I think you are right about the free advertising, but with the free advertising comes a loss of control for the recording industry.
If the way you learn about new music changes from the industry promoted and payola controlled channels (radio, MTV, advertisements, etc.) to uncontrolled warez, then what the heck do artists need those money sucking, fat cat, no art producing labels execs for? How are the recording giants going to make a return from all the money they've spent promoting JLopes if in the end her music gets exactly the same exposure as the most talented garage band around.
The industry also realizes that setting up their own internet distribution cuts off the livelihood of a bunch of parasitic middlemen. For that reason, they aren't in any hurry to implement their own internet distribution system.
Can you say shameless, possibly illegal cartel? I knew you could
While copyrights laws are somewhat homogenized, the exceptions to the copyright holder's exclusive rights provided in the US are not. Things like fair use, reverse engineering, first sale doctrine, mandatory licensing are all either different or non existent in other Berne signatory countries. As an example, reverse engineering to develop a competiting product is forbidden under the EU directive that all member states are supposed to enact.
And of course whatever limits are imposed on copyright law due to first amendment considerations don't get the same consideration outside of the US.
So even though there is a great deal of agreement in the copyright laws of many countries, there are plenty of situations where US citizens can do things that would be considered copyright infringement in other countries. The reverse is also true. European law has some limits on what kinds of things can be signed away via a shrinkwrap license. If US software vendors wants to do business in France, should they be allowed to flaunt that French law with overly restrictive EULAs while their French competitors cannot? Should a French court enforce such an unfair situation?
The only rational way to work this is to allow the copyright holder to sue in the court where the infringing activity happens using the law in that court's country. That's also the only court where you can guarantee that the court even has jurisdiction over the infringer.
"I have to disagree with your assertion that a noninfringement opinion is of "dubious value." At
the beginning statges of development, you should have a decent draft of the program's requirements and some conception of its structure. It is at this point that a noninfringement opinion should be sought."
Maybe. But the original post said before ANY other development activity, so your statement is already more conservative than the original one. I never said that noninfringing opinions were of dubious value. I said pre development opinions were often (not always, not even usually) of dubious value.
PNG/MNG is a good example of a situation where an early opinion might have been a good idea, because the major reason for the projects existence was to work around a troublesome patent.
Getting a noninfringement opinion at the beginning of the development is often of dubious value, because at the early stages all you can determine is roughly what areas are heavily protected by patents. You aren't going to pay an attorney to give you an opinion on every patent in a given area, so you're going to need to make some decisions about what technology you plan to use in developing your project before you can get any kind of meaningful feedback.
At this point though, the PNG developers would be absolutely foolish not to get an opinion from a competent patent attorney. If they are found to be infringing Apple's patent after they knew about it, and declined to get an attorney's opinion, they are going to be found to be willful infringers which might mean treble damages and attorney's fees if they lose.
The biggest reason why there isn't a national portal for most of this stuff is that many of the functions are a matter of state law.
Car inspections, school registrations etc are not federal government functions.
Also I think civil liberties minded folks would be a little concerned about a centralized data base that had all this information in it. Besides the potential for official and unofficial abuse, you just know someone would come up with the idea to raise money by selling the database.
"They never represented the artists..it's the Recording industry they represent. They never had the artists interrest in mind."
Sure they do. First the scam the artists into signing over their interests to the recording industry, and then the RIAA protects those interests. Since the RIAA apparently is using some scummy and possibly extra-legal methods of separating the interest from the artists, at least some of what the RIAA protects really does belong to the artists.
If a revolution every did come, the RIAA and the MPAA would be the first up against the wall.
"and how would that work with the right to refuse self incriminiation?"
It wouldn't work in situations where a criminal defendant was asked to recite a key or a passphrase from memory. It probably would work if the defendant had the key on his person, or kept a log of keys that the court could subpoena.
On the other hand, if you aren't the target of the criminal prosecution, there are probably ways to grant you immunity that will overcome the problems with demanding your key.
"But the PTO will eventually have a vast store of software experience. They've been making movements to hire more examiners with a CS background."
Unfortunately, they don't pay enough money to get very experienced CS people. With a family of four to support, I couldn't afford to work there for 30-40k. Could you?
"In the meantime, software patents which should be invalid can be invalidated in court. It the patent is a stupid idea, then challenge it and get it overturned."
Of course once the PTO grants a patent, there is a heavy presumption that the patent is valid. That presumption means that if you are accused of infringement, your opponent will probably find it easy to get an injunction to shut you down until you get your day in court with the entire burden of production of evidence and proof in your opponents favor. Perhaps you'll just settle, eh.
"I think patenting software should be allowed, but examiners should be better trained to recognize obviousness."
I don't think the problem is with the examiners. I think the problem is that the legal definition for obviousness allows bad software patents to be granted and enforced in the courts. Perhaps someday when getting a software patent is the norm, and all of the important obvious stuff can be found in the patent office files, bad software patents will be the exception rather than the expectation. But till then, stand by.
Perhaps, but one of the difference is that the DMCA is a federal statute that does invoke a constitutional issue (the Commerce Clause) and thus there will be some constitutional balancing.
Trade secret law is a state issue and thus does not invoke a competing constitutional issue.
Finally, the court didn't say that it was okay to disclose DeCSS. They said that the government cannot act to prevent disclosure before it occurs by issuing an injunction. No prior restraint.
"Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA?
Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?"
It wasn't dealt with because the issue of whether Johansen did anything wrong was too difficult to decide without more facts, and because the court was able to decide the matter of the preliminary injunction without dealing with Johansen at all. If this case gets to a trial, even after both the trial and appellate courts have pointed out the huge holes in the plaintiff's case, then perhaps the rest of the issues will get hashed out.
I think it's infinitely better that the court ruled on the constitutional issue rather than ducking that issue and resting the decision on Johansen being a minor.
This ruling is in a state court (CA) and no other state court (NY) is obligated to follow that ruling in a different case. It's value is only that it can be used to persuade other states to follow suit.
The Supreme Court didn't hold any such thing. This is a state court of appeals ruling. The cases cited in the opinion as support for the ruling are federal court of appeals cases which were not appealed to the Supreme Court.
"So what happens if the industry agrees on a standard "nothing"?"
That just wouldn't happen. The copyright holders are going to want something while if we're lucky the device manufacturers will be at least partially opposed. The manufacturers won't want to drag their feet to the point where the government steps in and just mandates the copyright holder's position.
The idea of having a automated copyright enforcement system is just not feasible. Current copyright law is just riddled with exceptions that allow legal copying and other activity even without the copyright holder's permission. Most likely any rights management system will enforce a "get permission for anything" policy backed up by the DMCA which disallows bypassing the system even to exercise otherwise legal rights. Not that Hollings or any of a number of other legislators cares, but all of those exceptions are intended to balance the positions of copyright holders and the rest of the public.
"While this idea is great and all , there are currently major problems due to the state-by-state nature of it. For example, just like with bar tests, you need to be recertified in a new state if you move."
Isn't recertification for PE's in a new state typically just an administrative exercise, because states have comity arrangements?
New bar tests are a good idea for lawyers because laws vary from state to state.
The court didn't decide quite that much. The real point is that you can't use zoning laws to outlaw otherwise legal activity because that activity and the traffic it brings with it has secondary effects on the surrounding property owners. Where the activity isn't illegal and there aren't any secondary effects, zoning laws can't be used.
The whole point to showing that the activity was happening elsewhere was to demonstrate that there were no secondary effects, and not to show that the city had no jurisdiction.
If what was really going on was some activity that was illegal in the community, the defendant's could not have simply said, "we're not doing it here, we're doing it in cyberspace".
"So they didn't exactly sit on it for 9 years and then all of a sudden slam TiVo with a lawsuit."
Nope. It looks like they squatted for a mere five years rather than 9. Of course, you'd have to look at the original patent to see if the claims would have covered TiVOs implementation.
Incorporating patented technology into web standards won't destroy the web, it will instead make it more easily exploitable by patent holders. The result will be more content on the web than ever before, but the usages will tilt towards commercial, money making uses where the costs of licensing can be justified.
What you see as an enjoyable, free experience, others see as a wasted business opportunity that they could exploit if they could get the open source, and other little guys out of the way. Perhaps some of the participants have even more enmity towards open source than just competition.
Perhaps patents do create prosperity, but I suspect the post was sarcasm rather than trolling.
Let's examine some of the assertions in the post.
The company with the most capitalization has the most patents, so the patents must be the cause? Isn't it just as likely that heavily capitalized companies apply for lots of patents.
Without patents, people have no reason to form companies. That's just silly. People with no intention to patent anything form companies in order to make money. Patents are a tool not and end.
Without patents companies have no incentive to do research. Doesn't that ignore the fact that most new products do not involve patented technology.
Patents do provide an incentive to innovate, but they are not the only incentive.
The final paragraph ought to make it clear what th e posters actual position is. He's being sarcastic. Did you miss the point.
There is a requirement that participants disclose patents and public patent applications that they personally know of with no requirement to search through the company's portfolio even if they have a suspicion that the company might have a relevant patent.
Unless the participant is the company's patent attorney this "good faith" provision is easy to work around. The company will simply not inform the participant of the portfolio. The company can still pump the participant for info on how the standards work is going, and can still provide the participant direction that will lead the w3c to adopt the company's patented technology without violating the weak "good faith" provision.
Since patent applications are not public for the first 18 months, there is plenty of time for a participant to "in good faith" to commit the working group to a patented technology. If the applicant is willing to forgo foreign patents, the application won't be public until it issues, and thus no duty to disclose for the several years it takes for a patent to issue.
Further, unless the participant is a patent attorney, his opinion that a given technology does or does not infringe a patent is of no legal consequence. Only patent lawywers are able to give such a legal opinion.
Also troubling is that some member is opposed to required RAND licensing to entities outside the working group. It should be pretty clear what view that unknown member has concerning open standards.
And the mechanism for enforcement of the disclosure provision? Someone may have a defense when they get sued for patent infringement. I believe the findings of fraud in the RAMBUS case were all later reversed.
"This is old news. search slashdot for some articles posted in december/january."
Old news? Really?
So the fact that the postponed hearings for the bill will be later this month, when as recently as last week, Hollings' staff wouldn't discuss the bill when asked point blank about it isn't news?
Further I don't remember the details of the opposition from hardware manufacturers being discussed back in December either.
I guess when the bill is being debated in committee or is being voted on in the Senate, that won't be news either.
Hard drives, sound cards, cpus, monitors might all end up with SSSCA sub systems on them. Writing drivers to interact with those those things will probably requiring paying "reasonable" per cpu licensing fees. Undoubtably the reasonable license will require non disclosure either to comply with the law or because the license holder wants it that way. Those kinds of restrictions are utterly incompatible with an open source system.
Depending on what kind of system is adopted, if the system can be worked around at the OS level, clearly open source OSes would be seen as circumvention points. Bye bye open source OSes, I knew you well.
"That said, Microsoft seems to be simply protecting its file format. They can only affect software that can read protected WMA files (which, at this point, only includes Media Player)"
But the content does not belong to MS, so why should they have the retroactively remove your right to access content that you put into that format.
Your argument would apply equally well to the MS using their control over the format of MS Word documents to prevent you from accessing the content of documents you create.
"Who cares if they can. Do you check for the CDDA logo before you buy a CD?"
The point is that there ought to be some indication on the outside of the package that the CD might not play on your equipment, but what information is actually provided suggests that it's just as playable as every other CD out there.
"I would like to see the next version of the GPL including a clause granting FSF the right to sue on behalf of the copyrightholder(s.)"
That kind of clause would not be recognized by a court. The FSF wouldn't have standing to sue unless they were either assigned the copyright or they had an exclusive license to one or more of the the copyright holders rights.
Slashdot Mirror
I think you are right about the free advertising, but with the free advertising comes a loss of control for the recording industry.
If the way you learn about new music changes from the industry promoted and payola controlled channels (radio, MTV, advertisements, etc.) to uncontrolled warez, then what the heck do artists need those money sucking, fat cat, no art producing labels execs for? How are the recording giants going to make a return from all the money they've spent promoting JLopes if in the end her music gets exactly the same exposure as the most talented garage band around.
The industry also realizes that setting up their own internet distribution cuts off the livelihood of a bunch of parasitic middlemen. For that reason, they aren't in any hurry to implement their own internet distribution system.
Can you say shameless, possibly illegal cartel? I knew you could
While copyrights laws are somewhat homogenized, the exceptions to the copyright holder's exclusive rights provided in the US are not. Things like fair use, reverse engineering, first sale doctrine, mandatory licensing are all either different or non existent in other Berne signatory countries. As an example, reverse engineering to develop a competiting product is forbidden under the EU directive that all member states are supposed to enact.
And of course whatever limits are imposed on copyright law due to first amendment considerations don't get the same consideration outside of the US.
So even though there is a great deal of agreement in the copyright laws of many countries, there are plenty of situations where US citizens can do things that would be considered copyright infringement in other countries. The reverse is also true. European law has some limits on what kinds of things can be signed away via a shrinkwrap license. If US software vendors wants to do business in France, should they be allowed to flaunt that French law with overly restrictive EULAs while their French competitors cannot? Should a French court enforce such an unfair situation?
The only rational way to work this is to allow the copyright holder to sue in the court where the infringing activity happens using the law in that court's country. That's also the only court where you can guarantee that the court even has jurisdiction over the infringer.
"I have to disagree with your assertion that a noninfringement opinion is of "dubious value." At
the beginning statges of development, you should have a decent draft of the program's requirements and some conception of its structure. It is at this point that a noninfringement opinion should be sought."
Maybe. But the original post said before ANY other development activity, so your statement is already more conservative than the original one. I never said that noninfringing opinions were of dubious value. I said pre development opinions were often (not always, not even usually) of dubious value.
PNG/MNG is a good example of a situation where an early opinion might have been a good idea, because the major reason for the projects existence was to work around a troublesome patent.
Getting a noninfringement opinion at the beginning of the development is often of dubious value, because at the early stages all you can determine is roughly what areas are heavily protected by patents. You aren't going to pay an attorney to give you an opinion on every patent in a given area, so you're going to need to make some decisions about what technology you plan to use in developing your project before you can get any kind of meaningful feedback.
At this point though, the PNG developers would be absolutely foolish not to get an opinion from a competent patent attorney. If they are found to be infringing Apple's patent after they knew about it, and declined to get an attorney's opinion, they are going to be found to be willful infringers which might mean treble damages and attorney's fees if they lose.
The biggest reason why there isn't a national portal for most of this stuff is that many of the functions are a matter of state law.
Car inspections, school registrations etc are not federal government functions.
Also I think civil liberties minded folks would be a little concerned about a centralized data base that had all this information in it. Besides the potential for official and unofficial abuse, you just know someone would come up with the idea to raise money by selling the database.
"They never represented the artists..it's the Recording industry they represent. They never had the artists interrest in mind."
Sure they do. First the scam the artists into signing over their interests to the recording industry, and then the RIAA protects those interests. Since the RIAA apparently is using some scummy and possibly extra-legal methods of separating the interest from the artists, at least some of what the RIAA protects really does belong to the artists.
If a revolution every did come, the RIAA and the MPAA would be the first up against the wall.
"and how would that work with the right to refuse self incriminiation?"
It wouldn't work in situations where a criminal defendant was asked to recite a key or a passphrase from memory. It probably would work if the defendant had the key on his person, or kept a log of keys that the court could subpoena.
On the other hand, if you aren't the target of the criminal prosecution, there are probably ways to grant you immunity that will overcome the problems with demanding your key.
Sealawyer
"But the PTO will eventually have a vast store of software experience. They've been making movements to hire more examiners with a CS background."
Unfortunately, they don't pay enough money to get very experienced CS people. With a family of four to support, I couldn't afford to work there for 30-40k. Could you?
"In the meantime, software patents which should be invalid can be invalidated in court. It the patent is a stupid idea, then challenge it and get it overturned."
Of course once the PTO grants a patent, there is a heavy presumption that the patent is valid. That presumption means that if you are accused of infringement, your opponent will probably find it easy to get an injunction to shut you down until you get your day in court with the entire burden of production of evidence and proof in your opponents favor. Perhaps you'll just settle, eh.
"I think patenting software should be allowed, but examiners should be better trained to recognize obviousness."
I don't think the problem is with the examiners. I think the problem is that the legal definition for obviousness allows bad software patents to be granted and enforced in the courts. Perhaps someday when getting a software patent is the norm, and all of the important obvious stuff can be found in the patent office files, bad software patents will be the exception rather than the expectation. But till then, stand by.
Perhaps, but one of the difference is that the DMCA is a federal statute that does invoke a constitutional issue (the Commerce Clause) and thus there will be some constitutional balancing.
Trade secret law is a state issue and thus does not invoke a competing constitutional issue.
Finally, the court didn't say that it was okay to disclose DeCSS. They said that the government cannot act to prevent disclosure before it occurs by issuing an injunction. No prior restraint.
"Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA?
Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?"
It wasn't dealt with because the issue of whether Johansen did anything wrong was too difficult to decide without more facts, and because the court was able to decide the matter of the preliminary injunction without dealing with Johansen at all. If this case gets to a trial, even after both the trial and appellate courts have pointed out the huge holes in the plaintiff's case, then perhaps the rest of the issues will get hashed out.
I think it's infinitely better that the court ruled on the constitutional issue rather than ducking that issue and resting the decision on Johansen being a minor.
No effect.
This ruling is in a state court (CA) and no other state court (NY) is obligated to follow that ruling in a different case. It's value is only that it can be used to persuade other states to follow suit.
The Supreme Court didn't hold any such thing. This is a state court of appeals ruling. The cases cited in the opinion as support for the ruling are federal court of appeals cases which were not appealed to the Supreme Court.
Sealawyer
"So what happens if the industry agrees on a standard "nothing"?"
That just wouldn't happen. The copyright holders are going to want something while if we're lucky the device manufacturers will be at least partially opposed. The manufacturers won't want to drag their feet to the point where the government steps in and just mandates the copyright holder's position.
The idea of having a automated copyright enforcement system is just not feasible. Current copyright law is just riddled with exceptions that allow legal copying and other activity even without the copyright holder's permission. Most likely any rights management system will enforce a "get permission for anything" policy backed up by the DMCA which disallows bypassing the system even to exercise otherwise legal rights. Not that Hollings or any of a number of other legislators cares, but all of those exceptions are intended to balance the positions of copyright holders and the rest of the public.
"While this idea is great and all , there are currently major problems due to the state-by-state nature of it. For example, just like with bar tests, you need to be recertified in a new state if you move."
Isn't recertification for PE's in a new state typically just an administrative exercise, because states have comity arrangements?
New bar tests are a good idea for lawyers because laws vary from state to state.
I don't see either situation as a problem at all.
The court didn't decide quite that much. The real point is that you can't use zoning laws to outlaw otherwise legal activity because that activity and the traffic it brings with it has secondary effects on the surrounding property owners. Where the activity isn't illegal and there aren't any secondary effects, zoning laws can't be used.
The whole point to showing that the activity was happening elsewhere was to demonstrate that there were no secondary effects, and not to show that the city had no jurisdiction.
If what was really going on was some activity that was illegal in the community, the defendant's could not have simply said, "we're not doing it here, we're doing it in cyberspace".
Isaac
"So they didn't exactly sit on it for 9 years and then all of a sudden slam TiVo with a lawsuit."
Nope. It looks like they squatted for a mere five years rather than 9. Of course, you'd have to look at the original patent to see if the claims would have covered TiVOs implementation.
Incorporating patented technology into web standards won't destroy the web, it will instead make it more easily exploitable by patent holders. The result will be more content on the web than ever before, but the usages will tilt towards commercial, money making uses where the costs of licensing can be justified.
What you see as an enjoyable, free experience, others see as a wasted business opportunity that they could exploit if they could get the open source, and other little guys out of the way. Perhaps some of the participants have even more enmity towards open source than just competition.
Perhaps patents do create prosperity, but I suspect the post was sarcasm rather than trolling.
Let's examine some of the assertions in the post.
The company with the most capitalization has the most patents, so the patents must be the cause? Isn't it just as likely that heavily capitalized companies apply for lots of patents.
Without patents, people have no reason to form companies. That's just silly. People with no intention to patent anything form companies in order to make money. Patents are a tool not and end.
Without patents companies have no incentive to do research. Doesn't that ignore the fact that most new products do not involve patented technology.
Patents do provide an incentive to innovate, but they are not the only incentive.
The final paragraph ought to make it clear what th e posters actual position is. He's being sarcastic. Did you miss the point.
There is a requirement that participants disclose patents and public patent applications that they personally know of with no requirement to search through the company's portfolio even if they have a suspicion that the company might have a relevant patent.
Unless the participant is the company's patent attorney this "good faith" provision is easy to work around. The company will simply not inform the participant of the portfolio. The company can still pump the participant for info on how the standards work is going, and can still provide the participant direction that will lead the w3c to adopt the company's patented technology without violating the weak "good faith" provision.
Since patent applications are not public for the first 18 months, there is plenty of time for a participant to "in good faith" to commit the working group to a patented technology. If the applicant is willing to forgo foreign patents, the application won't be public until it issues, and thus no duty to disclose for the several years it takes for a patent to issue.
Further, unless the participant is a patent attorney, his opinion that a given technology does or does not infringe a patent is of no legal consequence. Only patent lawywers are able to give such a legal opinion.
Also troubling is that some member is opposed to required RAND licensing to entities outside the working group. It should be pretty clear what view that unknown member has concerning open standards.
And the mechanism for enforcement of the disclosure provision? Someone may have a defense when they get sued for patent infringement. I believe the findings of fraud in the RAMBUS case were all later reversed.
"This is old news. search slashdot for some articles posted in december/january."
Old news? Really?
So the fact that the postponed hearings for the bill will be later this month, when as recently as last week, Hollings' staff wouldn't discuss the bill when asked point blank about it isn't news?
Further I don't remember the details of the opposition from hardware manufacturers being discussed back in December either.
I guess when the bill is being debated in committee or is being voted on in the Senate, that won't be news either.
Digusted
There would be even more difficulties for linux.
Hard drives, sound cards, cpus, monitors might all end up with SSSCA sub systems on them. Writing drivers to interact with those those things will probably requiring paying "reasonable" per cpu licensing fees. Undoubtably the reasonable license will require non disclosure either to comply with the law or because the license holder wants it that way. Those kinds of restrictions are utterly incompatible with an open source system.
Depending on what kind of system is adopted, if the system can be worked around at the OS level, clearly open source OSes would be seen as circumvention points. Bye bye open source OSes, I knew you well.
"That said, Microsoft seems to be simply protecting its file format. They can only affect software that can read protected WMA files (which, at this point, only includes Media Player)"
But the content does not belong to MS, so why should they have the retroactively remove your right to access content that you put into that format.
Your argument would apply equally well to the MS using their control over the format of MS Word documents to prevent you from accessing the content of documents you create.
"Who cares if they can. Do you check for the CDDA logo before you buy a CD?"
The point is that there ought to be some indication on the outside of the package that the CD might not play on your equipment, but what information is actually provided suggests that it's just as playable as every other CD out there.
"Without a license you can't use the logo due to copyright and tradmark issues, unless you are doing so under fair use."
And what would be more clearly fair use than using the logo in a piece critiquing the logo policy?
"I would like to see the next version of the GPL including a clause granting FSF the right to sue on behalf of the copyrightholder(s.)"
That kind of clause would not be recognized by a court. The FSF wouldn't have standing to sue unless they were either assigned the copyright or they had an exclusive license to one or more of the the copyright holders rights.