The year before the Napster decision came down, the music industry had their best year ever. The year after they shut down Napster, the business went into the tank.
Sure, cause and effect cannot be implied, but it makes you think.
This is NOT really a technology case at all, but rather an analysis of whether a publisher's license to initially publish content in a magazine in one format embodies an implied permission to republish the content in a different format without obtaining a new license from the content-maker (LEXIS/NEXIS database for searching). That issue was decided in the Supreme Court Tasini case some years ago.
Since then, publshers have resolved the "problem" simplyh by rewriting their standard agreement to clarify that it embraces electronic redistribution. The case is limited to republication of content previously licensed for publication, and has no relevance for persons who did not originally have a license to publish the content.
Korea has someone who is insane running a country with an active nuclear arsinal [sic]
Gosh, I thought that was our excuse for this intervention, that it was being run by someone insane with hidden weapons of mass destruction. The real reason we don't do it in Korea is because they will destroy, with a button, several of our key allies during the first salvo. In other words, unlike us, they pose a real nuclear deterrence, even to conventional action.
The answer is simple. We did it, not because it is right, but because we can. We also did it because vested interests that are well-placed are getting astonishingly rich while gouging the hand that feeds them, because we need to divert from the fact that Afghanistan was at best a marginally favorable result, when we needed a notoriously favorable result, and because it makes great press.
Meanwhile, American infrastructure suffers while we squander billions to destroy and rebuild Iraq's, while we (ironically) pay and get overcharged by American companies to deliver oil TO IRAQ FOR FREE, which makes the following remark:
Yes it will cost billions of dollars, but the value of an allie in the middle east is substantial. what if over the next 15 year Americans save a trillion dollar becuase of cheaper oil?
How do you figure? We have had far more steadfast allies in the middle East for decades. Iraq has proved demonstrably unstable and unreliable. Saddam, you will recall, was our ally against the Ayatollah! And I thought the reason we defended Kuwait was because it was going to be our great strategic ally?
And where do you get to trillions? How will Iraq give the US cheaper oil in a free market when they don't have to? Do you believe that we are really going to install a communist nation or a monarchy where the government will govern the oil, or will Halliburton or some other private entity feed its shareholders (.nm,n/,mas do all of our "allies" out there)? What kind of break did our friends, the Saudis, or the Kuwaitis give us to keep the price of oil down? Do you really anywhere believe that the oil will not, as a force of nature, go to the place willing to pay the highest price for it, or that they will not sell to us at market prices? How can you explain the decades of the past, all evidence to the contrary.
although "vast majority" is too great an understatement. The remark in a "West Wing" episode is brought to mind:
Muslim : Muslim Extremist::: Christian : ?
the answer was: Ku Klux Clan.
Muslim extremist, in this sense, refers to a scope of incivility, bigotry and inhumanity so great as to be no longer analogous to that of the general population. Yes, many of us share bits and pieces of bigotry, and war with them to varying degrees. But the extremism with which we too often brush all muslims, is precisely as bad as stating that, because many Chistians share some xenophobic bigotry to some extent, all wear a hood and hang people by burning crosses.
Where the #$%#$ were you when conservatives were criticizing intervention to prevent genocide in Europe?
Oh, that was because it was a Clinton administration who would benefit from general assent to "freedom at any cost."
Sure, Saddam wasn't close to tolerable as a human being, but tell me what you think about our "allies" who do the same thing, and by the way, why aren't we warring against Korea?
To pretend that higher principles drive these decisions is a joke. A few conservatives, and a few liberals, have taken consistent positions on such things, but very very few.
After decades of ignoring the virtues and benefits of liberal administration policies, because it was so inconvenient when you want to excoriate the administration, the vast majority of foxnews, dittohead clones no longer have standing to complain.
Fact is, Iraq cost Americans far more than it gained. Sure we gave Iraq a gift --and there are wonderful benefits for some, perhaps most, Iraqis, perhaps, in time, once they have an infrastructure again--, but it is the gift that keeps us giving, and it is precisely wrong in precisely the same way that all interventions are wrong.
So decide, please, are you an isolationist or an interventionist? But please don't change your mind based upon the party of the administration -- or at least, when you do, please don't accuse others of hypocrisy.
Before anyone says anything about when they actually filed it being important, the patent was filed May 20, 1999 while that Mozilla page on Chrome says it was last modified April 7, 1999.
The bar date under Section 102(b) for printed publications would be one year earlier, May 20, 1998? Got reference?
What makes you think that Germany's legal system doesn't permit routine civil discovery?
That actually happened
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First of all, its no big deal as to trade secrets. The court can enter a protective order, and in cases between competitors, can require that the discovery be "for attorney eyes only," not to be sent to the clients. Clients don't get them either, because lawyers who unlawfully disclose such matter not only lose their ticket to practice, but virtually every penny they have in the underlying civil action.
Any right to use the secret at trial is within the Court's subsequent discretion. Trade secrecy is NOT a device for avoiding civil liability.
In the case of super trade secrets, Coca Cola's secret recipe as an example, the company has a choice: they can comply with a motion to compel or they can risk contempt, which means that a bunch of corporate people will spend some time in jail, and the company will probably face summary judgment against them in the civil action. This has, in fact, happened.
You are so mistaken . . .
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this is routine discovery in a civil action. IBM is not accused by the government of a crime, for which the fifth amendment applies. Even if it were, the plaintiff would still be entitled, either to the discovery, or a directed verdict in his favor.
You better believe they can't rely on the 5th!
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Relying on the 5th in a civil action is certainly permissible: no person is required under any process of law to give testimony that may incriminate him. Incrimination in this sense, however, only means that you would be subject to a criminal prosecution, and not that you would be subject to liability.
Sometimes, a defendant faces both -- a civil action may seek damages for conduct that, in fact, is criminal. A defendant could, at least in theory, refuse to answer a question on fifth amendment grounds to avoid making an admission that would send him to jail. That is his constitutional right.
But it would be a very bad thing to do in a civil action. if you take the fifth on an ultimate question, the judge may determine as a matter of law that your answer would have been the least favorable to you, and may so instruct the jury. When people start taking the fifth in a civil action, you just won the case -- not only rhetorically, because juries will always slam-dunk you, but legally as well -- depending upon the question not answered, you might be entitled to near-immediate summary judgment or a directed verdict. You just keep asking questions going to ultimate questions, and they either answer or they don't. either way, you win.
Same rules for everyone . . .
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When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different.
Nothing here to see, move along. Seriously, let's get hysterical about the real stuff in this suit, OK?
In the United States, both parties to a civil action are permitted to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. Rule 26(b). Matter is subject to discovery if it is itself evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
To that end, parties may propund interrogatories (questions requiring written answers signed under oath), depositions, requests for documents and things, inspections of property and testing, and requests for admission. While there are limits to what can be obtained, pretty much everything relevant and not privileged is discoverable, even when it is incredibly expensive and burdensome to produce.
If a party doesn't produce it, the court may compel production by judicial order on pain of contempt or worse --the court may award sanctions and penalties, and ultimately can award sanctions that can go to the merits of the case, dismissing or awarding judgment for failure to comply.
It is and always has been the rule that a plaintiff is permitted to use discovery to compel production of smoking guns and killer evidence, even where the plaintiff (and particularly because the plaintiff) bears the burden of proof. That, by the way, is how Boies nailed Microsoft -- but for the expedient of discovery, the government probably would not have won its antitrust case.
Discovery disputes of this kind are routine in big ticket litigation. Nothing here to see, move along.
but do precious little to keep out the crooks. Finding ways to mitigate online anonymity might, in Darwinlike fashion, weed out the script kiddies, but would likely do little to keep good crackers and outright crooks from staying anonymous.
Use of disguise and false identities has been a criminal (and espionage) tool for hundreds of years, despite extensive efforts of governments to document and prevent such conduct. Why would this be any different? Except now, only the crooks will have anonymous identity . ..
By depriving crackers of anonymity, all we are doing is making it easier for crackers to exploit and beat up on its honest and innocent pray, who will no longer be anonymous.
The part about this story that gets to me is that the researcher didn't alert Microsoft before posting to a public mailing list.
Truth. But here's the problem. Microsoft's reputation for responsiveness (that is, not!) and collegiality (that is, not!) in these situations is awful. Nor does Microsoft treat those who report such problems with any degree of warmth. Having established its Chinese wall as it has, Microsoft has lost its standing to whine about non-collegiality of the world it has created.
This is the entire point about open systems, or at least openness about security -- it leverages what happens out there. Frankly, I feel more secure knowing what are the leaks, whether they are addressed or not, than I do knowing there are secret leaks out there for someone to exploit without my knowledge.
If Microsoft had a reputation: (i) for assuring that a report of a leak would be responsibly handled and escalated promptly and without agonizing pain on the part of the reporter -- who is doing Microsoft a favor; and (ii) for responsibly, promptly and professionally addressing the problem, I would feel much more sympathetic.
The problem is that they don't. Maybe they will change as they said they would. But until they do, I'd rather hear the news in time to know for what I have to watch out than to have it buried while others who have discovered the leak exploit it.
Here's the thing, it is highly unlikely that any leak that is discovered by me was discovered only by me. Others, less responsible than I, will disover a leak, find the exploit, and either keep it in their "bag of tricks," trade it or what have you. In any case, if I find it, the exploit is likely out there in someone else's hands. I'd rather know the problem than wait for the solution.
Yes, the kiddies are more likely to play if it is readily "out there." But guys, that happens anyway, one way or the other. Beside, Microsoft seems far more responsive to public leaks than private ones -- maybe this kind of report is more likely to assure that the bug will be repaired than otherwise.
You may continue to believe what you read on Slashdot all you like, but it just isn't so. Read some patents, read the citations, and note that you will find cited non-patent prior art. How do you think that gets there? By accident?
And, by the way, there are a kazillion remedies available to you if the USPTO issues a bad patent short of full-scale litigation. If you actually have killer prior art, just file for reexamination, and it would be a matter of course.
This canard, repeated in Slashdot with the frequency of a Bush press release on Fox News, just isn't the case. It does not become more true upon repetition.
Prior art is defined by statute, and the USPTO has no discretion to distinguish between patent and non-patent prior art. The USPTO searches not only the corpus of patent art, but also many commercial and generally available databases of non-patent prior art. Patent claims are frequently (and in some cases famously) refused in view of non-patent prior art.
Singificantly, if you are aware of patent prior art for a published application, there are vehicles by which you may make the art a matter of record. Finally, if a patent issues with respect to which you are aware of prior art (patent or non-patent) raising a substantial new question of patentability, you may either file yourself or bring it to the attention of the Commissioner who may, in his discretion, bring his own reexamination proceeding. Again, patents have been rescinded famously in view of non-prior art in this manner as well (Compton's for example).
As the parent noted, as would anybody who actually took the time to read the patent abstract (which apparently does NOT the original poster), this patent is for using the web as a place to migrate settings and data from one computer to another.
Anybody who reads an abstract and draws conclusions about the scope of the document deserves everything they get. Someone with a clue would know that the abstract, by regulation "will not be used for interpreting the scope of the claims."
Please, don't give us this horseshit by "reading the abstract." The claims define the patent, and the claims are informed by careful reading of the specification and the relevant prosecution history. Seriously, the legal advice offered here is absolutely hopeless.
Time will tell what is the scope of the patent -- but no fair reading of the claims may conclude that this patent covers a scope of behavior as broad as that set forth in the parent. No reading credibly informed by a review of the specification will reach that conclusion.
Just stop it, guys! If you aren't really going to bother to learn what these claims are, don't whine about them. It makes us all look silly, and takes away from those of us who ARE interested in limiting the scope of bad patents.
The GPL mindset is designed, at the very core, with the sole end goal of making the best computer program possible.
The capitalist mindset is designed, at the very core, with the sole end goal of making a bunch of money.
This is non-argument. There is no meaningful thing as a "capitalist mindset" or its "design," you are just playing with words, and you aren't being reasonable or fair about it. You don't provide serious support for your proposition that anything is "designed" to be X, what you are saying, really, is that each is "defined" to be X, and then draw your conclusions from your definitions. So what?
What if the open source software mindset were designed to provide and obtain free-for-beer software, and the good stuff were merely incidental? This is all just demagoguery, and proves nothing.
Open source has provided some of the ugliest, grotiest code i have ever seen in a production environment; and, it has also provided some of the best. The same can be said of commercial code. Similar forces operate in each "market" to permit better product to rise to the top in their own way, and to provide incentives to improve. But this has nothing to do with corresponding "mindsets" or the demagoguery of each mindset's corresponding advocates.
No argument was made here -- just a definition parsed and rehashed. It is fluffy, weak-minded, non-argument like this that marginalizes open source developers and makes it difficult for us to get traction in the real world.
Some of us produce quality code, some of us suck. Some of our works are worthy of a song, and some are worthy of a rasberry. None of this has to do with mindset. It is not because some of us "get it" and others do not. It is because some of us can code, and some of us can not. Same with commercial software.
In the early days, when titles were more sparse, we bought them all, if we could. We wanted just to see what they did, and what they could make our computer do. A box cover that showed and told was all we needed. We would play the game a bit, see that it wasn't going to involve us utterly, and set it aside, happy to know what it did, and not really feeling cheated.
I suspect, if free demos abounded, I would never have bought half of the games I paid for. Today, the market is quite different -- we are not all hobbyists anymore, prices are higher, we are mostly jaded about what are computers can do and games no longer astonish merely because they exist.
Still, I think that property -- for marginal games -- may account to some degree for this behavior.
I haven't read too deeply, but this goes back to a case from a few years ago, New York Times v. Tasini, in which an free lance author sued the Times for republishing his work in electronic form without agreement. It really has nothing to do with Amazon, its an author/publisher issue.
Authors don't always get much benefit from the publication and republication of their works beyond initial advances. Publishers, on the other hand, pull a pretty decent margin on books sold thereafter. The "feature" provides a benefit to the publisher, but not necessarily to the author, depending on his or her particular deal.
I imagine authors are looking to this as an opportunity to renegotiate terms of their publishing agreements -- the vast majority of which are adhesion contracts arising from a "take it or leave" it negotiation for their first and only published book.
The law pretty much is what it is, and the ownership of the electronic publication use rights are what they are. The deal will make commercial sense or it won't, and the facility will be available or not. The general idea is that the free market will make for the fairest arrangement between all these parties and for the benefit of the public. Time will tell.
Most book publication agreements provide the publisher only with very limited rights. I'd bet the Guild has a pretty strong legal position, but again, time will tell.
The issue is not necessarily one of piracy, nor lawsuits, but one of a blatent monopoly acting in their own interests and screwing their audence
In what way is suing someone for infringement "screwing their audience?" If they are using music they purchased, there is no risk whatsoever. If they are not using they purchased, how are they RIAA's audience?
Oh, you mean the audience of persons who like the music but won't or can't pay for it? Tell you what, I agree with you. Tell you another thing, who cares? You want to defend freeloaders and free-riders, fine. But here's the deal, this is their right -- it is also very much the right thing to do.
For years, we have been excoriating RIAA for seeking dumb-as-dirt laws to try to circumvent technology with specialized regulation that would hurt every person for every purpose. Those of us who opposed the legislation fiercely on the ground that it is anticompetitive and will compromise innovation prevailed, but one of the things we noted to do so was this: we observed that the bill isn't necessary because there are ALREADY laws to protect RIAA against music freeloaders, the Copyright Act.
So here is your choice, let them sue the wrongdoing infringeers and let them be, or suck up the fact that your computers in the future are going to have mandatory DRM of a kind that will make you unable to use your own music. One of these is inevitable -- and fighting the RIAA suits against real infringers (other than on grounds of noninfringement or true fair use) is not only irrational, its tactically quite dumb.
The public and the government will actually tolerate a benevolent monopoly for quite some time if no one complains about it. Major league baseball is a perfect example
Not. Major league baseball is an example of an entity that is exempt from the antitrust laws because it has an exemption. A trilogy of Supreme Court cases, beginning with Oliver Wendell Holmes in the twenties have sealed the deal.
Your legal services are worth what I have paid for them. Suffice it to say, we disagree. I'd be pleased to face off your arguments in court, anytime, but I have limited time to spend on it here. I have been practicing law in this arena for more than a decade, now, and with all due respect for your clear efforts to self-educate and your clear learning of what you did learn, it is equally clear that you don't know what you don't know.
"Right to use." Your argument appears to be that because the phrase "use" does not appear in Section 106, this cannot be the subject of a license. Your analysis, if true, would reverse decades of entertainment law, which uses countless phrases such as "mechanical license," "synchronization license," "transmission license" and the like." Two things are possible: (1) you are correct, and all current practice of law is wrong; or (2) you don't get it, and refuse to listen.
I will state our point of agreement. Section 106 establishes the only exclusive rights granted under the Copyright Act (although DMCA provides relief and remedies for related sets of rights that are different in kind, in particular, a right to sue against traficking and engaging in circumvention). Further, we agree that Sections 107-120 establish limtiations on those rights to the extent they are applicable.
Use Rights. Here is where we diverge. You state that there can be no license to a right to use, because the word "use" does not appear in Section 106. You are mistaken. The reproduction distribution and derivation rights you cannot deny are quite expansive, and cover a broad range of activity. An owner of a copyright is not required to gran plenary rights to reproduce, rights to make derivative works or to distribute the work -- if she wants, she may grant more restricted versions of the same, little bits and pieces of all the righs under a copyright derive. This is where things like, mechanical, syncrhonization and use rights derive -- they are placeholder terms of art for permitting some, but not plenary rights as set forth in Section 106.
You deny, citing to Section 117, the proposition that loading code into RAM for execution constitutes a form of reproduction. You miss the point: (1) Section 117 is limited to owners of a copy, and does not apply to licensees, except in certain limited circumstances; (2) it does not operate to permit plenary execution of code. The MAI, Southeastern and Apple cases settled this proposition in the 80s and 90s.
Downloading constitutes infringement. You asked me to cite cases. I did. You didn't read them, but criticized their applicability by citing comments from a web site out of context. Once again, you don't know what you don't know. You insist I am applying mere dicta from a judicial opinion. I am not, but even if I am, it is far more reliable authority than your unsupported and ipse dixit gainsay.
As a threshold matter, you seem to suggest that the reduction to a receiving party's hard disk is not a copy of the original, despite being byte for byte identical thereto, is one that will face serious scrutiny by any court who has heard it. Odd, how you seem to feel that a person who uses his eyes to draw a mental image of a work, and then paints from memory what he saw has made a copy, but somehow the digital rendition of the same is not a reproduction. Anyway, we will have to agree to disagree.
All that being said, there actually are fun, interesting and intellectually promising arguments that some sort of digital transmission right might be useful and interesting to "fill the gaps." You didn't make any of them, however. The law has been working fine, and time will tell if you are right and I am wrong.
I've got $10 saying that not one single RIAA complaint will be dismissed on the grounds you suggest. If you are right, the argument was slam dunk. Maybe the truth is more interesting than your simplistic, uninformed view of the law?
Slashdot Mirror
The year before the Napster decision came down, the music industry had their best year ever. The year after they shut down Napster, the business went into the tank.
Sure, cause and effect cannot be implied, but it makes you think.
This is NOT really a technology case at all, but rather an analysis of whether a publisher's license to initially publish content in a magazine in one format embodies an implied permission to republish the content in a different format without obtaining a new license from the content-maker (LEXIS/NEXIS database for searching). That issue was decided in the Supreme Court Tasini case some years ago.
Since then, publshers have resolved the "problem" simplyh by rewriting their standard agreement to clarify that it embraces electronic redistribution. The case is limited to republication of content previously licensed for publication, and has no relevance for persons who did not originally have a license to publish the content.
Korea has someone who is insane running a country with an active nuclear arsinal [sic]
Gosh, I thought that was our excuse for this intervention, that it was being run by someone insane with hidden weapons of mass destruction. The real reason we don't do it in Korea is because they will destroy, with a button, several of our key allies during the first salvo. In other words, unlike us, they pose a real nuclear deterrence, even to conventional action.
The answer is simple. We did it, not because it is right, but because we can. We also did it because vested interests that are well-placed are getting astonishingly rich while gouging the hand that feeds them, because we need to divert from the fact that Afghanistan was at best a marginally favorable result, when we needed a notoriously favorable result, and because it makes great press.
Meanwhile, American infrastructure suffers while we squander billions to destroy and rebuild Iraq's, while we (ironically) pay and get overcharged by American companies to deliver oil TO IRAQ FOR FREE, which makes the following remark:
Yes it will cost billions of dollars, but the value of an allie in the middle east is substantial. what if over the next 15 year Americans save a trillion dollar becuase of cheaper oil?
How do you figure? We have had far more steadfast allies in the middle East for decades. Iraq has proved demonstrably unstable and unreliable. Saddam, you will recall, was our ally against the Ayatollah! And I thought the reason we defended Kuwait was because it was going to be our great strategic ally?
And where do you get to trillions? How will Iraq give the US cheaper oil in a free market when they don't have to? Do you believe that we are really going to install a communist nation or a monarchy where the government will govern the oil, or will Halliburton or some other private entity feed its shareholders (.nm,n/,mas do all of our "allies" out there)? What kind of break did our friends, the Saudis, or the Kuwaitis give us to keep the price of oil down? Do you really anywhere believe that the oil will not, as a force of nature, go to the place willing to pay the highest price for it, or that they will not sell to us at market prices? How can you explain the decades of the past, all evidence to the contrary.
although "vast majority" is too great an understatement. The remark in a "West Wing" episode is brought to mind:
::: Christian : ?
Muslim : Muslim Extremist
the answer was: Ku Klux Clan.
Muslim extremist, in this sense, refers to a scope of incivility, bigotry and inhumanity so great as to be no longer analogous to that of the general population. Yes, many of us share bits and pieces of bigotry, and war with them to varying degrees. But the extremism with which we too often brush all muslims, is precisely as bad as stating that, because many Chistians share some xenophobic bigotry to some extent, all wear a hood and hang people by burning crosses.
Where the #$%#$ were you when conservatives were criticizing intervention to prevent genocide in Europe?
Oh, that was because it was a Clinton administration who would benefit from general assent to "freedom at any cost."
Sure, Saddam wasn't close to tolerable as a human being, but tell me what you think about our "allies" who do the same thing, and by the way, why aren't we warring against Korea?
To pretend that higher principles drive these decisions is a joke. A few conservatives, and a few liberals, have taken consistent positions on such things, but very very few.
After decades of ignoring the virtues and benefits of liberal administration policies, because it was so inconvenient when you want to excoriate the administration, the vast majority of foxnews, dittohead clones no longer have standing to complain.
Fact is, Iraq cost Americans far more than it gained. Sure we gave Iraq a gift --and there are wonderful benefits for some, perhaps most, Iraqis, perhaps, in time, once they have an infrastructure again--, but it is the gift that keeps us giving, and it is precisely wrong in precisely the same way that all interventions are wrong.
So decide, please, are you an isolationist or an interventionist? But please don't change your mind based upon the party of the administration -- or at least, when you do, please don't accuse others of hypocrisy.
Before anyone says anything about when they actually filed it being important, the patent was filed May 20, 1999 while that Mozilla page on Chrome says it was last modified April 7, 1999.
The bar date under Section 102(b) for printed publications would be one year earlier, May 20, 1998? Got reference?
Want to bet on who wins?
By the way, your document addresses a different Motion entirely, IBM's motion to compel discovery from SCO.
What makes you think that Germany's legal system doesn't permit routine civil discovery?
First of all, its no big deal as to trade secrets. The court can enter a protective order, and in cases between competitors, can require that the discovery be "for attorney eyes only," not to be sent to the clients. Clients don't get them either, because lawyers who unlawfully disclose such matter not only lose their ticket to practice, but virtually every penny they have in the underlying civil action.
Any right to use the secret at trial is within the Court's subsequent discretion. Trade secrecy is NOT a device for avoiding civil liability.
In the case of super trade secrets, Coca Cola's secret recipe as an example, the company has a choice: they can comply with a motion to compel or they can risk contempt, which means that a bunch of corporate people will spend some time in jail, and the company will probably face summary judgment against them in the civil action. This has, in fact, happened.
this is routine discovery in a civil action. IBM is not accused by the government of a crime, for which the fifth amendment applies. Even if it were, the plaintiff would still be entitled, either to the discovery, or a directed verdict in his favor.
Relying on the 5th in a civil action is certainly permissible: no person is required under any process of law to give testimony that may incriminate him. Incrimination in this sense, however, only means that you would be subject to a criminal prosecution, and not that you would be subject to liability.
Sometimes, a defendant faces both -- a civil action may seek damages for conduct that, in fact, is criminal. A defendant could, at least in theory, refuse to answer a question on fifth amendment grounds to avoid making an admission that would send him to jail. That is his constitutional right.
But it would be a very bad thing to do in a civil action. if you take the fifth on an ultimate question, the judge may determine as a matter of law that your answer would have been the least favorable to you, and may so instruct the jury. When people start taking the fifth in a civil action, you just won the case -- not only rhetorically, because juries will always slam-dunk you, but legally as well -- depending upon the question not answered, you might be entitled to near-immediate summary judgment or a directed verdict. You just keep asking questions going to ultimate questions, and they either answer or they don't. either way, you win.
When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different.
Nothing here to see, move along. Seriously, let's get hysterical about the real stuff in this suit, OK?
In the United States, both parties to a civil action are permitted to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. Rule 26(b). Matter is subject to discovery if it is itself evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
To that end, parties may propund interrogatories (questions requiring written answers signed under oath), depositions, requests for documents and things, inspections of property and testing, and requests for admission. While there are limits to what can be obtained, pretty much everything relevant and not privileged is discoverable, even when it is incredibly expensive and burdensome to produce.
If a party doesn't produce it, the court may compel production by judicial order on pain of contempt or worse --the court may award sanctions and penalties, and ultimately can award sanctions that can go to the merits of the case, dismissing or awarding judgment for failure to comply.
It is and always has been the rule that a plaintiff is permitted to use discovery to compel production of smoking guns and killer evidence, even where the plaintiff (and particularly because the plaintiff) bears the burden of proof. That, by the way, is how Boies nailed Microsoft -- but for the expedient of discovery, the government probably would not have won its antitrust case.
Discovery disputes of this kind are routine in big ticket litigation. Nothing here to see, move along.
but do precious little to keep out the crooks. Finding ways to mitigate online anonymity might, in Darwinlike fashion, weed out the script kiddies, but would likely do little to keep good crackers and outright crooks from staying anonymous.
.
Use of disguise and false identities has been a criminal (and espionage) tool for hundreds of years, despite extensive efforts of governments to document and prevent such conduct. Why would this be any different? Except now, only the crooks will have anonymous identity . .
By depriving crackers of anonymity, all we are doing is making it easier for crackers to exploit and beat up on its honest and innocent pray, who will no longer be anonymous.
Let's see, a bounty for the head of the cracker who did the deed.
Let's say I am really, really good.
Let's say that the cracker who did the deed is really, really good and very dangerous.
Let's say that the bounty is really, really high.
Let's say that there is another cracker, call him "stooge," who is really good, somewhat dangerous, but not as good or dangerous as am I.
I want the bounty, I can very effectively frame stooge, who is pretty darn good, but framable, and not so dangerous.
or i can go after someone who is much better and more dangerous.
Looks like all a bounty system would do is incentivize crackers to do very effective jobs of framing innocent, less effective, hackers.
The Economist should know more about Economics.
The part about this story that gets to me is that the researcher didn't alert Microsoft before posting to a public mailing list.
Truth. But here's the problem. Microsoft's reputation for responsiveness (that is, not!) and collegiality (that is, not!) in these situations is awful. Nor does Microsoft treat those who report such problems with any degree of warmth. Having established its Chinese wall as it has, Microsoft has lost its standing to whine about non-collegiality of the world it has created.
This is the entire point about open systems, or at least openness about security -- it leverages what happens out there. Frankly, I feel more secure knowing what are the leaks, whether they are addressed or not, than I do knowing there are secret leaks out there for someone to exploit without my knowledge.
If Microsoft had a reputation: (i) for assuring that a report of a leak would be responsibly handled and escalated promptly and without agonizing pain on the part of the reporter -- who is doing Microsoft a favor; and (ii) for responsibly, promptly and professionally addressing the problem, I would feel much more sympathetic.
The problem is that they don't. Maybe they will change as they said they would. But until they do, I'd rather hear the news in time to know for what I have to watch out than to have it buried while others who have discovered the leak exploit it.
Here's the thing, it is highly unlikely that any leak that is discovered by me was discovered only by me. Others, less responsible than I, will disover a leak, find the exploit, and either keep it in their "bag of tricks," trade it or what have you. In any case, if I find it, the exploit is likely out there in someone else's hands. I'd rather know the problem than wait for the solution.
Yes, the kiddies are more likely to play if it is readily "out there." But guys, that happens anyway, one way or the other. Beside, Microsoft seems far more responsive to public leaks than private ones -- maybe this kind of report is more likely to assure that the bug will be repaired than otherwise.
And you spend much less time on hold . . .
You may continue to believe what you read on Slashdot all you like, but it just isn't so. Read some patents, read the citations, and note that you will find cited non-patent prior art. How do you think that gets there? By accident?
And, by the way, there are a kazillion remedies available to you if the USPTO issues a bad patent short of full-scale litigation. If you actually have killer prior art, just file for reexamination, and it would be a matter of course.
This canard, repeated in Slashdot with the frequency of a Bush press release on Fox News, just isn't the case. It does not become more true upon repetition.
Prior art is defined by statute, and the USPTO has no discretion to distinguish between patent and non-patent prior art. The USPTO searches not only the corpus of patent art, but also many commercial and generally available databases of non-patent prior art. Patent claims are frequently (and in some cases famously) refused in view of non-patent prior art.
Singificantly, if you are aware of patent prior art for a published application, there are vehicles by which you may make the art a matter of record. Finally, if a patent issues with respect to which you are aware of prior art (patent or non-patent) raising a substantial new question of patentability, you may either file yourself or bring it to the attention of the Commissioner who may, in his discretion, bring his own reexamination proceeding. Again, patents have been rescinded famously in view of non-prior art in this manner as well (Compton's for example).
The abstract neither broadens nor limits the scope of claims of a patent. By regulation, it "will not be used for interpreting the scope of the claims."
The claim is the thing, and must be read carefully in view of the specification and prosecution history.
As the parent noted, as would anybody who actually took the time to read the patent abstract (which apparently does NOT the original poster), this patent is for using the web as a place to migrate settings and data from one computer to another.
Anybody who reads an abstract and draws conclusions about the scope of the document deserves everything they get. Someone with a clue would know that the abstract, by regulation "will not be used for interpreting the scope of the claims."
Please, don't give us this horseshit by "reading the abstract." The claims define the patent, and the claims are informed by careful reading of the specification and the relevant prosecution history. Seriously, the legal advice offered here is absolutely hopeless.
Time will tell what is the scope of the patent -- but no fair reading of the claims may conclude that this patent covers a scope of behavior as broad as that set forth in the parent. No reading credibly informed by a review of the specification will reach that conclusion.
Just stop it, guys! If you aren't really going to bother to learn what these claims are, don't whine about them. It makes us all look silly, and takes away from those of us who ARE interested in limiting the scope of bad patents.
The capitalist mindset is designed, at the very core, with the sole end goal of making a bunch of money.
This is non-argument. There is no meaningful thing as a "capitalist mindset" or its "design," you are just playing with words, and you aren't being reasonable or fair about it. You don't provide serious support for your proposition that anything is "designed" to be X, what you are saying, really, is that each is "defined" to be X, and then draw your conclusions from your definitions. So what?
What if the open source software mindset were designed to provide and obtain free-for-beer software, and the good stuff were merely incidental? This is all just demagoguery, and proves nothing.
Open source has provided some of the ugliest, grotiest code i have ever seen in a production environment; and, it has also provided some of the best. The same can be said of commercial code. Similar forces operate in each "market" to permit better product to rise to the top in their own way, and to provide incentives to improve. But this has nothing to do with corresponding "mindsets" or the demagoguery of each mindset's corresponding advocates.
No argument was made here -- just a definition parsed and rehashed. It is fluffy, weak-minded, non-argument like this that marginalizes open source developers and makes it difficult for us to get traction in the real world.
Some of us produce quality code, some of us suck. Some of our works are worthy of a song, and some are worthy of a rasberry. None of this has to do with mindset. It is not because some of us "get it" and others do not. It is because some of us can code, and some of us can not. Same with commercial software.
In the early days, when titles were more sparse, we bought them all, if we could. We wanted just to see what they did, and what they could make our computer do. A box cover that showed and told was all we needed. We would play the game a bit, see that it wasn't going to involve us utterly, and set it aside, happy to know what it did, and not really feeling cheated.
I suspect, if free demos abounded, I would never have bought half of the games I paid for. Today, the market is quite different -- we are not all hobbyists anymore, prices are higher, we are mostly jaded about what are computers can do and games no longer astonish merely because they exist.
Still, I think that property -- for marginal games -- may account to some degree for this behavior.
I haven't read too deeply, but this goes back to a case from a few years ago, New York Times v. Tasini, in which an free lance author sued the Times for republishing his work in electronic form without agreement. It really has nothing to do with Amazon, its an author/publisher issue.
Authors don't always get much benefit from the publication and republication of their works beyond initial advances. Publishers, on the other hand, pull a pretty decent margin on books sold thereafter. The "feature" provides a benefit to the publisher, but not necessarily to the author, depending on his or her particular deal.
I imagine authors are looking to this as an opportunity to renegotiate terms of their publishing agreements -- the vast majority of which are adhesion contracts arising from a "take it or leave" it negotiation for their first and only published book.
The law pretty much is what it is, and the ownership of the electronic publication use rights are what they are. The deal will make commercial sense or it won't, and the facility will be available or not. The general idea is that the free market will make for the fairest arrangement between all these parties and for the benefit of the public. Time will tell.
Most book publication agreements provide the publisher only with very limited rights. I'd bet the Guild has a pretty strong legal position, but again, time will tell.
The issue is not necessarily one of piracy, nor lawsuits, but one of a blatent monopoly acting in their own interests and screwing their audence
In what way is suing someone for infringement "screwing their audience?" If they are using music they purchased, there is no risk whatsoever. If they are not using they purchased, how are they RIAA's audience?
Oh, you mean the audience of persons who like the music but won't or can't pay for it? Tell you what, I agree with you. Tell you another thing, who cares? You want to defend freeloaders and free-riders, fine. But here's the deal, this is their right -- it is also very much the right thing to do.
For years, we have been excoriating RIAA for seeking dumb-as-dirt laws to try to circumvent technology with specialized regulation that would hurt every person for every purpose. Those of us who opposed the legislation fiercely on the ground that it is anticompetitive and will compromise innovation prevailed, but one of the things we noted to do so was this: we observed that the bill isn't necessary because there are ALREADY laws to protect RIAA against music freeloaders, the Copyright Act.
So here is your choice, let them sue the wrongdoing infringeers and let them be, or suck up the fact that your computers in the future are going to have mandatory DRM of a kind that will make you unable to use your own music. One of these is inevitable -- and fighting the RIAA suits against real infringers (other than on grounds of noninfringement or true fair use) is not only irrational, its tactically quite dumb.
The public and the government will actually tolerate a benevolent monopoly for quite some time if no one complains about it. Major league baseball is a perfect example
Not. Major league baseball is an example of an entity that is exempt from the antitrust laws because it has an exemption. A trilogy of Supreme Court cases, beginning with Oliver Wendell Holmes in the twenties have sealed the deal.
Your legal services are worth what I have paid for them. Suffice it to say, we disagree. I'd be pleased to face off your arguments in court, anytime, but I have limited time to spend on it here. I have been practicing law in this arena for more than a decade, now, and with all due respect for your clear efforts to self-educate and your clear learning of what you did learn, it is equally clear that you don't know what you don't know.
"Right to use." Your argument appears to be that because the phrase "use" does not appear in Section 106, this cannot be the subject of a license. Your analysis, if true, would reverse decades of entertainment law, which uses countless phrases such as "mechanical license," "synchronization license," "transmission license" and the like." Two things are possible: (1) you are correct, and all current practice of law is wrong; or (2) you don't get it, and refuse to listen.
I will state our point of agreement. Section 106 establishes the only exclusive rights granted under the Copyright Act (although DMCA provides relief and remedies for related sets of rights that are different in kind, in particular, a right to sue against traficking and engaging in circumvention). Further, we agree that Sections 107-120 establish limtiations on those rights to the extent they are applicable.
Use Rights. Here is where we diverge. You state that there can be no license to a right to use, because the word "use" does not appear in Section 106. You are mistaken. The reproduction distribution and derivation rights you cannot deny are quite expansive, and cover a broad range of activity. An owner of a copyright is not required to gran plenary rights to reproduce, rights to make derivative works or to distribute the work -- if she wants, she may grant more restricted versions of the same, little bits and pieces of all the righs under a copyright derive. This is where things like, mechanical, syncrhonization and use rights derive -- they are placeholder terms of art for permitting some, but not plenary rights as set forth in Section 106.
You deny, citing to Section 117, the proposition that loading code into RAM for execution constitutes a form of reproduction. You miss the point: (1) Section 117 is limited to owners of a copy, and does not apply to licensees, except in certain limited circumstances; (2) it does not operate to permit plenary execution of code. The MAI, Southeastern and Apple cases settled this proposition in the 80s and 90s.
Downloading constitutes infringement. You asked me to cite cases. I did. You didn't read them, but criticized their applicability by citing comments from a web site out of context. Once again, you don't know what you don't know. You insist I am applying mere dicta from a judicial opinion. I am not, but even if I am, it is far more reliable authority than your unsupported and ipse dixit gainsay.
As a threshold matter, you seem to suggest that the reduction to a receiving party's hard disk is not a copy of the original, despite being byte for byte identical thereto, is one that will face serious scrutiny by any court who has heard it. Odd, how you seem to feel that a person who uses his eyes to draw a mental image of a work, and then paints from memory what he saw has made a copy, but somehow the digital rendition of the same is not a reproduction. Anyway, we will have to agree to disagree.
All that being said, there actually are fun, interesting and intellectually promising arguments that some sort of digital transmission right might be useful and interesting to "fill the gaps." You didn't make any of them, however. The law has been working fine, and time will tell if you are right and I am wrong.
I've got $10 saying that not one single RIAA complaint will be dismissed on the grounds you suggest. If you are right, the argument was slam dunk. Maybe the truth is more interesting than your simplistic, uninformed view of the law?