Actually, there's a good argument that professional organizations (e.g., AMA, ABA, etc.) function to some extent to keep people out of the profession (through, e.g., licensing requirments, especially those beyond passing a board or bar exam, such as having a degree from an acredited school, or law's against unauthorized practice). This has a monopolistic effect, thus keeping supplies low and prices high. For a good discussion of this, see Richard Posner's Overcoming Law . And, for what it's worth, I am a lawyer. Unfortunately for me at least, the monopoly is fading (there's more and more overlap with CPAs in areas like tax and business law).
Actually, the "Playboy" (R) trademark is not used in association with the "sexual domain" -- it is used in connection with the products sold by Playboy Enterprises, Inc. (e.g., magazines, television programming, etc.). That follows your "Carpenters" example perfectly.
I'm posting this as a general reply so I don't have to reply to each person who has said "The First Amendment isn't federl law!!!" The Constitution is a "Federal law," as are it's Amendments. It just happens to be the supreme law of the land, meaning that it is superior to all other law (statutes, regulations, common law, etc.).
While I certainly feel for Mr. Castillo, the Supreme Court has long ruled that obscenity is not protected by the First Amendment. See Miller v. California, 413 U.S. 15 (1973). This does not apply to speech that only rises to the level of "indecent." Whether something is obscene or not is determined based on local community standards. While I personally think that obscenity should be protected by the First Amendment (it says "Congress shall make no law..."), that's the law as it stands now ( and yes, case law is law too).
Also, I AM a lawyer.
The "right" of fair use (from a lawyer)
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What's Microsoft Up To?
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· Score: 5, Informative
And while I'm on it, can someone who is a lawyer tell me if we have a right to fair use or is it merely a thing that we've enjoyed because copyright holders couldn't ever get such a firm grip on it enough to effectively control it?
I am a lawyer. I am not completely sure on this issue, as I have not had a lot of time to research it. It appears as though the issue is split. Some courts refer to fair use as a right, some as a privelege.
Fair use is provided by statute, not the Constitution:
107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Supreme Court has described it as follows: "Any individual may reproduce a copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to such a use." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984).
I don't think the issue has been presented to the courts in this manner (there haven't been many copy protection schemes for thinks like books, e.g., they aren't printed on red paper to stop photcopying). I would say that a court would hodl a content producer can use DRM, but if you hack the DRM, thus allowing you to make copies, you can make copies for various fair uses. However, the hacking itself (i.e, bypassing the DRM) may be illegal under the DMCA. This probably trumps the fair use right (remember, its source is statutory -- not constitutional) in that if you can't make copies legally, you can't exercise your fair use right/privilege.
Alas... the problem is that the various statutes are either out of date (e.g., Copyright Act) or responses to an uncertain environment, goaded by lobbyists (e.g., DMCA).
Most law students do take a second Con Law course that covers the First Amendment, including the right to create parody (see, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988)). And I don't know to what state bar you are referring, but most of them will test on Constitutional issues (the Multistate does -- and most states use the Multistate). BTW, IAAL.
Actually, that is not true. As with many settlements, the settlement agreement in this case requires the defendant to give up more than money. To quote the Notice of Proposed Settlement: "The Settlement Agreements with the Distributor Defendants and the Retailer Defendants each provide for injunctive relief. The Plaintiffs and Distributor Defendants have agreed to the entry of a permanent injunction, which would prohibit the Distributor Defendants for a period ending August 30, 2007 from adopting, maintaining, enforcing or threatening to enforce any policy, practice or plan which makes receipt of any cooperative advertising or other promotional funds contingent on the price or price level at which any product is advertised or promoted. Distributor Defendants would also be prohibited from agreeing with any dealers to control or maintain the resale price at which the Dealer may offer for sale or sell such Distributor Defendant's Product. Additionally, Distributor Defendants could not for a period ending August 30, 2005, announce resale or minimum advertised prices of product and unilaterally terminate those who fail to comply because of such failure. Distributor Defendants may however, announce suggested retail prices for their Product."
It's not perfect, but they're not walking by simply writing a check.
BTW, IAAL. And I DO wish they had handed out a pitchfork and goatee with my JD.
The problem is not that people are not seeing movies repeatedly (the article's prime example, Titanic, came out in the age of DVD and VHS). We know this because, as several other people have pointed out, movie box office takes are up. The problem is the much higher cost of making movies, where budgets often soar above the $100 million mark (remember when T2, with it's $100 million budget was unthinkable?). Now many movies have to be "blockbusters" to just break even. If anything, we can blame this trend on McCallum, Lucas and all the rest who keep pushing "digital" film making (whether its FX, new cameras, or what have you), which is far more expensive than traditional movie making techniques. Oh yeah, that and paying stars $20+ million to appear in a movie.
This is one of the things that makes me the angriest about all of this (anti-CD copying, the Napster debacle, etc.). The price you pay for a CD already has the price of piracy (their supposed "losses") built into it. Sony and the like are never going to pay for piracy (i.e., lose money on it) -- they're simply going to pass this cost on to the consumers.
It's a lot like the signs you see in stores re: shoplifting or on the buggy corrals at the grocery store (where they effectively tell you to not steal or let your buggy get out of control in order to keep costs down for everyone).
Better yet, this idea has been discussed/recognized in at least one important judicial decision in this area: RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999)(upholding the legality of the Rio MP3 players). See specifically page 1074, footnote 1 of the opinion. Judge O'Scanlain seriously questions whether the recording industry actually suffers a loss from privacy. Instead, you and I suffer a loss because we pay more for CDs (ever notice that, in the 17 years since CDs were released, their MSRP -- about $18 on average -- hasn't gone down, despite how cheap it is to produce a CD?).
I'd love for this to happen -- I would finally be able to leave my crappy local cable company and still get network programming.
But let's face it -- I don't think that Echostar really cares that much about the First Amendment in this case. They simply want to be able to get everyone to buy their service, including those people, like myself, who have resisted getting a dish because of the SNAFU with getting network programming.
Even the quote from Campbell does not support what you claim. The "balance" between competing intererests (public good versus private ownership) is the only thing that the Copyright Clause really mandates. Fair use has been seen as a means to that end -- but the parameters of that means, of Fair Use, are statutory, and thus up to Congress (note that some requirements of Fair Use, e.g., publication, were dropped when it was incorporated in the 1976 Act). As noted by the Second Circuit Court of Appeals just last year, "Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement." Universal Studios,Inc. v. Corley, 273 F.3d 429, 458 (2d Cir. 2001)(emphasis added).
Sorry, but try reading the case next time. Folsom is an old District Court case that does NOT say that the extent of the copyright is Constitutionally mandated. And to quote the Supreme Court's opinion in Sony, 464 U.S. 417, 430 (1984), with the Court's citations included:
"Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly statutory. Wheaton v. Peters, 33 U.S. (8 Peters) 591, 661-662, 8 L.Ed. 1055 (1834). The remedies for infringement "are only those prescribed by Congress." Thompson v. Hubbard, 131 U.S. 123, 151, 9 S.Ct. 710, 720, 33 L.Ed. 76 (1889)."
I think what he means by "legal" rights versus constitutional rights is really a matter of "statutory" versus constitutional rights. The concept of legal rights encompasses both.
The fundamental concept of the article is correct. It does not, however, go far enough. While copyright is discussed/provided for in the Constitution; the extent of the "right" (i.e., what exactly the right is) is a product solely of statutes (here, the 1976 Copyright Act).
Not to "mix my metaphors," but how about The Increasingly Misnamed Final Fantasy.
BTW, for those of you who hated some of the game within a game sideplots (e.g., breeding chocobos, trading card games written in hex, etc.), this one will really drive you batty (read blitzball). Fortunately, it appears to be mostly optional in this one.
The subtly tweaked combat system is sweet. The FMVs are incredible. Over all, two thumbs up.
Closest thing I can recall to compare it to was Kitt getting an invincible truck nemesis. Maybe someone can best me on this one.
Ahh...Goliath. Was there anything that truck couldn't do (besides actually defeat KITT, that is)?
Archos makes several products similar to the iPod. They have a 6 GB player for about $240 -- the only real differences are that it only has a 2MB buffer and it uses USB instead of Firewire. They also carry a 20GB model -- same size and everything. It's only $350.
They also make a 6GB model that allows you to record sound through a line-in (thus satisfying some of what some other people have indicated they want). This one runs about $270.
I don't know how these perform compared to the iPod (the significantly smaller amount of RAM might hurt it), but it's certainly cheaper. And you don'd have to wait for MediaFour to finish their development.
Everyone here keeps talking about generic marks, copyright, etc. The issue here is trademark. Adobe has a trademark both for "Adobe Illustrator" and for "Illustrator." One of the tests for registrability of a given mark is whether or not it is "simply descriptive" of the product or services to be offered under the mark (not "generic"). You can trademark all the words it the OED if you like... as long as they're not descriptive of the product you produce... or if you've garnered "secondary meaning" in the mark (i.e., market recognition).
Someone else has pointed out that Adobe has been producing the product for over a decade. This gives them secondary meaning without a doubt. Whether or not they should have been able to register the mark in the first place is a moot point now -- the mark has been registered and a lot of goodwill has been built up in it. Thus courts will side with Adobe.
You might be able to argue that names like Killustrator are eco-political satire (which, in a way, they are, given the us vs. them mentality that some members of the open source community has), but it is still going to be a loser. Most courts would call this "commercial speech," even though it's open source commerce. As commercial speech it would warrant less protection than "pure" speech.
However, situations like this can teach us a lesson. IP in American, and the rest of the world, is changing drastically. Adobe was able to get its mark registered in 1988 because it didn't occur to the examining attorney that "illustrator" would be descriptive of "computer programs" (the "goods" for which the mark was registered -- check out the TM search at www.uspto.gov). If you want IP law to keep up with the changes in IP, then we all need to work to inform law-makers and jurists of exactly what is going on. Some judges and legislators are working hard to understand how these new technologies are working (e.g., the Supreme Court in the CDA case, Judge O'Scanlain in the Rio case), but many of them are being faced with these issues for the first time when they're in their middle years (or later). Many of us have grown up with this stuff -- but many of the people in charge didn't. This just means they have to work a little harder to learn (kind of like picking up a second language -- it's whole lot harder than you native tongue).
If we can begin to help educate people, we can avoid things like the registration of "Illustrator." Another example is AIM vs. GAIM. I think that AIM is descriptive -- IM certainly is. There may be a problem with GAIM because it effectively incorporates AOL (where AIM stands for AOL instant messenger).
Regardless, this is yet another example of the problems with IP law right now. Copyright, etc. have always been behind the actual technology -- when you try to anticipate it, you often screw it up (see, e.g., the DMCA). Instead of just bitching, try to teach somebody about it -- thus smoothing the transition. Write a letter to the editor, or a letter to your congressman. Express you concerns and offer to help. Despite whatever cynicism you might have, many of them do care -- they could make a lot more money doing other things (like being sleazy lawyers... or not so sleazy lawyers).
While this has been covered somewhat by the other response, the nub of the argument hasn't really been touched. First of all, we don't really know what the "purpose" of the First Amendment is. The various people who supported its passage had different ideas; the individuals who supported it often had conflicting ideas (for example, Jefferson was a huge proponent of free speech, but the Alien and Sedition Act was passed during his presidency). The "purpose" (i.e., protection of political speech) has been read into the amendment by the courts; the amendment itself simply says "speech."
As for the whole state vs. federal discussion, I hate to break it to you, but the Constitution (and thus the amendments) are the supreme law of the land. The Utah constitution may provide a different level of protection than the federal constitution, but the federal constitution requires a minimum level of protection by which everyone must abide. I won't go into a lot of the details, but the simple fact is that UofU is a state university (not a private school) and as such it is probably an agent of the state. The weblog could be considered a public forum, and as such would receive a high level of protection. And I would say that very convicing (if not winning) arguments could be made against the constitutionality of the Utah criminal laws that were supposedly broken.
Anyway, while it is true that, as applied, the First Amendment offers various degrees of protection to different types of speech, unless that speech is obscene (and a lot of pornography doesn't even rise to that level), it will garner some protection. And yes, flag burning has been declared speech by the US Supreme Court.
Regardless, however, the legal arguments on both sides would be complex and not clear-cut. Getting an attorney wouldn't be such a bad idea given what's on the line (expulsion).
And you thought all those people driving around and talking on their cell phones were bad (not that I would ever do such a thing... ). My favorite part of the article (or maybe it's another I read about the same thing) is where it talks about the "kevlar-like" substance that covers all interior surfaces, except the floorboard. So all they need is a landmine or a frag grenade underneath, and they're all toast. Reminds me of the Bradley....
The legal responsibilities and restrictions are numerous, but there is one in particular that they will have to face and deal with: the obligation to maximize shareholder wealth. While a lot of people (some Slashdotters, for example) might buy into an IPO to support Mandrake, the vast majority of investors in a public offereing would be looking for a profit. If the company isn't run in a manner that would reasonably lead to that outcome, you get a hostile takeover by someone who will change the way the company is run (thus leading towards profit making... and possibly away from any sort of open-source philosophy) or who will bust up the company. It's simply a matter of economics. I'm all for making a profit -- and I think it can be done, even with an open-source philosophy. The question is can it be done now? I'm not sure if investors and consumers are willing to go that route yet.
Can't they look at their own experience?
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Killing Video Games
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· Score: 5
When my dad was a kid growing up in the 50s and 60s, kids got into fights all the time, they all owned air rifles (and shot them at each other), they played tackle football. They lived in a violent society. We didn't become so concerned about it as a society until we became so damn litigious. Sadly, as a law student, I fear that I may contribute to that (hopefully not -- ambulance chasing isn't in my career plan). Anyway, why don't these politicians just look to their own childhoods, look at the violence that was an inherent part of that time to see that video games are simply substitute for that real-violence lifesyle? I have an answer: because they're too far removed from the real world -- from real human experience -- for the most part to honestly and effectively repsond to these problems.
Yes, it is a fact that school shootings are occurring on an unprecedented scale, and that they are far more violent (in a single instance) than, say, the average fistfight. But overall, I think we live in a less violent society now. People are just so concerned about it because of the countless lawsuits, the media, and the politi-whores who make careers out of scaring the hell out of people.
Anyway, that's my.02 of rant for the day.
Apparently, DeCSS has already been incorporated into some artwork (see the letters in the new issue of 2600, Vol. 18:1, p. 39). I'd love to see the lawsuit over that. Or what if you got it as a tatoo? That would be quality.
Slashdot Mirror
Actually, there's a good argument that professional organizations (e.g., AMA, ABA, etc.) function to some extent to keep people out of the profession (through, e.g., licensing requirments, especially those beyond passing a board or bar exam, such as having a degree from an acredited school, or law's against unauthorized practice). This has a monopolistic effect, thus keeping supplies low and prices high. For a good discussion of this, see Richard Posner's Overcoming Law . And, for what it's worth, I am a lawyer. Unfortunately for me at least, the monopoly is fading (there's more and more overlap with CPAs in areas like tax and business law).
Actually, the "Playboy" (R) trademark is not used in association with the "sexual domain" -- it is used in connection with the products sold by Playboy Enterprises, Inc. (e.g., magazines, television programming, etc.). That follows your "Carpenters" example perfectly.
This sounds a little like the OceanStore Project that a friend of mine worked on in grad school.
Well, did he delete the file? ;)
"Jesus Christ, man! There's just some things you don't talk about in public!"
-- Brodie, Mallrats
I'm posting this as a general reply so I don't have to reply to each person who has said "The First Amendment isn't federl law!!!" The Constitution is a "Federal law," as are it's Amendments. It just happens to be the supreme law of the land, meaning that it is superior to all other law (statutes, regulations, common law, etc.).
While I certainly feel for Mr. Castillo, the Supreme Court has long ruled that obscenity is not protected by the First Amendment. See Miller v. California, 413 U.S. 15 (1973). This does not apply to speech that only rises to the level of "indecent." Whether something is obscene or not is determined based on local community standards. While I personally think that obscenity should be protected by the First Amendment (it says "Congress shall make no law..."), that's the law as it stands now ( and yes, case law is law too).
Also, I AM a lawyer.
And while I'm on it, can someone who is a lawyer tell me if we have a right to fair use or is it merely a thing that we've enjoyed because copyright holders couldn't ever get such a firm grip on it enough to effectively control it?
I am a lawyer. I am not completely sure on this issue, as I have not had a lot of time to research it. It appears as though the issue is split. Some courts refer to fair use as a right, some as a privelege.
Fair use is provided by statute, not the Constitution:
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Supreme Court has described it as follows: "Any individual may reproduce a copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to such a use." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984).
I don't think the issue has been presented to the courts in this manner (there haven't been many copy protection schemes for thinks like books, e.g., they aren't printed on red paper to stop photcopying). I would say that a court would hodl a content producer can use DRM, but if you hack the DRM, thus allowing you to make copies, you can make copies for various fair uses. However, the hacking itself (i.e, bypassing the DRM) may be illegal under the DMCA. This probably trumps the fair use right (remember, its source is statutory -- not constitutional) in that if you can't make copies legally, you can't exercise your fair use right/privilege.
Alas... the problem is that the various statutes are either out of date (e.g., Copyright Act) or responses to an uncertain environment, goaded by lobbyists (e.g., DMCA).
Nukes don't automatically generate EMP. The military found that the effect occurs when a nuke is detonated high above the ground.
Most law students do take a second Con Law course that covers the First Amendment, including the right to create parody (see, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988)). And I don't know to what state bar you are referring, but most of them will test on Constitutional issues (the Multistate does -- and most states use the Multistate). BTW, IAAL.
Actually, that is not true. As with many settlements, the settlement agreement in this case requires the defendant to give up more than money. To quote the Notice of Proposed Settlement:
"The Settlement Agreements with the Distributor Defendants and the Retailer Defendants each provide for injunctive relief. The Plaintiffs and Distributor Defendants have agreed to the entry of a permanent injunction, which would prohibit the Distributor Defendants for a period ending August 30, 2007 from adopting, maintaining, enforcing or threatening to enforce any policy, practice or plan which makes receipt of any cooperative advertising or other promotional funds contingent on the price or price level at which any product is advertised or promoted. Distributor Defendants would also be prohibited from agreeing with any dealers to control or maintain the resale price at which the Dealer may offer for sale or sell such Distributor Defendant's Product. Additionally, Distributor Defendants could not for a period ending August 30, 2005, announce resale or minimum advertised prices of product and unilaterally terminate those who fail to comply because of such failure. Distributor Defendants may however, announce suggested retail prices for their Product."
It's not perfect, but they're not walking by simply writing a check.
BTW, IAAL. And I DO wish they had handed out a pitchfork and goatee with my JD.
The problem is not that people are not seeing movies repeatedly (the article's prime example, Titanic, came out in the age of DVD and VHS). We know this because, as several other people have pointed out, movie box office takes are up. The problem is the much higher cost of making movies, where budgets often soar above the $100 million mark (remember when T2, with it's $100 million budget was unthinkable?). Now many movies have to be "blockbusters" to just break even. If anything, we can blame this trend on McCallum, Lucas and all the rest who keep pushing "digital" film making (whether its FX, new cameras, or what have you), which is far more expensive than traditional movie making techniques. Oh yeah, that and paying stars $20+ million to appear in a movie.
Good old Robot Life Insurance with Sam Watterson. Not a bad idea with all these damn Aibos running 'round.
This is one of the things that makes me the angriest about all of this (anti-CD copying, the Napster debacle, etc.). The price you pay for a CD already has the price of piracy (their supposed "losses") built into it. Sony and the like are never going to pay for piracy (i.e., lose money on it) -- they're simply going to pass this cost on to the consumers.
It's a lot like the signs you see in stores re: shoplifting or on the buggy corrals at the grocery store (where they effectively tell you to not steal or let your buggy get out of control in order to keep costs down for everyone).
Better yet, this idea has been discussed/recognized in at least one important judicial decision in this area: RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999)(upholding the legality of the Rio MP3 players). See specifically page 1074, footnote 1 of the opinion. Judge O'Scanlain seriously questions whether the recording industry actually suffers a loss from privacy. Instead, you and I suffer a loss because we pay more for CDs (ever notice that, in the 17 years since CDs were released, their MSRP -- about $18 on average -- hasn't gone down, despite how cheap it is to produce a CD?).
I'd love for this to happen -- I would finally be able to leave my crappy local cable company and still get network programming.
But let's face it -- I don't think that Echostar really cares that much about the First Amendment in this case. They simply want to be able to get everyone to buy their service, including those people, like myself, who have resisted getting a dish because of the SNAFU with getting network programming.
That said, I hope they win.
Even the quote from Campbell does not support what you claim. The "balance" between competing intererests (public good versus private ownership) is the only thing that the Copyright Clause really mandates. Fair use has been seen as a means to that end -- but the parameters of that means, of Fair Use, are statutory, and thus up to Congress (note that some requirements of Fair Use, e.g., publication, were dropped when it was incorporated in the 1976 Act). As noted by the Second Circuit Court of Appeals just last year, "Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement." Universal Studios,Inc. v. Corley, 273 F.3d 429, 458 (2d Cir. 2001)(emphasis added).
Sorry, but try reading the case next time. Folsom is an old District Court case that does NOT say that the extent of the copyright is Constitutionally mandated. And to quote the Supreme Court's opinion in Sony, 464 U.S. 417, 430 (1984), with the Court's citations included:
"Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly statutory. Wheaton v. Peters, 33 U.S. (8 Peters) 591, 661-662, 8 L.Ed. 1055 (1834). The remedies for infringement "are only those prescribed by Congress." Thompson v. Hubbard, 131 U.S. 123, 151, 9 S.Ct. 710, 720, 33 L.Ed. 76 (1889)."
Thanks. I'll be here all week.
I think what he means by "legal" rights versus constitutional rights is really a matter of "statutory" versus constitutional rights. The concept of legal rights encompasses both.
The fundamental concept of the article is correct. It does not, however, go far enough. While copyright is discussed/provided for in the Constitution; the extent of the "right" (i.e., what exactly the right is) is a product solely of statutes (here, the 1976 Copyright Act).
Not to "mix my metaphors," but how about The Increasingly Misnamed Final Fantasy.
BTW, for those of you who hated some of the game within a game sideplots (e.g., breeding chocobos, trading card games written in hex, etc.), this one will really drive you batty (read blitzball). Fortunately, it appears to be mostly optional in this one.
The subtly tweaked combat system is sweet. The FMVs are incredible. Over all, two thumbs up.
Closest thing I can recall to compare it to was Kitt getting an invincible truck nemesis. Maybe someone can best me on this one. Ahh...Goliath. Was there anything that truck couldn't do (besides actually defeat KITT, that is)?
Archos makes several products similar to the iPod. They have a 6 GB player for about $240 -- the only real differences are that it only has a 2MB buffer and it uses USB instead of Firewire. They also carry a 20GB model -- same size and everything. It's only $350.
They also make a 6GB model that allows you to record sound through a line-in (thus satisfying some of what some other people have indicated they want). This one runs about $270.
I don't know how these perform compared to the iPod (the significantly smaller amount of RAM might hurt it), but it's certainly cheaper. And you don'd have to wait for MediaFour to finish their development.
Everyone here keeps talking about generic marks, copyright, etc. The issue here is trademark. Adobe has a trademark both for "Adobe Illustrator" and for "Illustrator." One of the tests for registrability of a given mark is whether or not it is "simply descriptive" of the product or services to be offered under the mark (not "generic"). You can trademark all the words it the OED if you like... as long as they're not descriptive of the product you produce... or if you've garnered "secondary meaning" in the mark (i.e., market recognition).
.02.
Someone else has pointed out that Adobe has been producing the product for over a decade. This gives them secondary meaning without a doubt. Whether or not they should have been able to register the mark in the first place is a moot point now -- the mark has been registered and a lot of goodwill has been built up in it. Thus courts will side with Adobe.
You might be able to argue that names like Killustrator are eco-political satire (which, in a way, they are, given the us vs. them mentality that some members of the open source community has), but it is still going to be a loser. Most courts would call this "commercial speech," even though it's open source commerce. As commercial speech it would warrant less protection than "pure" speech.
However, situations like this can teach us a lesson. IP in American, and the rest of the world, is changing drastically. Adobe was able to get its mark registered in 1988 because it didn't occur to the examining attorney that "illustrator" would be descriptive of "computer programs" (the "goods" for which the mark was registered -- check out the TM search at www.uspto.gov). If you want IP law to keep up with the changes in IP, then we all need to work to inform law-makers and jurists of exactly what is going on. Some judges and legislators are working hard to understand how these new technologies are working (e.g., the Supreme Court in the CDA case, Judge O'Scanlain in the Rio case), but many of them are being faced with these issues for the first time when they're in their middle years (or later). Many of us have grown up with this stuff -- but many of the people in charge didn't. This just means they have to work a little harder to learn (kind of like picking up a second language -- it's whole lot harder than you native tongue).
If we can begin to help educate people, we can avoid things like the registration of "Illustrator." Another example is AIM vs. GAIM. I think that AIM is descriptive -- IM certainly is. There may be a problem with GAIM because it effectively incorporates AOL (where AIM stands for AOL instant messenger).
Regardless, this is yet another example of the problems with IP law right now. Copyright, etc. have always been behind the actual technology -- when you try to anticipate it, you often screw it up (see, e.g., the DMCA). Instead of just bitching, try to teach somebody about it -- thus smoothing the transition. Write a letter to the editor, or a letter to your congressman. Express you concerns and offer to help. Despite whatever cynicism you might have, many of them do care -- they could make a lot more money doing other things (like being sleazy lawyers... or not so sleazy lawyers).
My
While this has been covered somewhat by the other response, the nub of the argument hasn't really been touched. First of all, we don't really know what the "purpose" of the First Amendment is. The various people who supported its passage had different ideas; the individuals who supported it often had conflicting ideas (for example, Jefferson was a huge proponent of free speech, but the Alien and Sedition Act was passed during his presidency). The "purpose" (i.e., protection of political speech) has been read into the amendment by the courts; the amendment itself simply says "speech."
As for the whole state vs. federal discussion, I hate to break it to you, but the Constitution (and thus the amendments) are the supreme law of the land. The Utah constitution may provide a different level of protection than the federal constitution, but the federal constitution requires a minimum level of protection by which everyone must abide. I won't go into a lot of the details, but the simple fact is that UofU is a state university (not a private school) and as such it is probably an agent of the state. The weblog could be considered a public forum, and as such would receive a high level of protection. And I would say that very convicing (if not winning) arguments could be made against the constitutionality of the Utah criminal laws that were supposedly broken.
Anyway, while it is true that, as applied, the First Amendment offers various degrees of protection to different types of speech, unless that speech is obscene (and a lot of pornography doesn't even rise to that level), it will garner some protection. And yes, flag burning has been declared speech by the US Supreme Court.
Regardless, however, the legal arguments on both sides would be complex and not clear-cut. Getting an attorney wouldn't be such a bad idea given what's on the line (expulsion).
And you thought all those people driving around and talking on their cell phones were bad (not that I would ever do such a thing... ). My favorite part of the article (or maybe it's another I read about the same thing) is where it talks about the "kevlar-like" substance that covers all interior surfaces, except the floorboard. So all they need is a landmine or a frag grenade underneath, and they're all toast. Reminds me of the Bradley....
The legal responsibilities and restrictions are numerous, but there is one in particular that they will have to face and deal with: the obligation to maximize shareholder wealth. While a lot of people (some Slashdotters, for example) might buy into an IPO to support Mandrake, the vast majority of investors in a public offereing would be looking for a profit. If the company isn't run in a manner that would reasonably lead to that outcome, you get a hostile takeover by someone who will change the way the company is run (thus leading towards profit making... and possibly away from any sort of open-source philosophy) or who will bust up the company. It's simply a matter of economics. I'm all for making a profit -- and I think it can be done, even with an open-source philosophy. The question is can it be done now? I'm not sure if investors and consumers are willing to go that route yet.
When my dad was a kid growing up in the 50s and 60s, kids got into fights all the time, they all owned air rifles (and shot them at each other), they played tackle football. They lived in a violent society. We didn't become so concerned about it as a society until we became so damn litigious. Sadly, as a law student, I fear that I may contribute to that (hopefully not -- ambulance chasing isn't in my career plan). Anyway, why don't these politicians just look to their own childhoods, look at the violence that was an inherent part of that time to see that video games are simply substitute for that real-violence lifesyle? I have an answer: because they're too far removed from the real world -- from real human experience -- for the most part to honestly and effectively repsond to these problems. Yes, it is a fact that school shootings are occurring on an unprecedented scale, and that they are far more violent (in a single instance) than, say, the average fistfight. But overall, I think we live in a less violent society now. People are just so concerned about it because of the countless lawsuits, the media, and the politi-whores who make careers out of scaring the hell out of people. Anyway, that's my .02 of rant for the day.
Apparently, DeCSS has already been incorporated into some artwork (see the letters in the new issue of 2600, Vol. 18:1, p. 39). I'd love to see the lawsuit over that. Or what if you got it as a tatoo? That would be quality.