus. I seriously doubt you can produce in your lifetime a lambda expression that adequately models the input-output properties of a modern first-person shooter video game, which is certainly a computer program. It is EASY to show a correspondence between computer programs that compute results of integer functions and lambda expressions on the integers. The correspondence is far more attenuated for video games.
The fact of the model does not mean that the human endeavor in one field is equivalent to the human endeavor in the other. In the early twentieth century, we believed that the capacity to model most things as sets made mathematics set theory, and the capacity to model most proof systems as formal wffs and proofs made mathematics itself a subset of logic. But the fact of the matter is: mathematics IS NOT a subset of logic. While it may be so that all valid theorems can be reduced to a proof in a formal sentential calculus, I can absolutely assure you that almost NO mathematician writing proofs is "doing formal logic." Nor can we have any confidence at all (even taking into account the limitations of Godel and Russell in these models) that "doing formal logic" well could ever give us good results in the other fields.
I'm not sure where I am going with this either. Perhaps something like this: while we can almost assuredly MODEL a computer program in some formal system, this is not the same as saying that programming is the same as working the formal system.
Every novel can be recoded in a mathematical fashion as well, but writing a novel is not math. Likewise, I think, programming.
Mind you, I am NOT asserting that math does not intensely inform the art or science of programming. Indeed, a hold the precise opposite position.
My point is merely that the ability to show correspondence between entities in one arena and the other does not permit you to draw the conclusions you have drawn here, both in terms of the utility of math and the patent system. You may be right on either or both counts (and I may largely agree with you on the conclusions if more precisely stated). But the fact of the correspondence proves nothing, and doesn't really advance the argument at all.
Accordingly, it is my view that prosecuting a case against art raising a substantial new question of patentability and losing, or in view of representations that the accused device is without a particular element (not merely a question of what the claim means, the meaning must be clear and the thing must not have it), and losing, should be sufficient grounds for an award of fees. Moreover, if art is asserted against a claim that raises a substantial new question of patentability, the art should be tested under a relaxed presumption of validity: the defendant still bears the burden to show invalidity, but only by a preponderance of the evidence.
If we want to limit the scope of this, we could limit this analysis to process (method) and product-by-process claims, the type of claims most likely to be subject to undiscovered or hard-to-discover "surprise" art.
The virtue of this approach is that a patentee's incentive to use the "stomp-for-nuisance-value" technique is significantly diminished. A defendant actually can harm the patentee to some extent for overreaching, while pretty much maintaining the plaintiff's proper edge in cases where the plaintiff is supposed to win.
The attitude is "it's too hard for me to learn/adapt to this software," so it sucks.
Actually, the criticism the author in the article levied was, I think, substantially deeper. (For my part, I am an artist-naif, I work in Gimp primarily becuase my lack of skills on that front doesn't justify my dropping more than a dime on graphics software.)
But let's assume that this "attitude" was all she raised. Guess what, she's right! The user drives the utility of the code. If the code is too hard to leearn to use or (ugh) adapt to, it sucks, and it won't stop sucking until it improves.
However, the attitude expressed here more than ratifies some of the recent criticisms levied against OSS, adressed by ESR and others -- open sourcers certainly appear to care less about usability than depth and multiplicity of function, a design model that has long been discarded by the marketplace. Not because the market customers are dumb, mind you, because unusable software isn't used, unreachable, unreliable or undocumnted features aren't used -- they aren't accessible, so they don't exist.
Being free in Open Source means these people don't take learning the software seriously, since it didn't cost them anything, so it's safe to discard it.
I suppose reasonable people may differ with the conclusion you draw here. To me, it doesn't seem that these people -- THE SERIOUS USERS SUCH AS THE AUTHOR OF THE CAPTIONED ARTICLE -- didn't take LEARNING the software seriously, but came to the reasonable conclusion that she shouldn't take the software itself seriously.
If we as open source developers don't get with it, we will evolve into irrelevance. Trust me, free isn't enough. Much of our free software, as much of the for-profit software, isn't worth what we pay for it. And in view of thse comments, if WE don't take ourselves or our own software seriously, why should she?
We must undertake to improve that, or it is WE who suck.
considering The Gimp is free it's a GREAT DEAL!
Read that again. Once more. Think about what you are saying.
Consider the degree of difficulty necessary to achieve making something that is free a "great deal."
If we in the open source community are to satifsfy ourselves with having given value by creating something that doesn't have negative utlility, then its time for us to stop the madness entirely.
We must do great work with our energies, or spend the time doing something else. Imagine that Steve Jobs or the corporate slavedriver of your choice were constantly riding you to make "art rather than crap." Imagine that your livelihood depended on making it great, and that you were worthless if it weren't. Otherwise, don't bother.
Anything less, and you are a poser wannabe.
Sorry, I don't buy it. Nothing we do is a "great deal" because its free. It should be a great deal at any reasonable price, and an astonishing piece of wonder because it is free (both in terms of price and liberty).
And for the record, that reviewer paid for the software, and found it wanting at any price. It had negative utility for her, and frankly, that sucks -- notwithstanding the wonder and excellence of the effort.
Its ok to say, "hey, that's not for you, sorry it didn't work out for you." But to say, "hey, its free, what did you expect?" Sorry, it just ain't the hacker ethic.
My answer, "so what? who cares?" was intended to observe that piracy has always been present, and likely always will be. The fact that someone will defang copypro technology doesn't make it useless, the fact that someone will steal and redistribute content doesn't make the content valueless. For those people, we have laws to shut things down.
But for honest folks, the copypro does a fine job of preserving the marketplace. If the market doesn't desire it, they will respond in kind and remove it -- as happened with copypro code-wheels and disk-based protection on computer games in the 80s. If the market is basically indifferent, and just wants convenient and inexpensive access to a broad range content, then outlfits like iTMS will prosper.
comply with your license?
Can you identify a single, lawful use of playfair?
No, possession of lock picks actually triggers criminal responsibility in some -- certainly not all -- states. Unlicensed possession in others.
And there are plenty of crimes for which mere possession is a crime. The analogy wars fail, at least, to provide a clear and persuasive response.
(I have pointed out in the past that mere possession needn't constitute a crime everywhere in lobbying against this legislation. I'm here to tell you that the argument does not win the day, at least when you measure votes in Congress.)