Sometimes, it's necessary to demonstrate the absurdity and futility of a bad law in order to make the lawmakers (and judges) understand why it's bad.
And as a guy who has actually lobbied against technology regulation, I am here to tell you that the present "demonstration" does not evidence badness of the technology regulation. Indeed, content people use precisely these circumstances, and again, I am here to tell you it persuades, to evidence that they need the regulation as well as technology to survive.
I am well-versed in the arguments against. I am simply telling you that they do not move legislators to repeal technology regulation, and tend to the contrary, to get them to consider even stranger more desperate bills like last year's spate of "stupid Hollings bills."
Consider this -- How, exactly, does showing that you can pick a lock prove the absurdity and futility of laws making it a crime to own a lock pick? Sure, I can find counterarguments, and you can too, but none that would make men change a vote. And I'm a pretty good advocate as these things go.
make no mistake, copy-prevention is physically impossible, not just difficult
This is like observing that perfect algorithmic encryption, other than a one-time pad is impossible. So what? Who cares? Of course, I can't create a lock-and-key on my house that will keep all thieves out, all the time. So what? Who cares?
Whether or not my door can be physically manufactured to bar you forever from entry, makes it not one whit more legal for you to do so. All locks are rated, not in terms of their binary perfection, but rather in terms of the time and cost to defeat them. So what? Who cares?
You might be able to fool people into thinking you have succeeded, for a short while; but, sooner or later, your lies will catch up with you.
I suppose there are folks who are naive to think they live behind perfect locks. So what? Who cares? Where is the lie? What does it matter that technological solutions can be defeated? They are helpful, and substantially helpful to keep generally honest people honest, and stupid people (who represent most users) out. Smarter, less honest people, can of course get in any time. So what? Who cares?
For those smarter, less honest people, we have laws. Some will be smart enough to circumvent all of them and go free. Most will not.
Security is not a question of binary perfection. It is a question of doing as well as you may. Likewise with digital rights management.
There has always been piracy of musical content. Always. Some good, some bad. So what, who cares?
Just like DeCSS, playfair will be available to the less honest, smarter of us, or rebuilt by those who understand how it works. Those who think that this fact is useful have missed the point. These facts do not help our cause. To the contrary, it only helps those who insist that technology regulation, such as DMCA is required, and prevents the repeal of very bad laws.
Darn, I wish the smarter and less honest of us were just a little bit smarter about the ways of the world. For the smarter, honorable and ideologically motivated of us, such as Mr. J., we should excoriate, not praise, this sort of thing.
Our problem is that our arguments prove too much -- we demonstrate the "necessity" of the DMCAs, certainly to the satisfaction of the governments who will enforce them. The problem is NOT that there exists DRM, the problem is that the DRM is implemented and legally enforced in a manner that limits the scope of good new technology. It is that problem that WE, the technologists will have to solve -- hard or impossible it may be -- because the RIAA and MPAA certainly have no incentive to do so.
Dump your products, because you are no good at, and have no special expertise in selling them. Let others do that, while collecting license revenues for their use of the intellectual property that you acquired, albeit from others.
todays system encurage people to sue not for justice but for money alone
With all due respect,WTF are you talking about? What does it mean to "sue for justice?" In modern society, we have two forms of litigation, criminal and civil. In criminal litigation, society sues through its government to seek remedies against those who commit a crime. Those remedies take the form of incarceration and fines. In civil litigation, individuals sue for remedies due to economic harms caused by the conduct of another. Remedies are either legal (that is, money damages), or equitable (that is, an injunction from further conduct). The later is much rarer, mostly because litigation is too expensive to justify the cost of seeking only an injunction.
In that sense, why are you whining about people suing for money? That is, in fact, the ONLY reason to sue -- it is the only remedy the court has to give at the end of the day. Nothing else would make any economic sense.
It can only hurt the overall economy so i dont understand how it has survived as a system.
You make the strongest argument against your hypothesis with this conclusion. As you have observed, civil litigation has survived as a practice in every modern society on Earth today. People continue to invest in litigation, both asserting and defending, because it serves an economic purpose to do so.
It does not hurt the overall economy therefore, which is why it has survived as a system.
The bottom line, really, is to compare the presence of civil litigation
Something like PlayFair would make a fantastic test case to see how the courts draw the line between the users right to effect some means for fair use, because it's a large debate at the moment about how technological measures suppress legitimate fair use, and there's surely a fine line between the DMCA rights management provisions and the allowance for fair use that we need some enlightened opinion on - until we get that opinion we have so much FUD.
Legally, this isn't a close question. Congress enacted DMCA years ago, providing additional protection to copyrighted content that had been the subject of an "effective" protection scheme (ROT-13 might legally fit the bill, ad defined), in the form of civil and criminal penalties against circumvention of the scheme. There are some exceptions for certain kinds of encryption research and other things, but they don't apply here. Fair use is not an exception to DMCA. The constitutionality of that provision has been well-tested in the CSS cases and other DMCA cases.
The FUD here is the suggestion that the legality of DMCA had not been tested. Enlightened or not, the courts have repeatedly spoken, all the way to the Second Circuit and some other higher courts. Like it or not, agree with it or not, it is the law.
Frankly, the present case present no interesting legal issues. DMCA is a bad law, so far as policy, but it isn't bad law, in the sense that it is unenforceable. Playfair clearly violates the anticircumvention provisions, and trafficking in the code is a crime and subjects those who traffic in it to civil liability as well.
I also far prefer having iTMS to not having it. I am deeply concerned that the RIAA might pull back or drop out of their agreement with Apple. If that happens, then playfair, and all you are currently distributing it freely, are hurting the community, certainly a significant section of us, as much as you may think you are helping it.
This guy needs to read "Who moved my cheese." Get with the program, you don't own your job! Sure, the employer has made a mindloss mistake (probably) offshoring your gig, but that mistake was his to make, and not yours.
On the other hand, your employer is doing you a favor of sorts. First, he has put the writing on the wall that you face some future changes. Embrace that knowledge, and don't fight it. Find yourself another gig, pronto, and look forward to the next opportunities facing you. Second, he is paying you to be unproductive! Use the time to shop for new work and relax and enjoy it. Better to be paid to find new work than to do so from your home office on your own dime.
The point is this. it is the employer's job to give you. If he blows it, he blew it. Use the time wisely, and recognize that it could be worse -- you could simply have been given a box and a thank you, or less.
Having a computer verify thousands of cases, and printing out the result, "PROVED!," doesn't so clearly add to our confidence in the proof. Of course, the Appel program gave more information than that, but it was fundamentally a case of a human relying upon a computer printout, quite uncritically, and assuming that a fundamental theorem had been proved.
And this for a long-standing conjecture that had already been faced with plural examples of false proofs. While it was very exciting to see the "big four" fall, nobody had great confidence in the result.
We don't have any proof that programs work today. How many tiny programs had you written and run, quite confident that the code would "just work," but ultimately needing to tweak it for awhile before it kicks? And then, a few days later, running into some obscure cases, needing to revise it to keep it running?
I remember looking at that code while in grad school with an eye toward verifying it, or rewriting it with a proof-of-correctness in hand. While not shoddy code, it was no more beautifully well-written than any hacked lab code, and it did not inspire confidence that the code, when executed, would reveal fundamental truth.
What kind of precedent? Patent defense consortia have been routine practices in defending against agressive plaintiffs seeking to take fundamental control of key industry elements. When this was first raised, I pointed out the various routes to shut down an overactive plaintiff: reexamination regarding prior art, joint defense agreements and joining forces to share costs of a legal defense. All of those happened and it worked.
The fact of the action is a matter of public record, and the court record is, for the most part, available for public review except where the Court seals it. I have never seen the court seal a consent decree, although it may happen, but it still would not make private the complaint and most other court pleadings. While the terms of settlement may be confidential (and disclosing them contrary to provisions may well be a breach of that agreement), the fact of the action is not somehow hidden therefore.
Doctors and patients both have an interest in knowing about the litigation history of their counterparts. A patient complains of poor medical treatment, sues, settles and moves on to another part of the country, to deal with another doctor and another insurance company. While many patients have legitimate gripes, I for one can attest from personal experience that others are not.
Sometimes you can find out by discovery the patient's prior litigation history, and other times they lie. The bad ones, unsurprisingly, lie. Extensive investigation can disclose the lie, which pretty much nails the case, but when you don't, you have been stung, and the "professional patient" scores another scam.
For the most parts, doctors are honest and honorable, did as well as they could, and patients are honest and honorable, and were grievously harmed. Sometimes the injury was due to neglgence, other times not. Accordingly, the record of the existence of a lawsuit doesn't tell the entire story, not ever. But it is very, very useful information.
As a patient, you want to know if a doctor has a long history of being a defendant. As a doctor, you want to know if a patient has a long history of being a plaintiff. It may make your decision, or not, but it is information you would rather have at the outset of a relationship than not.
NONE OF THIS, however, is private information. While details of medical history are for the most part confidential, the existence of a plaintiff and defendant and a lawsuit are public record. It is just that clerk of court information isn't readily available to everybody.
It may not surprise you to know that for years, consortiums of plaintiff and defense attorneys have kept databases of expert witnesses, plaintiffs and defendants. The fact that the internet has made this information much cheaper and more readily available is, in my view, a very good thing.
Once again, the truth shall set you free.
The question is how the information is used. That is the issue.
It is natural to look to various issues of injustice and argue what the result should be. In practice, a seasoned lawyer will recognize that the devil is always in the details, and that the general hypothetical might well be settled either way. In the absence of a comprehensive understanding of the facts, we are just guessing.
I have learned, from extensive experience, that news reporting as to details is terribly weak. The news gets it right as to the big picture with astonishing frequency, but almost every news article I have seen published with which I had intimate familiarity with the details contains several material errors. In short, don't believe everything you read.
Note, further, that law does not always provide a civil remedy for every bad action of a person or company, even where the conduct of EB may have been a violation or a crime. It is quite possible that EB may be subject to fines or worse, but that the buyer's sole recourse would be against the thief. It may well be that EB may be subject to restitution for various forms of conversion, plus punitive damages. Who knows? The devil is in the details. Without the facts, we'd just be guessing.
Reexamination can be one of three flavors: (i) ex parte reexam, where the patentee deals with the PTO by himself, and noone else is allowed to participate, once the initial petition is acted upon; (ii) inter partes reexam, where the petitioner, but only the petitioner, can file comments at every stage; and (iii) commissioner's reexam, which is just a type of ex parte, but where the commissioner calls for reexamination.
Now, the petition basically asks the examiner to consider whether new prior art (not yet examined) raises a substantial new question of patentability (SNQP) and is not merely cumulative of stuff already considered. If the examiner finds SNQP, the petition is granted and the patent "case" is reopened.
The examiner then issues an office action in view of the new art, citing the relevant elements and rejecting those claims that are impacted thereby. This is JUST LIKE the first office action in a patent application, which routinely rejects all the claims in view of a search.
The applicant responds, either amending the claims to avoid the prior art, or arguing that the examiner was wrong, or both. The examiner then decides whether or not she buys the new arguments and either issues a notice of allowability, or a new office action (usually FINAL, which means that a new application fee must be filed or that the rejection must be appealed). Sometimes, a new, non-final rejection is issued, and the process repeats.
At the end, either every claim (possibly as amended) will be allowed (including new claims which can be filed), or every claim will be rejected, in which case the patent dies.
The news report is unsurprising. It would be very odd, almost nonsensical, for the USPTO to grant a petition finding a new question of patentability was raised by the prior art, and then to simply allow all the claims. Of COURSE there was an initial office action rejecting all or most of the claims -- they granted the petition.
This bill would allow companies to copyright databases. (Think phone-number databases) and goes directly against the idea that nobody can own a fact.
Let me make this clear: I believe the database bill to be terrible and dangerous legislation. I also believe that the technical community can be instrumental in helping to stop it.
Let me make this clear as well: If the technical community persists in their decade-long strategy of histrionic "chicken-little" screaming every time a bad bill comes out, we will once again see nothing but bad legislation pass.
This is what happened with DMCA, it is what happened with the Patriot Act changes, and it is now happening again with the database bill. Note that the database legislation was originally attached to DMCA, but withdrawn due to excellent lobbying. That can and should happen again, unless we screw up the way we did with DMCA.
Meaningless or false statement (depending how you define terms) such as the ones above serve noone but those who support the bill. The bill does not provide copyright protections (it is a different kind of right, both less and more in different ways), nor does it provide ownership of "facts."
Oh, yes. There are probably rationalizations that foolish people might proffer to defend these remarks, but by the time they have finished confusing those who do not need to be converted, they have long since lost credibility, and the attention of every relevant legislator or person who might otherwise have moved favorably from the fence.
So, please, oh please! STOP THE MADNESS. Remember the line from Apollo 13: "Gentlemen we are not going to do this, we're not going to go bouncing off the walls for ten minutes because were just going to end up right back here with the same problems."
If you are interested in this, and you should be, take the time to read the bill and learn what there is to worry about. Don't oppose it as a knee-jerk, and focus on what is wrong with the bill. Maybe it can be completely defeated, maybe not. But it will never be defeated, and like DMCA, is far more likely to be passed entirely, unless we show an intelligent, balanced and "straight-shooting" front.
The bill needs to be defeated. I assure you that remarks like the foregoing are not the way to do it.
Competition police seems to be a strong weapon against SCO-like action.
The most salient observation I have seen for some time on Slashdot. You nailed the point.
Intellectual Property, be it trademark, copyright, patent, trade secret, and the related non-IP causes of action such as anti-circumvention, create limitations and monopolies. Ideally, the monopolies are carefully limited against social needs to yield a net societal benefit, but as with all law, horrifying results can occur. IP is a core source these days of examples of unintended consequences.
While IP and pseudo-IP create monopolies sponsored by the government, the government likewise has another body of law, a different kind of trade regulation, antitrust, to keep enterprises from abusing even fairly obtained competitive advantages to the detriment of society. Like IP, the application of these laws must be careful, because fear of antitrust liability can actually result in highly anticompettive consequences to the detriment of society.
Combine that with the corpus of law governing unfair competition and deceptive trade practices more generally, and it is no surprise that when a company really goes out there, there are a kazillion conflicting policies and issues.
That is why some uses of IP can be so "out there" as to rise to anticompetitive conduct, even though the monopoly given was government-blessed. And why some anticompetitive conduct can preclude a right to assert iP.
Look for that whenever: (i) a company with significant market share throws IP weight around; (ii) a company with a fairly fought ownership of a marketplace governed by IP tries to extend their rights to non-controlled markets; and (iii) a company, though not a market leader or innovator, really stretches some IP rights they do have to control a market beyond any reasonable threshold.
Copyright does not exist in a work created by the federal government, but certainly can exist, and be owned by the federal government, if created by third parties -- even if created for or on behalf of the government.
They really should appeal. Sure it will cost a goodly sum in lawyers' fees, but the 9th Circuit (if you get the right judges) is quite liberal in terms of personal rights.
Nonsense. There is probably no less favorable forum in the United States for the defendant in a copyright-like action.
The 9th Circuit decided the Napster case.
The 9th Circuit decided the Sony Betamax case in favor of the movie studios before being reversed by the Supreme Court.
The 9th Circuit even decided that Vanna White's right to publicity was invaded by a commercial depicting a robot in a gown turning letters.
If there is a bright shiny sweet spot for owners of IP rights, and a dark nadir for balancing of the public's rights, it is the 9th Circuit.
If Varisign can tinker with DNS responses provided by their DNS, why can't every other downstream DNS server act in kind, when forwarding a query, taking the ersatz advertising responses from Varisign and substituting their own advertising website, or better yet, substitute the responsible "usual" behavior?
Indeed, if Varisign does this, wouldn's such a response be inevitable, for good and for ill?
What I will be most amused by when that happens are the frivolous lawsuits Varisign will raise when that happens.
The Patent Act provides several means by which a patent may be voided after issue. One, litigation to determine validity, is very expensive and very difficult, because of the standards of review that are applied. Another, reexamination, is substantially less expensive and the standard of review applied is substantally less onerous, although there are many reasons that an accused defendant would not use the process.
Litigation is difficult because the Patent Act provides that an issued patent is presumed to be valid. This means that the Court views all evidence through the "clear and convincing" standard of evidence (the civil law equivalent of "beyond a reasonable doubt"), and under very strict evidentiary rules (where testimonial evidence of prior uses is irrelevant unless corroborated by evidence that existed before the critical date of the patent. Moreover, exceptional (probably undue) deference is given to validity decisions made by the USPTO regarding art actually considered.
Reexamination can be done two different ways, inter partes (2 party) or ex partes (1 party). Ex partes reexam means that a petition is filed with the USPTO, citing the art and explaining why it raises a "substantial new question of patentability." (SNQP). If the PTO finds SNQP, they issue a reexam order, and the patent is examined in view of the new art forthwith and at expedited speed. No claims are presumed valid, and all art found by the examiner is fair game -- in short, it is treated by the USPTO as it was before the patent had issued. It's a "do-over," if you will, this time armed with SNQP art.
Upside of ex parte is that you are finished after you submitted the art. The downside is that you are finished after you submit the art -- you can't quibble again as the patentee argues for patentability, introduces new claims and such. You are out of the game from there on in -- it is just like initial prosecution all over again.
That's what inter partes is for. You get to "play along" with the applicant, sniping at him and arguing why both his arguments and new claims are invalid. You get to make a case, settled by the examiner, for invalidity. If you win, you can kill the patent.
The downside is that if you don't kill it, a patent that rises from reexamination, phoenix-like, may be weakened with possibly narrower claims, but is much, Much, MUCH stronger, because none of the art evaluated is going to be usable against subsequent claims. If the new claims are not so narrowed as to avoid infringement, you are pretty much left defenseless on validity grounds after the, now very angry, patentee sues your ass for infringement.
Now there is much more than I have indicated, the foregoing is super-simplified and, for that reason, not correct. if you are interested in submitting a petition for reexamination, by all means speak to an attorney before doing so.
On the other hand, this is an excellent low-cost way to kill patents in appropriate circumstances.
I think Microsoft may well have the better legal argument when this goes up on appeal, although I haven't researched the question. It is well settled that a mark, today, though not generic tomorrow, may become generic and thereby be invalidated. This "genericide" has happened to famous and world-class marks, in particular ASPRIN and SINGER.
Clearly, genericity is temporal in nature and at least for the genericide cases, it is generally genericity at the time of infringement that is measured, not the time the mark was created. Thus the question appears to be whether a mark, once generic, can become ungeneric at a later time.
And I had thought that question was also well-settled, in particular, in the SINGER case, where the mark (once people stopped calling sewing machines "singers") was held to be resurrectable.
Note that the court order certified the question for interlocutory appeal. We may see the final word on this before trial.
Its a great idea, but the law in most countries that a mark in a foreign language is still not registrable if it is merely descriptive (without acquired distinction) or generic, AS TRANSLATED.
I could probably go on, but I won't - we've never cared in the past (ok - I'm pretty sure the Colas did), but the precedents for similarly sounding names for companies and products has been with us forever... why should this one be treated differently?
Because it is different from Coca Cola v. Pepsi Cola. Every question is determined on the totality of fhe facts. Please trust me when I tell you that there are entire books written about LOC -- this isn't really a business for casual analogies -- you'll have no chance of getting it right. This is a very deep body of law, invovling the balancing of factors that vary fropm jurisdiction to jurisdiction, each facvtor having its own special body of law.
While many good TM lawyers develope a decent intuition about the matter (and my radar is upon this one), every case is very fact-specific, and it really isn't possible to simply resolve the question just from a list of marks.
The issue is not whether the word is a regular English word, it is the extent to which it is quite difficult to sell your product without reference to the word. For example, Apple for pie is generic, but Apple for computers is not only non-generic, but powerfully strong.
What is more, it is not sufficient that a mark be descriptive, even powerfully descriptive, to render it generic -- the word has to be (or become) the name for the genus -- or category of product. In other words, "International Business Machines" is descriptive, for a typerwriter, but not generic. Typewriter, on the other hand is generic.
A finding of descriptiveness will not aid the defendant against microsoft's incontestable Windows mark -- it can only be invalidated by proof of genericity.
Slashdot Mirror
Sometimes, it's necessary to demonstrate the absurdity and futility of a bad law in order to make the lawmakers (and judges) understand why it's bad.
:)
And as a guy who has actually lobbied against technology regulation, I am here to tell you that the present "demonstration" does not evidence badness of the technology regulation. Indeed, content people use precisely these circumstances, and again, I am here to tell you it persuades, to evidence that they need the regulation as well as technology to survive.
I am well-versed in the arguments against. I am simply telling you that they do not move legislators to repeal technology regulation, and tend to the contrary, to get them to consider even stranger more desperate bills like last year's spate of "stupid Hollings bills."
Consider this -- How, exactly, does showing that you can pick a lock prove the absurdity and futility of laws making it a crime to own a lock pick? Sure, I can find counterarguments, and you can too, but none that would make men change a vote. And I'm a pretty good advocate as these things go.
This doesen't help.
P.S. Thanks for the litref
make no mistake, copy-prevention is physically impossible, not just difficult
This is like observing that perfect algorithmic encryption, other than a one-time pad is impossible. So what? Who cares? Of course, I can't create a lock-and-key on my house that will keep all thieves out, all the time. So what? Who cares?
Whether or not my door can be physically manufactured to bar you forever from entry, makes it not one whit more legal for you to do so. All locks are rated, not in terms of their binary perfection, but rather in terms of the time and cost to defeat them. So what? Who cares?
You might be able to fool people into thinking you have succeeded, for a short while; but, sooner or later, your lies will catch up with you.
I suppose there are folks who are naive to think they live behind perfect locks. So what? Who cares? Where is the lie? What does it matter that technological solutions can be defeated? They are helpful, and substantially helpful to keep generally honest people honest, and stupid people (who represent most users) out. Smarter, less honest people, can of course get in any time. So what? Who cares?
For those smarter, less honest people, we have laws. Some will be smart enough to circumvent all of them and go free. Most will not.
Security is not a question of binary perfection. It is a question of doing as well as you may. Likewise with digital rights management.
There has always been piracy of musical content. Always. Some good, some bad. So what, who cares?
Just like DeCSS, playfair will be available to the less honest, smarter of us, or rebuilt by those who understand how it works. Those who think that this fact is useful have missed the point. These facts do not help our cause. To the contrary, it only helps those who insist that technology regulation, such as DMCA is required, and prevents the repeal of very bad laws.
Darn, I wish the smarter and less honest of us were just a little bit smarter about the ways of the world. For the smarter, honorable and ideologically motivated of us, such as Mr. J., we should excoriate, not praise, this sort of thing.
Our problem is that our arguments prove too much -- we demonstrate the "necessity" of the DMCAs, certainly to the satisfaction of the governments who will enforce them. The problem is NOT that there exists DRM, the problem is that the DRM is implemented and legally enforced in a manner that limits the scope of good new technology. It is that problem that WE, the technologists will have to solve -- hard or impossible it may be -- because the RIAA and MPAA certainly have no incentive to do so.
but its more like this:
Dump your products, because you are no good at, and have no special expertise in selling them. Let others do that, while collecting license revenues for their use of the intellectual property that you acquired, albeit from others.
todays system encurage people to sue not for justice but for money alone
With all due respect,WTF are you talking about? What does it mean to "sue for justice?" In modern society, we have two forms of litigation, criminal and civil. In criminal litigation, society sues through its government to seek remedies against those who commit a crime. Those remedies take the form of incarceration and fines. In civil litigation, individuals sue for remedies due to economic harms caused by the conduct of another. Remedies are either legal (that is, money damages), or equitable (that is, an injunction from further conduct). The later is much rarer, mostly because litigation is too expensive to justify the cost of seeking only an injunction.
In that sense, why are you whining about people suing for money? That is, in fact, the ONLY reason to sue -- it is the only remedy the court has to give at the end of the day. Nothing else would make any economic sense.
It can only hurt the overall economy so i dont understand how it has survived as a system.
You make the strongest argument against your hypothesis with this conclusion. As you have observed, civil litigation has survived as a practice in every modern society on Earth today. People continue to invest in litigation, both asserting and defending, because it serves an economic purpose to do so.
It does not hurt the overall economy therefore, which is why it has survived as a system.
The bottom line, really, is to compare the presence of civil litigation
Something like PlayFair would make a fantastic test case to see how the courts draw the line between the users right to effect some means for fair use, because it's a large debate at the moment about how technological measures suppress legitimate fair use, and there's surely a fine line between the DMCA rights management provisions and the allowance for fair use that we need some enlightened opinion on - until we get that opinion we have so much FUD.
Legally, this isn't a close question. Congress enacted DMCA years ago, providing additional protection to copyrighted content that had been the subject of an "effective" protection scheme (ROT-13 might legally fit the bill, ad defined), in the form of civil and criminal penalties against circumvention of the scheme. There are some exceptions for certain kinds of encryption research and other things, but they don't apply here. Fair use is not an exception to DMCA. The constitutionality of that provision has been well-tested in the CSS cases and other DMCA cases.
The FUD here is the suggestion that the legality of DMCA had not been tested. Enlightened or not, the courts have repeatedly spoken, all the way to the Second Circuit and some other higher courts. Like it or not, agree with it or not, it is the law.
Frankly, the present case present no interesting legal issues. DMCA is a bad law, so far as policy, but it isn't bad law, in the sense that it is unenforceable. Playfair clearly violates the anticircumvention provisions, and trafficking in the code is a crime and subjects those who traffic in it to civil liability as well.
I also far prefer having iTMS to not having it. I am deeply concerned that the RIAA might pull back or drop out of their agreement with Apple. If that happens, then playfair, and all you are currently distributing it freely, are hurting the community, certainly a significant section of us, as much as you may think you are helping it.
Sorry, it's not in my job description.
This guy needs to read "Who moved my cheese." Get with the program, you don't own your job! Sure, the employer has made a mindloss mistake (probably) offshoring your gig, but that mistake was his to make, and not yours.
On the other hand, your employer is doing you a favor of sorts. First, he has put the writing on the wall that you face some future changes. Embrace that knowledge, and don't fight it. Find yourself another gig, pronto, and look forward to the next opportunities facing you. Second, he is paying you to be unproductive! Use the time to shop for new work and relax and enjoy it. Better to be paid to find new work than to do so from your home office on your own dime.
The point is this. it is the employer's job to give you. If he blows it, he blew it. Use the time wisely, and recognize that it could be worse -- you could simply have been given a box and a thank you, or less.
Having a computer verify thousands of cases, and printing out the result, "PROVED!," doesn't so clearly add to our confidence in the proof. Of course, the Appel program gave more information than that, but it was fundamentally a case of a human relying upon a computer printout, quite uncritically, and assuming that a fundamental theorem had been proved.
And this for a long-standing conjecture that had already been faced with plural examples of false proofs. While it was very exciting to see the "big four" fall, nobody had great confidence in the result.
We don't have any proof that programs work today. How many tiny programs had you written and run, quite confident that the code would "just work," but ultimately needing to tweak it for awhile before it kicks? And then, a few days later, running into some obscure cases, needing to revise it to keep it running?
I remember looking at that code while in grad school with an eye toward verifying it, or rewriting it with a proof-of-correctness in hand. While not shoddy code, it was no more beautifully well-written than any hacked lab code, and it did not inspire confidence that the code, when executed, would reveal fundamental truth.
How helpful was it?
Hopefully this will set some sort of precedent ...
What kind of precedent? Patent defense consortia have been routine practices in defending against agressive plaintiffs seeking to take fundamental control of key industry elements. When this was first raised, I pointed out the various routes to shut down an overactive plaintiff: reexamination regarding prior art, joint defense agreements and joining forces to share costs of a legal defense. All of those happened and it worked.
This isn't new, it's routine.
In what days do you consider iPod to be a better implementation of preceding players?
Want to shut down a competitor? Send spam pointing to their website, and cut them off from AOL.
The fact of the action is a matter of public record, and the court record is, for the most part, available for public review except where the Court seals it. I have never seen the court seal a consent decree, although it may happen, but it still would not make private the complaint and most other court pleadings. While the terms of settlement may be confidential (and disclosing them contrary to provisions may well be a breach of that agreement), the fact of the action is not somehow hidden therefore.
Doctors and patients both have an interest in knowing about the litigation history of their counterparts. A patient complains of poor medical treatment, sues, settles and moves on to another part of the country, to deal with another doctor and another insurance company. While many patients have legitimate gripes, I for one can attest from personal experience that others are not.
Sometimes you can find out by discovery the patient's prior litigation history, and other times they lie. The bad ones, unsurprisingly, lie. Extensive investigation can disclose the lie, which pretty much nails the case, but when you don't, you have been stung, and the "professional patient" scores another scam.
For the most parts, doctors are honest and honorable, did as well as they could, and patients are honest and honorable, and were grievously harmed. Sometimes the injury was due to neglgence, other times not. Accordingly, the record of the existence of a lawsuit doesn't tell the entire story, not ever. But it is very, very useful information.
As a patient, you want to know if a doctor has a long history of being a defendant. As a doctor, you want to know if a patient has a long history of being a plaintiff. It may make your decision, or not, but it is information you would rather have at the outset of a relationship than not.
NONE OF THIS, however, is private information. While details of medical history are for the most part confidential, the existence of a plaintiff and defendant and a lawsuit are public record. It is just that clerk of court information isn't readily available to everybody.
It may not surprise you to know that for years, consortiums of plaintiff and defense attorneys have kept databases of expert witnesses, plaintiffs and defendants. The fact that the internet has made this information much cheaper and more readily available is, in my view, a very good thing.
Once again, the truth shall set you free.
The question is how the information is used. That is the issue.
It is natural to look to various issues of injustice and argue what the result should be. In practice, a seasoned lawyer will recognize that the devil is always in the details, and that the general hypothetical might well be settled either way. In the absence of a comprehensive understanding of the facts, we are just guessing.
I have learned, from extensive experience, that news reporting as to details is terribly weak. The news gets it right as to the big picture with astonishing frequency, but almost every news article I have seen published with which I had intimate familiarity with the details contains several material errors. In short, don't believe everything you read.
Note, further, that law does not always provide a civil remedy for every bad action of a person or company, even where the conduct of EB may have been a violation or a crime. It is quite possible that EB may be subject to fines or worse, but that the buyer's sole recourse would be against the thief. It may well be that EB may be subject to restitution for various forms of conversion, plus punitive damages. Who knows? The devil is in the details. Without the facts, we'd just be guessing.
Reexamination can be one of three flavors: (i) ex parte reexam, where the patentee deals with the PTO by himself, and noone else is allowed to participate, once the initial petition is acted upon; (ii) inter partes reexam, where the petitioner, but only the petitioner, can file comments at every stage; and (iii) commissioner's reexam, which is just a type of ex parte, but where the commissioner calls for reexamination.
Now, the petition basically asks the examiner to consider whether new prior art (not yet examined) raises a substantial new question of patentability (SNQP) and is not merely cumulative of stuff already considered. If the examiner finds SNQP, the petition is granted and the patent "case" is reopened.
The examiner then issues an office action in view of the new art, citing the relevant elements and rejecting those claims that are impacted thereby. This is JUST LIKE the first office action in a patent application, which routinely rejects all the claims in view of a search.
The applicant responds, either amending the claims to avoid the prior art, or arguing that the examiner was wrong, or both. The examiner then decides whether or not she buys the new arguments and either issues a notice of allowability, or a new office action (usually FINAL, which means that a new application fee must be filed or that the rejection must be appealed). Sometimes, a new, non-final rejection is issued, and the process repeats.
At the end, either every claim (possibly as amended) will be allowed (including new claims which can be filed), or every claim will be rejected, in which case the patent dies.
The news report is unsurprising. It would be very odd, almost nonsensical, for the USPTO to grant a petition finding a new question of patentability was raised by the prior art, and then to simply allow all the claims. Of COURSE there was an initial office action rejecting all or most of the claims -- they granted the petition.
This bill would allow companies to copyright databases. (Think phone-number databases) and goes directly against the idea that nobody can own a fact.
Let me make this clear: I believe the database bill to be terrible and dangerous legislation. I also believe that the technical community can be instrumental in helping to stop it.
Let me make this clear as well: If the technical community persists in their decade-long strategy of histrionic "chicken-little" screaming every time a bad bill comes out, we will once again see nothing but bad legislation pass.
This is what happened with DMCA, it is what happened with the Patriot Act changes, and it is now happening again with the database bill. Note that the database legislation was originally attached to DMCA, but withdrawn due to excellent lobbying. That can and should happen again, unless we screw up the way we did with DMCA.
Meaningless or false statement (depending how you define terms) such as the ones above serve noone but those who support the bill. The bill does not provide copyright protections (it is a different kind of right, both less and more in different ways), nor does it provide ownership of "facts."
Oh, yes. There are probably rationalizations that foolish people might proffer to defend these remarks, but by the time they have finished confusing those who do not need to be converted, they have long since lost credibility, and the attention of every relevant legislator or person who might otherwise have moved favorably from the fence.
So, please, oh please! STOP THE MADNESS. Remember the line from Apollo 13: "Gentlemen we are not going to do this, we're not going to go bouncing off the walls for ten minutes because were just going to end up right back here with the same problems."
If you are interested in this, and you should be, take the time to read the bill and learn what there is to worry about. Don't oppose it as a knee-jerk, and focus on what is wrong with the bill. Maybe it can be completely defeated, maybe not. But it will never be defeated, and like DMCA, is far more likely to be passed entirely, unless we show an intelligent, balanced and "straight-shooting" front.
The bill needs to be defeated. I assure you that remarks like the foregoing are not the way to do it.
Competition police seems to be a strong weapon against SCO-like action.
The most salient observation I have seen for some time on Slashdot. You nailed the point.
Intellectual Property, be it trademark, copyright, patent, trade secret, and the related non-IP causes of action such as anti-circumvention, create limitations and monopolies. Ideally, the monopolies are carefully limited against social needs to yield a net societal benefit, but as with all law, horrifying results can occur. IP is a core source these days of examples of unintended consequences.
While IP and pseudo-IP create monopolies sponsored by the government, the government likewise has another body of law, a different kind of trade regulation, antitrust, to keep enterprises from abusing even fairly obtained competitive advantages to the detriment of society. Like IP, the application of these laws must be careful, because fear of antitrust liability can actually result in highly anticompettive consequences to the detriment of society.
Combine that with the corpus of law governing unfair competition and deceptive trade practices more generally, and it is no surprise that when a company really goes out there, there are a kazillion conflicting policies and issues.
That is why some uses of IP can be so "out there" as to rise to anticompetitive conduct, even though the monopoly given was government-blessed. And why some anticompetitive conduct can preclude a right to assert iP.
Look for that whenever: (i) a company with significant market share throws IP weight around; (ii) a company with a fairly fought ownership of a marketplace governed by IP tries to extend their rights to non-controlled markets; and (iii) a company, though not a market leader or innovator, really stretches some IP rights they do have to control a market beyond any reasonable threshold.
Copyright does not exist in a work created by the federal government, but certainly can exist, and be owned by the federal government, if created by third parties -- even if created for or on behalf of the government.
The standard CSS license, available to anybody who will pay the fee and accept the conditions, would not permit 321 to sell their software.
They really should appeal. Sure it will cost a goodly sum in lawyers' fees, but the 9th Circuit (if you get the right judges) is quite liberal in terms of personal rights.
Nonsense. There is probably no less favorable forum in the United States for the defendant in a copyright-like action.
The 9th Circuit decided the Napster case.
The 9th Circuit decided the Sony Betamax case in favor of the movie studios before being reversed by the Supreme Court.
The 9th Circuit even decided that Vanna White's right to publicity was invaded by a commercial depicting a robot in a gown turning letters.
If there is a bright shiny sweet spot for owners of IP rights, and a dark nadir for balancing of the public's rights, it is the 9th Circuit.
If Varisign can tinker with DNS responses provided by their DNS, why can't every other downstream DNS server act in kind, when forwarding a query, taking the ersatz advertising responses from Varisign and substituting their own advertising website, or better yet, substitute the responsible "usual" behavior?
Indeed, if Varisign does this, wouldn's such a response be inevitable, for good and for ill?
What I will be most amused by when that happens are the frivolous lawsuits Varisign will raise when that happens.
The Patent Act provides several means by which a patent may be voided after issue. One, litigation to determine validity, is very expensive and very difficult, because of the standards of review that are applied. Another, reexamination, is substantially less expensive and the standard of review applied is substantally less onerous, although there are many reasons that an accused defendant would not use the process.
Litigation is difficult because the Patent Act provides that an issued patent is presumed to be valid. This means that the Court views all evidence through the "clear and convincing" standard of evidence (the civil law equivalent of "beyond a reasonable doubt"), and under very strict evidentiary rules (where testimonial evidence of prior uses is irrelevant unless corroborated by evidence that existed before the critical date of the patent. Moreover, exceptional (probably undue) deference is given to validity decisions made by the USPTO regarding art actually considered.
Reexamination can be done two different ways, inter partes (2 party) or ex partes (1 party). Ex partes reexam means that a petition is filed with the USPTO, citing the art and explaining why it raises a "substantial new question of patentability." (SNQP). If the PTO finds SNQP, they issue a reexam order, and the patent is examined in view of the new art forthwith and at expedited speed. No claims are presumed valid, and all art found by the examiner is fair game -- in short, it is treated by the USPTO as it was before the patent had issued. It's a "do-over," if you will, this time armed with SNQP art.
Upside of ex parte is that you are finished after you submitted the art. The downside is that you are finished after you submit the art -- you can't quibble again as the patentee argues for patentability, introduces new claims and such. You are out of the game from there on in -- it is just like initial prosecution all over again.
That's what inter partes is for. You get to "play along" with the applicant, sniping at him and arguing why both his arguments and new claims are invalid. You get to make a case, settled by the examiner, for invalidity. If you win, you can kill the patent.
The downside is that if you don't kill it, a patent that rises from reexamination, phoenix-like, may be weakened with possibly narrower claims, but is much, Much, MUCH stronger, because none of the art evaluated is going to be usable against subsequent claims. If the new claims are not so narrowed as to avoid infringement, you are pretty much left defenseless on validity grounds after the, now very angry, patentee sues your ass for infringement.
Now there is much more than I have indicated, the foregoing is super-simplified and, for that reason, not correct. if you are interested in submitting a petition for reexamination, by all means speak to an attorney before doing so.
On the other hand, this is an excellent low-cost way to kill patents in appropriate circumstances.
I think Microsoft may well have the better legal argument when this goes up on appeal, although I haven't researched the question. It is well settled that a mark, today, though not generic tomorrow, may become generic and thereby be invalidated. This "genericide" has happened to famous and world-class marks, in particular ASPRIN and SINGER.
Clearly, genericity is temporal in nature and at least for the genericide cases, it is generally genericity at the time of infringement that is measured, not the time the mark was created. Thus the question appears to be whether a mark, once generic, can become ungeneric at a later time.
And I had thought that question was also well-settled, in particular, in the SINGER case, where the mark (once people stopped calling sewing machines "singers") was held to be resurrectable.
Note that the court order certified the question for interlocutory appeal. We may see the final word on this before trial.
Its a great idea, but the law in most countries that a mark in a foreign language is still not registrable if it is merely descriptive (without acquired distinction) or generic, AS TRANSLATED.
I could probably go on, but I won't - we've never cared in the past (ok - I'm pretty sure the Colas did), but the precedents for similarly sounding names for companies and products has been with us forever... why should this one be treated differently?
Because it is different from Coca Cola v. Pepsi Cola. Every question is determined on the totality of fhe facts. Please trust me when I tell you that there are entire books written about LOC -- this isn't really a business for casual analogies -- you'll have no chance of getting it right. This is a very deep body of law, invovling the balancing of factors that vary fropm jurisdiction to jurisdiction, each facvtor having its own special body of law.
While many good TM lawyers develope a decent intuition about the matter (and my radar is upon this one), every case is very fact-specific, and it really isn't possible to simply resolve the question just from a list of marks.
The issue is not whether the word is a regular English word, it is the extent to which it is quite difficult to sell your product without reference to the word. For example, Apple for pie is generic, but Apple for computers is not only non-generic, but powerfully strong.
What is more, it is not sufficient that a mark be descriptive, even powerfully descriptive, to render it generic -- the word has to be (or become) the name for the genus -- or category of product. In other words, "International Business Machines" is descriptive, for a typerwriter, but not generic. Typewriter, on the other hand is generic.
A finding of descriptiveness will not aid the defendant against microsoft's incontestable Windows mark -- it can only be invalidated by proof of genericity.