Corporations can make "non-commercial speech" but they are extremely limited in it. First off, you have to look at their audience and the goal of that speech. Second you have to see how they presented their speech.
In the case of a "letter to the editor" if Nike were to present something that they wished to be taken as factual but was proven a lie then they're in trouble. They get in even more trouble if it can be proven that the purpose of that speech was to influence their business position.
Lobbying against a bill is apparently ok. (BTW - it used to be illegal for corporations to lobby.) However, they have to disclose their agents and the moneys being expended in lobbying efforts.
In this particular case it appears that Nike is trying to use the 1st ammendment to allow them to lie. Additionally, these lies are aimed at trying to improve their corporate image and thus increase sales.
So, let's look at the specifics of the case rather than dragging out a bunch of "what if's".
The DMCA is explicitely mentioned when they talk about circumvention devices. If you read it a little deeper you see after all of the talk about rolling codes and security they mention "oh yeah, we also built this backdoor to re-synch our wonderful remotes".
Well, the SkyLink remote uses that backdoor to get around having to reverse engineer the actual rolling code (which according to the document is previous code + 3).
So, SkyLink manages to avoid all of the copyrighted code using this backdoor, so the DMCA claim is trotted out because they're "trafficing in a circumvention device".
First off, Disney is a bad example to trot out. They've made a bundle of money from trolling the public domain. Look at all of their movies and you can see that they borrowed quite freely from the Brothers Grimm and other fine sources.
Now, Disney will never lose control of Mickey Mouse for corporate use. Why? Because they trademarked him. What Disney would lose is the ability to keep other people from making derivative works and the very old cartoons that would have passed out of copyright.
This means we can't make Steamboat Willy II - The Death of Steam because we can't use the image of Mickey at the time. Meanwhile Disney went out and "borrowed" Alladin and is making a bundle from him. Additionally, they copyrighted their version of Alladin so you could end up having to prove that you're using the public domain one and not Disney's in your comic/book/movie.
Your final example is horrifically flawed. The better idea is to look at the internal combustion engine. The idea was that the US government would give you a limited monopoly on the manufacture and sale of this invention in exchange for telling everyone how it is made. This meant that at the end of your patent I could very easily create a clone of the engine without having to know the basic engineering and breakthroughs that were required in its original creation.
100 years from now, Disney's replacement won't be able to legally mine Disney's creations to give us the next amazing new generation of movies for our children's children's children to enjoy. They'll be all the poorer for it.
Well, the ol' "unlawful search and seizure" clause would hopefully protect us from your scenario. Additionally, the range and power of this generation of RFID tags probably wouldn't work through a car's frame.
As for the passport scenario there's two problems with that. First, non-US passports. Second, US passports are issued for 10 year lengths. It would take a long time for this tech to cycle into all US passports and probably be obsolete by the time it got there.
Passports are an interesting thing. Looking at all of the problems they have can show us all of the problems we can expect to have (and more) with any computer ID system like MS's Passport or the Liberty Alliance.
Well, first off thanks for the long reply. Informative, but I have some serious problems with it.
How, praytell, do you propose separating the cost of selling a marginal unit of software from the corpus of the up-front development cost? Maybe MS sinks an assload of money into developing a product and then it fails to sell at the originally planned price-point.
Well, we can through this scenario right out the window (sorry, no pun intended) because this is MS's STARTING price for the product. Anything that MS sells will be distorted by the insanely high profit margin they get on Windows and the obscene amount of money that they have (yeah, I wouldn't call it obscene if I had it:-D ).
Looking at your argument: In software, the marginal costs per unit are negligible. This puts MS in the position of being required to keep selling a product for a higher price than the market is be willing to bear if they estimate the front-end development costs wrong.
How can they mis-estimate the development costs? They're releasing the product AFTER development. We're not talking about corporate IT projects where you are trying to budget for them, we're talking about the bill after the fact.
The big question in this particular case would be to see how MS derived its price. Did they actually do a cost/sales analysis or did they merely look at the competitor's price and say "we'll sell for less than that." Further complicating the analysis is that these costs are only for licensing this technology on non-MS platforms. Does this mean that the cost of Windows is actually absorbing the bulk of the development costs? You've got the case of one group that is only selling a Codec versus the other that is selling an OS and a Codec. Personally, I'm glad that I can't be the judge picked to untangle this particular knot (if it actually goes to a legal challenge).
There is no implicit statement in my previous post that MS cannot lower prices. Anyone is free to lower prices. The issue is how low and what is the basis for your price points? If, for example, MS wanted to reduce the cost of Windows by 10-25% then I'd be all for it. We already know from their profit statements that MS makes around 85% profit on Windows yet that product remains as, if not more, expensive as ever.
As for Standard Oil: They owned the pipelines and coerced the railroads into sweetheart rebate deals. Predatory pricing had very little to do with Standard Oil's success. In this case you have the pricing occurring up stream from the actual sale. Standard Oil could sell for less because they forced costs down for them. This was usually at the expense of everyone else. This is actually a really strong parallel to Microsoft and their control of the OEM market.
OK, maybe Standard Oil didn't use price increases to fund other markets. Maybe they just lined their own pockets with the money. The fact is that prices still went up when they gained control of a market. (Maybe not to original levels, but as your quote points out the original levels were already distorted by the control that these large companies had over the distribution channels. Ida basically says that these companies were gaining their financial advantage at the expense and increased costs of everyone else.)
Thanks for the MPEG explanation. I've never bothered to research the whole thing and was always amused at how the subpart (MP3) was the most popular bit of the whole thing.
Back to pricing. Companies can always lower their prices, they just have to have some business rational behind it. Frankly, at this point most software products should be much cheaper than they currently are. Software currently behaves more like the gourmet food market which is funny because there is no shortage of supply.
Finally, on to Ford and GM. Let's see, first off the two companies together would not form a monopoly. Second, you answered your own question when you stated that it was cheaper for the company to continue running the factories than to close them. In that case they're looking at a short-term condition and working through it, they're not simply selling those cars at a loss to drive Daimler-Chrysler out of the market.
I suspect there are some specific rules governing loss leaders as well. In the console market, currently it is only MS that is taking a bath on each sale of their console. I know Sony makes a profit with each sale and I believe Nintendo does too.
But, like you said the real issue comes into WHY the price is so low. If it's a short term sale on an item (those normal store loss leaders) then it's ok. If it's to run the competition out then it's bad/illegal.
Actually, the more interesting side is the anti-gouging laws that keep you from running prices UP too high. (You can get arrested for selling water at $5/liter during a flood/natural disaster.)
Personally I liked the poster who suggested that they'd only be fun if you could break in and slay the whole meeting. (Think of all the/.'ers just dying to re-enact the Mooby scene from Dogma.)
You're mistaking a "loss leader" versus predatory pricing.
Shavers and ink jet printers are prime examples of this. In this case they hope to make up their money through the sale of related consumables (razor blades and ink cartridges).
The problem comes when you engage in a prolonged campaign of selling something below cost strictly for the purpose of running your competitors out of business.
Wal-Mart, Best Buy and the other mega-chains compete on price. They can get wholesale price breaks that allow them to sell for less and they'll even discount a few items below cost to get customers in the door. HOWEVER! Wal-Mart doesn't simply sell everything below cost, drive out all the competition, and then jack up all of its prices afterwards.
A good example would be to look at all of the various specials offerred at a supermarket. You notice how they change each week. The goal of them is to get you in the door to sell you the other stuff that they make a profit on.
Stop splitting up my points. The whole phrase was "I wasn't talking about price competition. I'm talkinb about COST.!"
The point has to deal with whether they are merely being agressive on pricing or they are dumping. There's a huge difference between those two acts. One being legal and the other not.
Nothing in anything I wrote said that I wanted to stop MS from lowering prices. The issue is whether a company is engaging in illegal below-cost pricing. This isn't something limited to just MS.
Think about it for a second. If the only criteria for product competition was price then why did we break up Standard Oil? They were offerring prices far below the competition whenever they moved into a new market. (Of course they subsequently raised those prices and used the higher prices in other markets to subsidize their price competition in the local market...)
Again, the MPEG group may or may not have a valid complaint. They could just be crying about sour grapes or trying to get some free PR. (If you think.NET naming is confusing then look at MPEG. MP3 == MPEG 1 Layer 3, and now they have MPEG4 to repace MPEG 1?!?)
So, please let the whole MS part of this drop. My point was that the people who said "this is the way the market works" were simply wrong. The market is nowhere near that simple.
We're talking about COST competition. If one group is selling their product below the actual cost of production then there are real problems.
MS has not "acted badly in the past" MS has willfully broken the law. There's a huge difference between those two statements.
MS hasn't even started their probation yet so I don't see where any call for it to end now should come into play.
Again, I wasn't condemning MS for it's actions. I was complaining about the "this is how competition works" statements completely ignore the fact that in some cases you are not talking about competition.
I never said I want to stop any customers from buying anything. My concern is when one company (not just Microsoft mind you) breaks the law to drive out competitors.
As to your ending riposte: Show me a specific case where AOL/Time Warner or Sony has been found to be selling items below cost to drive out competitors. (Sony doesn't even sell the PS2 below cost anymore.) Heck, the main complaint about AOL is that they're MORE expensive than everyone else.
First, your gas analogy is a trifle flawed. Comparison shopping is a tried and true past time these days. (Just look at sites like fatwallet.com.) The problem comes if one gas station were to come into the market and sell for something like $.40 per gallon. (The actual amount is arbitrary, as long as it is below the actual cost of getting the gas to the station.) Obviously, no competitor could reasonably keep up with prices like this. (The only way to do that would be to have supplemental income from another product/line covering these losses.)
I have made absolutely no comments on the merits of the MPEG group's claims. I was merely pointing out that the collection of "this is how it works in the free market", "what's the matter, can't compete?", and "make a better product" retorts that I've seen here conveniently ignore the ramifications of actions by companies.
The fact that I chose to do this using historical evidence of previous behavior from the company being accused in this case should give everyone a little more pause for thought.
This would be like Shur-Fine Brand Mac and Cheese protesting Kraft for selling for 50% less. The issue would be if Shur-Fine could prove that Kraft's selling price is actually below the cost.
There is a huge difference between arguing about premium priced products versus below-cost products. MPEG-LA would have to prove that MS is actually selling their codec below cost.
BTW, you don't have a right to charge whatever you want in the US. There are anti-gouging and anti-dumping laws that keep things in check.
1) Drop the license rate. MS called it "cutting off their air supply" if I recall correctly. 2) Open your codec completely Then how can you get any license revenue from it? 3) Make a better product It was widely regarded that the versions of NS were far superior to IE up to 4.0 (and there it's a debate).
The foul is something called dumping. The practice of below cost in an effort to drive competitors out of the market.
Now whether MS was dumping or MPEG-LA was gouging is something to be decided by the courts.
A virus, by medical definition, has the ability to change things/propogate itself WITHOUT THE CONSENT of the host.
GPL is only a license. It has no power to arbitrarily strip a copyright owner of their property. Software can only become GPL'd voluntarily there is no way that something can simply magically become GPL.
Making code GPL does not suddenly strip every right you have to that code from you.
If you own the copyright to the code then you are free to license it anyway that you like. Remember, the GPL is just that, a license.
This means that you can't license someone else's copyrighted code (taking someone's proprietary code and adding it to a GPL'd work) unless you are given specific permission from the copyright owner.
Think about it. TrollTech both GPL's and sells licenses for Qt. They can do this because they are the copyright owners.
Take the recently released Back to the Future Trilogy. That was released as a Region 1 disc. (I guess there was already a Region 2 version before that.)
Now, what was the reason that we were told region codes were needed? "Because the movie in question may not have been released in theaters in other regions yet."
So, anyone want to guess what region hasn't had Back to the Future 1 - 3 yet?
Slashdot Mirror
Corporations can make "non-commercial speech" but they are extremely limited in it. First off, you have to look at their audience and the goal of that speech. Second you have to see how they presented their speech.
In the case of a "letter to the editor" if Nike were to present something that they wished to be taken as factual but was proven a lie then they're in trouble. They get in even more trouble if it can be proven that the purpose of that speech was to influence their business position.
Lobbying against a bill is apparently ok. (BTW - it used to be illegal for corporations to lobby.) However, they have to disclose their agents and the moneys being expended in lobbying efforts.
In this particular case it appears that Nike is trying to use the 1st ammendment to allow them to lie. Additionally, these lies are aimed at trying to improve their corporate image and thus increase sales.
So, let's look at the specifics of the case rather than dragging out a bunch of "what if's".
The DMCA is explicitely mentioned when they talk about circumvention devices. If you read it a little deeper you see after all of the talk about rolling codes and security they mention "oh yeah, we also built this backdoor to re-synch our wonderful remotes".
Well, the SkyLink remote uses that backdoor to get around having to reverse engineer the actual rolling code (which according to the document is previous code + 3).
So, SkyLink manages to avoid all of the copyrighted code using this backdoor, so the DMCA claim is trotted out because they're "trafficing in a circumvention device".
After all, they teach people how to swim there. :-D
(The scary part was that I had to stare at dihydrogen monoxide for a few seconds before I translated it...)
Who in his right mind would like to have his brain fondled by a MS product?"
:-D
Well, obviously if you're in your right mind you don't need surgery.
Hmmm, MS Brain-Surgery-Windows: What do you want to think today?
First off, Disney is a bad example to trot out. They've made a bundle of money from trolling the public domain. Look at all of their movies and you can see that they borrowed quite freely from the Brothers Grimm and other fine sources.
Now, Disney will never lose control of Mickey Mouse for corporate use. Why? Because they trademarked him. What Disney would lose is the ability to keep other people from making derivative works and the very old cartoons that would have passed out of copyright.
This means we can't make Steamboat Willy II - The Death of Steam because we can't use the image of Mickey at the time. Meanwhile Disney went out and "borrowed" Alladin and is making a bundle from him. Additionally, they copyrighted their version of Alladin so you could end up having to prove that you're using the public domain one and not Disney's in your comic/book/movie.
Your final example is horrifically flawed. The better idea is to look at the internal combustion engine. The idea was that the US government would give you a limited monopoly on the manufacture and sale of this invention in exchange for telling everyone how it is made. This meant that at the end of your patent I could very easily create a clone of the engine without having to know the basic engineering and breakthroughs that were required in its original creation.
100 years from now, Disney's replacement won't be able to legally mine Disney's creations to give us the next amazing new generation of movies for our children's children's children to enjoy. They'll be all the poorer for it.
Well, the ol' "unlawful search and seizure" clause would hopefully protect us from your scenario. Additionally, the range and power of this generation of RFID tags probably wouldn't work through a car's frame.
As for the passport scenario there's two problems with that. First, non-US passports. Second, US passports are issued for 10 year lengths. It would take a long time for this tech to cycle into all US passports and probably be obsolete by the time it got there.
Passports are an interesting thing. Looking at all of the problems they have can show us all of the problems we can expect to have (and more) with any computer ID system like MS's Passport or the Liberty Alliance.
I'm going to sign-up and hang out my shingle selling car-poons. :-D
Well, first off thanks for the long reply. Informative, but I have some serious problems with it.
:-D ).
How, praytell, do you propose separating the cost of selling a marginal unit of software from the corpus of the up-front development cost? Maybe MS sinks an assload of money into developing a product and then it fails to sell at the originally planned price-point.
Well, we can through this scenario right out the window (sorry, no pun intended) because this is MS's STARTING price for the product. Anything that MS sells will be distorted by the insanely high profit margin they get on Windows and the obscene amount of money that they have (yeah, I wouldn't call it obscene if I had it
Looking at your argument:
In software, the marginal costs per unit are negligible. This puts MS in the position of being required to keep selling a product for a higher price than the market is be willing to bear if they estimate the front-end development costs wrong.
How can they mis-estimate the development costs? They're releasing the product AFTER development. We're not talking about corporate IT projects where you are trying to budget for them, we're talking about the bill after the fact.
The big question in this particular case would be to see how MS derived its price. Did they actually do a cost/sales analysis or did they merely look at the competitor's price and say "we'll sell for less than that." Further complicating the analysis is that these costs are only for licensing this technology on non-MS platforms. Does this mean that the cost of Windows is actually absorbing the bulk of the development costs? You've got the case of one group that is only selling a Codec versus the other that is selling an OS and a Codec. Personally, I'm glad that I can't be the judge picked to untangle this particular knot (if it actually goes to a legal challenge).
There is no implicit statement in my previous post that MS cannot lower prices. Anyone is free to lower prices. The issue is how low and what is the basis for your price points? If, for example, MS wanted to reduce the cost of Windows by 10-25% then I'd be all for it. We already know from their profit statements that MS makes around 85% profit on Windows yet that product remains as, if not more, expensive as ever.
As for Standard Oil:
They owned the pipelines and coerced the railroads into sweetheart rebate deals. Predatory pricing had very little to do with Standard Oil's success.
In this case you have the pricing occurring up stream from the actual sale. Standard Oil could sell for less because they forced costs down for them. This was usually at the expense of everyone else. This is actually a really strong parallel to Microsoft and their control of the OEM market.
OK, maybe Standard Oil didn't use price increases to fund other markets. Maybe they just lined their own pockets with the money. The fact is that prices still went up when they gained control of a market. (Maybe not to original levels, but as your quote points out the original levels were already distorted by the control that these large companies had over the distribution channels. Ida basically says that these companies were gaining their financial advantage at the expense and increased costs of everyone else.)
Thanks for the MPEG explanation. I've never bothered to research the whole thing and was always amused at how the subpart (MP3) was the most popular bit of the whole thing.
Back to pricing. Companies can always lower their prices, they just have to have some business rational behind it. Frankly, at this point most software products should be much cheaper than they currently are. Software currently behaves more like the gourmet food market which is funny because there is no shortage of supply.
Finally, on to Ford and GM. Let's see, first off the two companies together would not form a monopoly. Second, you answered your own question when you stated that it was cheaper for the company to continue running the factories than to close them. In that case they're looking at a short-term condition and working through it, they're not simply selling those cars at a loss to drive Daimler-Chrysler out of the market.
I suspect there are some specific rules governing loss leaders as well. In the console market, currently it is only MS that is taking a bath on each sale of their console. I know Sony makes a profit with each sale and I believe Nintendo does too.
But, like you said the real issue comes into WHY the price is so low. If it's a short term sale on an item (those normal store loss leaders) then it's ok. If it's to run the competition out then it's bad/illegal.
Actually, the more interesting side is the anti-gouging laws that keep you from running prices UP too high. (You can get arrested for selling water at $5/liter during a flood/natural disaster.)
You forgot the other part.
You have to call in to get a code to open the bottle and if you pour it into a glass you need to get another code to drink it from there.
Thanks, apology accepted.
/.'ers just dying to re-enact the Mooby scene from Dogma.)
Personally I liked the poster who suggested that they'd only be fun if you could break in and slay the whole meeting. (Think of all the
Imagine a drunken guy named Beowulf lying face down by a cluster of these...
You're mistaking a "loss leader" versus predatory pricing.
Shavers and ink jet printers are prime examples of this. In this case they hope to make up their money through the sale of related consumables (razor blades and ink cartridges).
The problem comes when you engage in a prolonged campaign of selling something below cost strictly for the purpose of running your competitors out of business.
Wal-Mart, Best Buy and the other mega-chains compete on price. They can get wholesale price breaks that allow them to sell for less and they'll even discount a few items below cost to get customers in the door. HOWEVER! Wal-Mart doesn't simply sell everything below cost, drive out all the competition, and then jack up all of its prices afterwards.
A good example would be to look at all of the various specials offerred at a supermarket. You notice how they change each week. The goal of them is to get you in the door to sell you the other stuff that they make a profit on.
Stop splitting up my points. The whole phrase was
.NET naming is confusing then look at MPEG. MP3 == MPEG 1 Layer 3, and now they have MPEG4 to repace MPEG 1?!?)
"I wasn't talking about price competition. I'm talkinb about COST.!"
The point has to deal with whether they are merely being agressive on pricing or they are dumping. There's a huge difference between those two acts. One being legal and the other not.
Nothing in anything I wrote said that I wanted to stop MS from lowering prices. The issue is whether a company is engaging in illegal below-cost pricing. This isn't something limited to just MS.
Think about it for a second. If the only criteria for product competition was price then why did we break up Standard Oil? They were offerring prices far below the competition whenever they moved into a new market. (Of course they subsequently raised those prices and used the higher prices in other markets to subsidize their price competition in the local market...)
Again, the MPEG group may or may not have a valid complaint. They could just be crying about sour grapes or trying to get some free PR. (If you think
So, please let the whole MS part of this drop. My point was that the people who said "this is the way the market works" were simply wrong. The market is nowhere near that simple.
We're not talking about price competition.
We're talking about COST competition. If one group is selling their product below the actual cost of production then there are real problems.
MS has not "acted badly in the past" MS has willfully broken the law. There's a huge difference between those two statements.
MS hasn't even started their probation yet so I don't see where any call for it to end now should come into play.
Again, I wasn't condemning MS for it's actions. I was complaining about the "this is how competition works" statements completely ignore the fact that in some cases you are not talking about competition.
I never said I want to stop any customers from buying anything. My concern is when one company (not just Microsoft mind you) breaks the law to drive out competitors.
As to your ending riposte:
Show me a specific case where AOL/Time Warner or Sony has been found to be selling items below cost to drive out competitors. (Sony doesn't even sell the PS2 below cost anymore.) Heck, the main complaint about AOL is that they're MORE expensive than everyone else.
First, your gas analogy is a trifle flawed. Comparison shopping is a tried and true past time these days. (Just look at sites like fatwallet.com.) The problem comes if one gas station were to come into the market and sell for something like $.40 per gallon. (The actual amount is arbitrary, as long as it is below the actual cost of getting the gas to the station.) Obviously, no competitor could reasonably keep up with prices like this. (The only way to do that would be to have supplemental income from another product/line covering these losses.)
I have made absolutely no comments on the merits of the MPEG group's claims. I was merely pointing out that the collection of "this is how it works in the free market", "what's the matter, can't compete?", and "make a better product" retorts that I've seen here conveniently ignore the ramifications of actions by companies.
The fact that I chose to do this using historical evidence of previous behavior from the company being accused in this case should give everyone a little more pause for thought.
This would be like Shur-Fine Brand Mac and Cheese protesting Kraft for selling for 50% less. The issue would be if Shur-Fine could prove that Kraft's selling price is actually below the cost.
There is a huge difference between arguing about premium priced products versus below-cost products. MPEG-LA would have to prove that MS is actually selling their codec below cost.
BTW, you don't have a right to charge whatever you want in the US. There are anti-gouging and anti-dumping laws that keep things in check.
1) Drop the license rate.
MS called it "cutting off their air supply" if I recall correctly.
2) Open your codec completely
Then how can you get any license revenue from it?
3) Make a better product
It was widely regarded that the versions of NS were far superior to IE up to 4.0 (and there it's a debate).
The foul is something called dumping. The practice of below cost in an effort to drive competitors out of the market.
Now whether MS was dumping or MPEG-LA was gouging is something to be decided by the courts.
Hmmm, marketing will rename it to the BGOD :-D
Blue GLOW of Death.
...walk-by shooting?
Personally, the implication that SlashDot conveys mathematical skills is absurd.
Of course having a certified technician repair your Microsoft PC is like getting a certified mechanic to repair your Corvair.
:-D
Some things just can't really be fixed.
If they're always working backwards then they should call the original post of something the duplicate and the duplicate the original... :-}
Wrong.
A virus, by medical definition, has the ability to change things/propogate itself WITHOUT THE CONSENT of the host.
GPL is only a license. It has no power to arbitrarily strip a copyright owner of their property. Software can only become GPL'd voluntarily there is no way that something can simply magically become GPL.
Making code GPL does not suddenly strip every right you have to that code from you.
If you own the copyright to the code then you are free to license it anyway that you like. Remember, the GPL is just that, a license.
This means that you can't license someone else's copyrighted code (taking someone's proprietary code and adding it to a GPL'd work) unless you are given specific permission from the copyright owner.
Think about it. TrollTech both GPL's and sells licenses for Qt. They can do this because they are the copyright owners.
GPL is only a license.
Copyright is what gives the power.
Take the recently released Back to the Future Trilogy. That was released as a Region 1 disc. (I guess there was already a Region 2 version before that.)
Now, what was the reason that we were told region codes were needed? "Because the movie in question may not have been released in theaters in other regions yet."
So, anyone want to guess what region hasn't had Back to the Future 1 - 3 yet?