may itself be actionable (in other words, flyingbuttmonkeys.com could have a countersuit against this company if there's no IP to have been misappropriated). For example, in Cardtoons v. Major League Baseball Players Association, 208 F.3d 885 (10th Cir. 2000)(holding that private threats of intellectual property litigation are not immune under the Noerr-Pennington doctrine when they do not arise under the Sherman Act, nor under the First Amendment because they do not involve petitions to the government). See also American Broadcasting Co. v. Maljack Productions Inc. (sorry, I don't have the cite), where a court refused to dismiss a claim under Section 43(a) of the Lanham Act where a cease and desist letter overstated the scope of plaintiffs rights.
You're right that pot was first federally prohibited in the 30's. But aggressive enforcement of this prohibition occurred in the 70's under Nixon, after at least a decade of almost no enforcement. When the stakes went up, organized crime began to take a much bigger interest, because the profits went up as well.
Both copyright law and the DCMA (IIRC) have criminal penalties that can be applied to violators. My point is that it won't be long before these begin to be applied in order to make examples of those who ignore rulings like Kaplan's (assuming that his decision holds up on appeal). It's doubtful that many of those currently linking to software like DeCSS will continue to do so under such an enforcement regime. Since the demand for such software will not disappear, those organizations that specialize in handling these kinds of risks will fill that vacuum.
I have a better analogy than Jack Valenti's pithy masterpiece. Making linking illegal is like criminalizing possession and distribution of marijuana. I'm not taking a stand here on whether criminalizing marijuana was incredibly stupid (it was); I'm just making a comparison. Think about it.
Before Nixon criminalized marijuana:
Pot is distributed (and imported) by stoner college kids.
After Nixon criminalized marijuana:
Pot is distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
Before DCMA/Judge Kaplan:
Arguably naughty software is obtained by following a link to a server where the software is stored.
After DCMA/Judge Kaplan/other brilliant jurists who follow the reasoning in the 2600 decision:
Arguably naughty software gets distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
This observation is something that I've been thinking about more and more lately. Medical science and technological and societal infrastructures seem to have all but eliminated natural selection in humans, at least among those living in modern technological societies. Those with genetic susceptibility to horrible diseases are more often able to survive and reproduce, in effect doing an end run around the natural selection process. Will this result in a divergence between humans that have lived in these societies for long periods of time and those that have not? And will our increasing reliance on technology result in an even greater reliance in the future? For example, will once-discredited ideas about eugenics make a comeback as the primary available avenue for evolution among technologically advanced humans becomes limited to genetic modification and screening?
I can see how you might interpret my comments as racist, but quite honestly, they are not. If I believed that they had truly developed this on their own, I would be quite happy to give them credit. My recollection, however, of numerous news stories a few months back is that several U.S. aerospace companies were under investigation for having illegally transferred to the Chinese technology that could be used to solve various problems they had been having with the Long March (namely, it blows up a lot).
What you fail to recognize is that the "Long March" rockets would blow up on a very precise and regular basis right up until U.S. aerospace companies helped them out with new technology.
Oh, really? I wonder if you'll be singing the same song when "Chinese scientists" suddenly develop Keyhole-type spy satellites and Star Wars type defenses that remarkably resemble the work done in the U.S. in the 1980's (and that coincidentally after numerous additional cases of espionage and "technology exchange" with borderline treasonous U.S. companies). What happens when the Chinese start selling these capabilities to our pals in North Korea, Iran, Iraq, etc. etc.
The world is a much more dangerous place because of this, and responsibility for this rests in large part with our brilliant leaders and strategists.
Not to diminish what they've done, but the Party statements quoted in the BBC article are just hilarious: this was done using technology developed by Chinese scientists? Well, maybe. But I'm guessing some of that "development" occurred in the U.S., by U.S. scientists, was purloined, and sent back, either as the result of espionage, or as the result of (IMHO) illegal deals struck with U.S. aerospace companies while Big Brother Bill looked the other way (he was busy preventing any crypto exports).
Actually, what he says seems to track pretty well with what I have observed of COS adherents, both in media interviews and in person. Hell, one way that they get people in the door is by appealing for their need to feel intelligent (free IQ tests) or in control of their lives (Dianetics (TM) -- don't want to get sued now, do I?)
Sometimes stereotypes exist because, overall, they are pretty accurate. Generalizing isn't always bad. Sometimes it gets called inductive reasoning.
But they had a powerful reason to settle even before the findings were issued, because of the uncertainty surrounding what the judge was going to do, what effect his decision would have on their stock price, etc.
The only layer of free will that is missing from my statement is the decision that most of us make to the effect that we do not desire to lose all of our stuff and/or become a guest of the state at one of its fine penal institutions. The way to do this is by obeying the law (assuming that one is risk averse and that there is a positive risk of getting caught -- ever watched America's Most Wanted?).
Yes, people do break the law without firearms getting involved. Those people don't get caught. Those who do get caught are subject to punishment, which they accept or they are subjected to violence.
Obedience to the law does not come from doing what you think is right (which also happens to be legal). Obedience to the law arises when someone does not do something that he is inclined to do because it is against the law. He/she subjects his will to the law because to do otherwise is to risk violence to his person or property. Those who obey the law do so under the explicit or implicit threat of violence. The state has, for better or worse, arrogated to itself what amounts to a monopoly on the use of force to coerce conduct. If you believe otherwise, then the matrix has you.
"Are you suggesting bad laws would be better if police were unarmed? Or good laws would be worse if everyone was armed?"
Neither. Although I occasionally do find myself wondering whether we would have or need as many laws as we have if everyone was armed. Particularly if those armed individuals were known to keep themselves informed of the voting records of their elected representatives.
The law is based on violence because, ultimately, obedience to law is enforced by people with guns. I'm not talking about just criminal law here, but civil law as well. Why do you think most people obey the ever-increasing raft of ridiculous and arbitrary laws imposed on them by the "elected" representatives in federal, state, and local government? For example, why should someone respect a software patent that they believe deep down is hopelessly invalid, despite a verdict from a clueless litigation jury that the patent is valid? Why pay damages when they are found to infringe the patent? It's because if they don't pay, people with guns (the sheriff) come to their house, take their stuff, and auction it off at fire-sale prices to pay the judgment. And if there's not enough $ from the auction to satisfy the judgment, when the loser gets more stuff, the sheriff will auction that off too. They don't teach you this in high school civics class, but I think you'll find that this is how things really work.
Louis Brandeis said, "Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means."
Clearly, this judge does not share either the intellectual capital or political leanings of Justice Brandeis. The notion that a flame war constitutes "fighting words" (which are not protected under the First Amendment) is nonsensical, and certainly unsupported by any empirical evidence that flame wars are likely to cause one of the participants to react with physical violence. In any event, the judges order appears to function as a very broad prior restraint. Statutes the prohibited speech that "stirs the public to anger or invites dispute" have been struck down as constitutionally overbroad. How constitutional can a judge's order that Usenet postings must be "on topic" be?
Clearly the judge's order is not a narrowly tailored, content-neutral, "time, place, and manner" restriction and do not serve a significan government interest. Usenet is basically a wide-open public forum, and the judge's attempt to moderate it is not a "legitimate public function."
Judges get away with this kind of unconstitutional crap because they exercise power in the form of an injunction. If this guy violates it and is held in contempt, he may not be able to raise the unconstitutionality of the judge's order as a defense (see Walker v. City of Birmingham, 388 U.S. 307 (1967) (dealing with contempt resulting from injunction under a facially invalid statute). Probably this guy doesn't have the means to appeal the injunction, so he's got no choice but to obey it. Once again, the law works to the advantage of those with power and money.
Normally, I think that I'm a pretty reasonable person, but the notion that the gov't should step in with more regulation of the internet and that bad behavior by marketing slimeballs should be the reason is so completely offensive to me that I find I must agree with the Lumber Cartel approach.
I receive hundreds of emails on a typical day. Probably 95% of these are legitimate, non-spam. While it's easy to "just say delete", I still waste time dealing with the 5% of my email that is spam; not only do these Ponzi scheme salesman disregard my privacy, they have become increasingly clever at camouflaging their subject lines and sender names making it more difficult to delete without opening the mail and reading it to determine if it is legit (also validating the theory that they do, in fact, possess a rudimentary intelligence, perhaps on the order of that of an insect). Over time, this waste adds up (and is merely the wasted time of one person. Add this to the financial burden on infrastructure created by these idiots, and it's clear DMA users are free-riding pond scum).
Asking the gov't for help is going to open a can of worms, and unlikely to result in any useful regulation anyway. Does anyone really think that the voices and votes of those who are pissed off by spam will have any weight against the $$ of lobbying groups paid for by DMA and its members? I don't. The result of any regulation would likely still allow spam to be sent under a set of conditions that would broaden each time the regulations were revisited (which would be like voting in Chicago: early and often).
The DMA and its members understand one thing: profit. As long as they can externalize the bulk of the costs of their activities onto the voiceless entity in the middle (the ISP) and the typical, relatively powerless recipient, there is no incentive for them to stop. But the notion that time is money is a double-edged sword (how is that for a mixed metaphor?). Since neither the ISP's nor the gov't is likely to force DMA and its members to bear the true cost of their activities, perhaps the more technologically savvy among DMA's victim/recipients should do so (without violating any laws, of course). If it is legal for DMA to disregard recipient preferences and send unsolicited email until told to stop, then why should it be illegal or immoral for others to do the same to DMA executives and employees?
Actually, it really isn't that important where your patent lawyer is if you are interested merely in having patent applications drafted, filed, and prosecuted. In fact, there is a special bar exam given by the patent office that lawyers and nonlawyers alike must take to do this kind of work: in short, you do not need to be a lawyer to do patent application work.
You may have gotten the wrong impression from some of the previous/. discussion on patents. The one-year grace period functions to give the inventor a year in which to file, not necessarily his competitors. It's important to keep in mind that the U.S. is a first-to-invent country (unlike most other countries, which are first to file).
(1) Any "enabling" publication with a date more than one year prior to the patent application date is an absolute statutory bar to patenting the invention described in the publication.
(2) If a patent application is filed within one year of publication, a different part of the statute controls. (a) If the publication's authors are the same as the inventors of the patent application, the publication is not prior art against the application, because the publication was not (and could not have been) published prior to the invention of the subject matter by the inventors of the application. (b) If the publication's authors are different from the inventors of the patent application (i.e., the publication was by another), the the patent applicants must show that they invented the subject matter prior to the publication date.
Putting this into English, if someone else files a patent application today to an invention that you published less than one year ago, they will have to prove that they invented the subject matter prior to the publication date. This is frequently difficult to do, since it requires some corroboration and supporting evidence (such as properly signed and witnessed lab notebooks, etc.).
Many contingency fee lawyers do enable those of modest means to defend their rights. What often happens, however, is that the lawyer's interest motivate him to take courses of action that may not be in his client's best interest, and to use his knowledge/skills to persuade the client to do what makes the lawyer the most profit. For example, some contingency fee lawyers are famous for attempting to convince their clients to file cases that are marginal at best, then to settle the cases early on (typically taking a 1/3 cut, of course). Corporations knuckle under to this sort of crap because their decision-makers (a pretty risk averse lot) don't want to chance being tagged with a verdict from a clueless judge or jury that is incapable of understanding the technology. In other circumstances, they will drive a meritless case forward, e.g., after losing at trial or on summary judgment, because the only way for the lawyer to make money is by throwing the dice again on appeal.
I think that you are much more likely to get impartial advice from lawyers that you pay by the hour, and who don't have a financial stake in the outcome of the litigation.
On sofware patents, business method patents, etc., I don't disagree with you. Things have gone too far.
I can certainly see your point. Everything that I've read about this guy that was written by anyone besides dumbasses in the media has been uniformly negative.
I disagree, however, with the notion that interviewing him is wrong because it provides him with a forum. I really doubt that anyone who reads/. is going to be fooled by anything that this guy says. More importantly, the level of questions likely to be submitted to him (if the use of the term "grill" in the announcement is any guide) are probably going to point out his ignorance. He's likely to provide answers that make clear that he is (1) being evasive, (2) completely clueless about the question asked, or (3) irrational and combative. Rather than providing a forum for him to proselytize,/. is likely to highlight his true nature as a buffoon in a very public way. If I were him, I'd be shitting my pants right about now, since I would know that every bullshit answer that I gave would be instantly mirrored all over the place. And it's tough to sue if you've been quoted correctly.
Their practice involves a lot of representation of plaintiffs (i.e., patentees), sometimes on a contingency fee basis. Something that I would think most slashdotters would not find particularly attractive.
Where I work, we started out using only Netscape as the browser. Then IE got installed. Then the IT Grand Poohbah decided that IT would no longer support Netscape, just IE. The (in my view complete bullshit) reason given was that the rest of the system was M$ (NT server, WIN95 clients, M$ Office and Outlook, etc.) Netscape is still available on the desktop, but over time, as the firm intranet becomes more and more optimized for IE, the loss of functionality when using Netscape is extremely noticeable, and I get nasty Javascript error messages (so I turn it off). I continue to use Netscape because I'll be damned if I use IE, but eventually I'll have no choice. My guess is this type of thing is occurring in other shops as well, and will continue to occur in the future, irrespective of what Netscape 5.0 is like.
It certainly is an interesting problem. I'm not sure that the judgment-proof nature of the individuals is as helpful as you indicate. Judgments attach and remain enforceable for a long time, and CS students or individuals capable of writing code at this level stand a good chance of making a good living, and of thus having to pay out money at some point in the future.
I'm trying to figure out how this could be structured to make it work in a way that avoids exploitation by M$ of a prisoner's dilemma situation. It seems as though the inventors (e.g., the impoverished student that you mention) would have to transfer completely his right to sue/ownership interest to the nonprofit corporation, in exchange for ? (an obligation on the part of the nonprofit to sue, based on all applicable pool patents, M$ or anyone else who sues the student for patent infringement?). That's a pretty expensive obligation, and not a very credible threat to M$ if the nonprofit isn't VERY well-funded. Although there may be enough open source advocates among patent litigators that can do this pro bono, conflicts issues and opportunity costs may shrink this pool more than you might think.
You raise some interesting points, and I feel certain that I haven't fully understood what you are proposing, but how do you propose to deal with the following situation with respect to your hypothetical patent pool:
As a patent attorney, you undoubtedly have seen the situation where Large Corporation (for fun, let's use the totally fictitious designation "M$") approaches small corporation or independent developer, plunks down a portfolio of 20 patents, and says "Prove to me that your product doesn't infringe one or more of these." Faced with potential damages and legal costs sufficient to bankrupt him, even the most pissed off small corp. or individual will usually back down and either get out of the business or take a license if there is any substantial possibility of getting tagged for infringement on any of the patents.
Now, suppose the M$ approaches the patent pool, and threatens each of its members the same way, but instead of demanding that they cease and desist, or that they take a license to M$ patents, M$ demands an exclusive license (with right to sue for infringement) to the pool patents.
There is an internal "Quality Review System", but it's a joke. They only sample a small number of applications, and concentrate on finding nitpicky procedural problems to send back to the examiner (see my response above regarding quotas: the quality review people also operate on (you guessed it) a quota system). The people who do the quality review are even less aware of what is going on in the field than the examiners, and just add another layer of bureaucracy. All I can suggest is that you make your displeasure known in the strongest possible terms to the PTO, Congress, the Commerce Department, etc., and suggest that the resources devoted to increasing examination quality be increased(e.g., by getting the examiners on field trips to development houses to see what's conventional in the field), providing better prior art repositories etc. Again, the people who read this site are probably some of the best positioned to know what is conventional in software development, to publish on these topics, and to get the published material into the hands of the PTO for inclusion in its prior art collection (or, e.g. on a website with bombproof date-stamping that examiners can be made aware of and can check for art).
(1) a clearance opinion is a letter from a patent attorney that analyzes the patent claims, specification, and the patent office file, possibly additional prior art, and possibly the accused device, and states that the accused device does not infringe, the patent is invalid, or both, with detailed analysis as to why this is the case. The opinion "clears" the device in the U.S. to the extent that it can be used as an "advice of counsel" defense to charges that the infringement was "willful," so that the patentee gets increased damages.
(2)I'm not sure what you mean by a "dispute stage". The PTO has an internal appeals procedure for applicants who have had their patent applications denied by the patent examiner. If the applicants lose at this stage, they can pursue their appeal in court. The PTO also has a "reexamination" procedure, where anyone can submit prior art to the PTO and argue that the prior art raises a substantial new question as to whether the patent should have been issued. This isn't done too often (I know it sounds good) because the requester can't participate after the initial request is filed. After that, it's just the patent owner and the PTO examiner. Statistically, most patents come through the process with at least some claims, and these claims are stronger (will hold up better in court) as a result. In addition, you can't use prior art in reexamination that the examiner considered the first time through, no matter how badly they botched its interpretation.
As far as providing incentives, you're going to love this. The PTO rewards examiners on a "production system" (I know because I used to be an examiner). The examiner's have a rigid quota that they have to meet, and get points if they reject an application for the first time, if they allow an application to become a patent, if they answer an appeal to the PTO Board of Appeals, or if the case becomes abandoned. Their performance ratings are based on meeting these production goals (which haven't been changed since the 60's), and they are rewarded if they exceed their goals.
The result is that some examiner's play the system so as to reject the applications a few times, forcing applicants to "refile", and then allowing the applications (because an allowance is an easier way to get a "counter" than writing an appeal brief).
There are some rays of light on the horizon, however. I believe that the House has approved a bill that would modify the reexamination procedure to allow considerably more requester participation (at a considerably higher fee, but still way cheaper than litigation). Also, there are periodic roundtable discussions, etc., on these kinds of issues. Finally, check out the PTO website (http://www.pto.gov) for info about making your voices heard.
Slashdot Mirror
may itself be actionable (in other words, flyingbuttmonkeys.com could have a countersuit against this company if there's no IP to have been misappropriated). For example, in Cardtoons v. Major League Baseball Players Association, 208 F.3d 885 (10th Cir. 2000)(holding that private threats of intellectual property litigation are not immune under the Noerr-Pennington doctrine when they do not arise under the Sherman Act, nor under the First Amendment because they do not involve petitions to the government). See also American Broadcasting Co. v. Maljack Productions Inc. (sorry, I don't have the cite), where a court refused to dismiss a claim under Section 43(a) of the Lanham Act where a cease and desist letter overstated the scope of plaintiffs rights.
You're right that pot was first federally prohibited in the 30's. But aggressive enforcement of this prohibition occurred in the 70's under Nixon, after at least a decade of almost no enforcement. When the stakes went up, organized crime began to take a much bigger interest, because the profits went up as well.
Both copyright law and the DCMA (IIRC) have criminal penalties that can be applied to violators. My point is that it won't be long before these begin to be applied in order to make examples of those who ignore rulings like Kaplan's (assuming that his decision holds up on appeal). It's doubtful that many of those currently linking to software like DeCSS will continue to do so under such an enforcement regime. Since the demand for such software will not disappear, those organizations that specialize in handling these kinds of risks will fill that vacuum.
I have a better analogy than Jack Valenti's pithy masterpiece. Making linking illegal is like criminalizing possession and distribution of marijuana. I'm not taking a stand here on whether criminalizing marijuana was incredibly stupid (it was); I'm just making a comparison. Think about it.
Before Nixon criminalized marijuana:
Pot is distributed (and imported) by stoner college kids.
After Nixon criminalized marijuana:
Pot is distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
Before DCMA/Judge Kaplan:
Arguably naughty software is obtained by following a link to a server where the software is stored.
After DCMA/Judge Kaplan/other brilliant jurists who follow the reasoning in the 2600 decision:
Arguably naughty software gets distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
Coincidence? We'll see.
This observation is something that I've been thinking about more and more lately. Medical science and technological and societal infrastructures seem to have all but eliminated natural selection in humans, at least among those living in modern technological societies. Those with genetic susceptibility to horrible diseases are more often able to survive and reproduce, in effect doing an end run around the natural selection process. Will this result in a divergence between humans that have lived in these societies for long periods of time and those that have not? And will our increasing reliance on technology result in an even greater reliance in the future? For example, will once-discredited ideas about eugenics make a comeback as the primary available avenue for evolution among technologically advanced humans becomes limited to genetic modification and screening?
I can see how you might interpret my comments as racist, but quite honestly, they are not. If I believed that they had truly developed this on their own, I would be quite happy to give them credit. My recollection, however, of numerous news stories a few months back is that several U.S. aerospace companies were under investigation for having illegally transferred to the Chinese technology that could be used to solve various problems they had been having with the Long March (namely, it blows up a lot).
What you fail to recognize is that the "Long March" rockets would blow up on a very precise and regular basis right up until U.S. aerospace companies helped them out with new technology.
Oh, really? I wonder if you'll be singing the same song when "Chinese scientists" suddenly develop Keyhole-type spy satellites and Star Wars type defenses that remarkably resemble the work done in the U.S. in the 1980's (and that coincidentally after numerous additional cases of espionage and "technology exchange" with borderline treasonous U.S. companies). What happens when the Chinese start selling these capabilities to our pals in North Korea, Iran, Iraq, etc. etc.
The world is a much more dangerous place because of this, and responsibility for this rests in large part with our brilliant leaders and strategists.
Not to diminish what they've done, but the Party statements quoted in the BBC article are just hilarious: this was done using technology developed by Chinese scientists? Well, maybe. But I'm guessing some of that "development" occurred in the U.S., by U.S. scientists, was purloined, and sent back, either as the result of espionage, or as the result of (IMHO) illegal deals struck with U.S. aerospace companies while Big Brother Bill looked the other way (he was busy preventing any crypto exports).
Actually, what he says seems to track pretty well with what I have observed of COS adherents, both in media interviews and in person. Hell, one way that they get people in the door is by appealing for their need to feel intelligent (free IQ tests) or in control of their lives (Dianetics (TM) -- don't want to get sued now, do I?)
Sometimes stereotypes exist because, overall, they are pretty accurate. Generalizing isn't always bad. Sometimes it gets called inductive reasoning.
But they had a powerful reason to settle even before the findings were issued, because of the uncertainty surrounding what the judge was going to do, what effect his decision would have on their stock price, etc.
The only layer of free will that is missing from my statement is the decision that most of us make to the effect that we do not desire to lose all of our stuff and/or become a guest of the state at one of its fine penal institutions. The way to do this is by obeying the law (assuming that one is risk averse and that there is a positive risk of getting caught -- ever watched America's Most Wanted?).
Yes, people do break the law without firearms getting involved. Those people don't get caught. Those who do get caught are subject to punishment, which they accept or they are subjected to violence.
Obedience to the law does not come from doing what you think is right (which also happens to be legal). Obedience to the law arises when someone does not do something that he is inclined to do because it is against the law. He/she subjects his will to the law because to do otherwise is to risk violence to his person or property. Those who obey the law do so under the explicit or implicit threat of violence. The state has, for better or worse, arrogated to itself what amounts to a monopoly on the use of force to coerce conduct. If you believe otherwise, then the matrix has you.
"Are you suggesting bad laws would be better if police were unarmed? Or good laws would be worse if everyone was armed?"
Neither. Although I occasionally do find myself wondering whether we would have or need as many laws as we have if everyone was armed. Particularly if those armed individuals were known to keep themselves informed of the voting records of their elected representatives.
The law is based on violence because, ultimately, obedience to law is enforced by people with guns. I'm not talking about just criminal law here, but civil law as well. Why do you think most people obey the ever-increasing raft of ridiculous and arbitrary laws imposed on them by the "elected" representatives in federal, state, and local government? For example, why should someone respect a software patent that they believe deep down is hopelessly invalid, despite a verdict from a clueless litigation jury that the patent is valid? Why pay damages when they are found to infringe the patent? It's because if they don't pay, people with guns (the sheriff) come to their house, take their stuff, and auction it off at fire-sale prices to pay the judgment. And if there's not enough $ from the auction to satisfy the judgment, when the loser gets more stuff, the sheriff will auction that off too. They don't teach you this in high school civics class, but I think you'll find that this is how things really work.
Louis Brandeis said, "Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means."
Clearly, this judge does not share either the intellectual capital or political leanings of Justice Brandeis. The notion that a flame war constitutes "fighting words" (which are not protected under the First Amendment) is nonsensical, and certainly unsupported by any empirical evidence that flame wars are likely to cause one of the participants to react with physical violence. In any event, the judges order appears to function as a very broad prior restraint. Statutes the prohibited speech that "stirs the public to anger or invites dispute" have been struck down as constitutionally overbroad. How constitutional can a judge's order that Usenet postings must be "on topic" be?
Clearly the judge's order is not a narrowly tailored, content-neutral, "time, place, and manner" restriction and do not serve a significan government interest. Usenet is basically a wide-open public forum, and the judge's attempt to moderate it is not a "legitimate public function."
Judges get away with this kind of unconstitutional crap because they exercise power in the form of an injunction. If this guy violates it and is held in contempt, he may not be able to raise the unconstitutionality of the judge's order as a defense (see Walker v. City of Birmingham, 388 U.S. 307 (1967) (dealing with contempt resulting from injunction under a facially invalid statute). Probably this guy doesn't have the means to appeal the injunction, so he's got no choice but to obey it. Once again, the law works to the advantage of those with power and money.
Normally, I think that I'm a pretty reasonable person, but the notion that the gov't should step in with more regulation of the internet and that bad behavior by marketing slimeballs should be the reason is so completely offensive to me that I find I must agree with the Lumber Cartel approach.
I receive hundreds of emails on a typical day. Probably 95% of these are legitimate, non-spam. While it's easy to "just say delete", I still waste time dealing with the 5% of my email that is spam; not only do these Ponzi scheme salesman disregard my privacy, they have become increasingly clever at camouflaging their subject lines and sender names making it more difficult to delete without opening the mail and reading it to determine if it is legit (also validating the theory that they do, in fact, possess a rudimentary intelligence, perhaps on the order of that of an insect). Over time, this waste adds up (and is merely the wasted time of one person. Add this to the financial burden on infrastructure created by these idiots, and it's clear DMA users are free-riding pond scum).
Asking the gov't for help is going to open a can of worms, and unlikely to result in any useful regulation anyway. Does anyone really think that the voices and votes of those who are pissed off by spam will have any weight against the $$ of lobbying groups paid for by DMA and its members? I don't. The result of any regulation would likely still allow spam to be sent under a set of conditions that would broaden each time the regulations were revisited (which would be like voting in Chicago: early and often).
The DMA and its members understand one thing: profit. As long as they can externalize the bulk of the costs of their activities onto the voiceless entity in the middle (the ISP) and the typical, relatively powerless recipient, there is no incentive for them to stop. But the notion that time is money is a double-edged sword (how is that for a mixed metaphor?). Since neither the ISP's nor the gov't is likely to force DMA and its members to bear the true cost of their activities, perhaps the more technologically savvy among DMA's victim/recipients should do so (without violating any laws, of course). If it is legal for DMA to disregard recipient preferences and send unsolicited email until told to stop, then why should it be illegal or immoral for others to do the same to DMA executives and employees?
Let me guess:
Is a patent attorney necessary? Yes.
Which one should I select? Why, that would be you or your firm, of course.
Actually, it really isn't that important where your patent lawyer is if you are interested merely in having patent applications drafted, filed, and prosecuted. In fact, there is a special bar exam given by the patent office that lawyers and nonlawyers alike must take to do this kind of work: in short, you do not need to be a lawyer to do patent application work.
You may have gotten the wrong impression from some of the previous /. discussion on patents. The one-year grace period functions to give the inventor a year in which to file, not necessarily his competitors. It's important to keep in mind that the U.S. is a first-to-invent country (unlike most other countries, which are first to file).
(1) Any "enabling" publication with a date more than one year prior to the patent application date is an absolute statutory bar to patenting the invention described in the publication.
(2) If a patent application is filed within one year of publication, a different part of the statute controls. (a) If the publication's authors are the same as the inventors of the patent application, the publication is not prior art against the application, because the publication was not (and could not have been) published prior to the invention of the subject matter by the inventors of the application. (b) If the publication's authors are different from the inventors of the patent application (i.e., the publication was by another), the the patent applicants must show that they invented the subject matter prior to the publication date.
Putting this into English, if someone else files a patent application today to an invention that you published less than one year ago, they will have to prove that they invented the subject matter prior to the publication date. This is frequently difficult to do, since it requires some corroboration and supporting evidence (such as properly signed and witnessed lab notebooks, etc.).
Many contingency fee lawyers do enable those of modest means to defend their rights. What often happens, however, is that the lawyer's interest motivate him to take courses of action that may not be in his client's best interest, and to use his knowledge/skills to persuade the client to do what makes the lawyer the most profit. For example, some contingency fee lawyers are famous for attempting to convince their clients to file cases that are marginal at best, then to settle the cases early on (typically taking a 1/3 cut, of course). Corporations knuckle under to this sort of crap because their decision-makers (a pretty risk averse lot) don't want to chance being tagged with a verdict from a clueless judge or jury that is incapable of understanding the technology. In other circumstances, they will drive a meritless case forward, e.g., after losing at trial or on summary judgment, because the only way for the lawyer to make money is by throwing the dice again on appeal.
I think that you are much more likely to get impartial advice from lawyers that you pay by the hour, and who don't have a financial stake in the outcome of the litigation.
On sofware patents, business method patents, etc., I don't disagree with you. Things have gone too far.
I can certainly see your point. Everything that I've read about this guy that was written by anyone besides dumbasses in the media has been uniformly negative.
/. is going to be fooled by anything that this guy says. More importantly, the level of questions likely to be submitted to him (if the use of the term "grill" in the announcement is any guide) are probably going to point out his ignorance. He's likely to provide answers that make clear that he is (1) being evasive, (2) completely clueless about the question asked, or (3) irrational and combative. Rather than providing a forum for him to proselytize, /. is likely to highlight his true nature as a buffoon in a very public way. If I were him, I'd be shitting my pants right about now, since I would know that every bullshit answer that I gave would be instantly mirrored all over the place. And it's tough to sue if you've been quoted correctly.
I disagree, however, with the notion that interviewing him is wrong because it provides him with a forum. I really doubt that anyone who reads
Their practice involves a lot of representation of plaintiffs (i.e., patentees), sometimes on a contingency fee basis. Something that I would think most slashdotters would not find particularly attractive.
Where I work, we started out using only Netscape as the browser. Then IE got installed. Then the IT Grand Poohbah decided that IT would no longer support Netscape, just IE. The (in my view complete bullshit) reason given was that the rest of the system was M$ (NT server, WIN95 clients, M$ Office and Outlook, etc.) Netscape is still available on the desktop, but over time, as the firm intranet becomes more and more optimized for IE, the loss of functionality when using Netscape is extremely noticeable, and I get nasty Javascript error messages (so I turn it off). I continue to use Netscape because I'll be damned if I use IE, but eventually I'll have no choice. My guess is this type of thing is occurring in other shops as well, and will continue to occur in the future, irrespective of what Netscape 5.0 is like.
It certainly is an interesting problem. I'm not sure that the judgment-proof nature of the individuals is as helpful as you indicate. Judgments attach and remain enforceable for a long time, and CS students or individuals capable of writing code at this level stand a good chance of making a good living, and of thus having to pay out money at some point in the future.
I'm trying to figure out how this could be structured to make it work in a way that avoids exploitation by M$ of a prisoner's dilemma situation. It seems as though the inventors (e.g., the impoverished student that you mention) would have to transfer completely his right to sue/ownership interest to the nonprofit corporation, in exchange for ? (an obligation on the part of the nonprofit to sue, based on all applicable pool patents, M$ or anyone else who sues the student for patent infringement?). That's a pretty expensive obligation, and not a very credible threat to M$ if the nonprofit isn't VERY well-funded. Although there may be enough open source advocates among patent litigators that can do this pro bono, conflicts issues and opportunity costs may shrink this pool more than you might think.
You raise some interesting points, and I feel certain that I haven't fully understood what you are proposing, but how do you propose to deal with the following situation with respect to your hypothetical patent pool:
As a patent attorney, you undoubtedly have seen the situation where Large Corporation (for fun, let's use the totally fictitious designation "M$") approaches small corporation or independent developer, plunks down a portfolio of 20 patents, and says "Prove to me that your product doesn't infringe one or more of these." Faced with potential damages and legal costs sufficient to bankrupt him, even the most pissed off small corp. or individual will usually back down and either get out of the business or take a license if there is any substantial possibility of getting tagged for infringement on any of the patents.
Now, suppose the M$ approaches the patent pool, and threatens each of its members the same way, but instead of demanding that they cease and desist, or that they take a license to M$ patents, M$ demands an exclusive license (with right to sue for infringement) to the pool patents.
How do you prevent the pool members from caving?
There is an internal "Quality Review System", but it's a joke. They only sample a small number of applications, and concentrate on finding nitpicky procedural problems to send back to the examiner (see my response above regarding quotas: the quality review people also operate on (you guessed it) a quota system). The people who do the quality review are even less aware of what is going on in the field than the examiners, and just add another layer of bureaucracy. All I can suggest is that you make your displeasure known in the strongest possible terms to the PTO, Congress, the Commerce Department, etc., and suggest that the resources devoted to increasing examination quality be increased(e.g., by getting the examiners on field trips to development houses to see what's conventional in the field), providing better prior art repositories etc. Again, the people who read this site are probably some of the best positioned to know what is conventional in software development, to publish on these topics, and to get the published material into the hands of the PTO for inclusion in its prior art collection (or, e.g. on a website with bombproof date-stamping that examiners can be made aware of and can check for art).
(1) a clearance opinion is a letter from a patent attorney that analyzes the patent claims, specification, and the patent office file, possibly additional prior art, and possibly the accused device, and states that the accused device does not infringe, the patent is invalid, or both, with detailed analysis as to why this is the case. The opinion "clears" the device in the U.S. to the extent that it can be used as an "advice of counsel" defense to charges that the infringement was "willful," so that the patentee gets increased damages.
(2)I'm not sure what you mean by a "dispute stage". The PTO has an internal appeals procedure for applicants who have had their patent applications denied by the patent examiner. If the applicants lose at this stage, they can pursue their appeal in court. The PTO also has a "reexamination" procedure, where anyone can submit prior art to the PTO and argue that the prior art raises a substantial new question as to whether the patent should have been issued. This isn't done too often (I know it sounds good) because the requester can't participate after the initial request is filed. After that, it's just the patent owner and the PTO examiner. Statistically, most patents come through the process with at least some claims, and these claims are stronger (will hold up better in court) as a result. In addition, you can't use prior art in reexamination that the examiner considered the first time through, no matter how badly they botched its interpretation.
As far as providing incentives, you're going to love this. The PTO rewards examiners on a "production system" (I know because I used to be an examiner). The examiner's have a rigid quota that they have to meet, and get points if they reject an application for the first time, if they allow an application to become a patent, if they answer an appeal to the PTO Board of Appeals, or if the case becomes abandoned. Their performance ratings are based on meeting these production goals (which haven't been changed since the 60's), and they are rewarded if they exceed their goals.
The result is that some examiner's play the system so as to reject the applications a few times, forcing applicants to "refile", and then allowing the applications (because an allowance is an easier way to get a "counter" than writing an appeal brief).
There are some rays of light on the horizon, however. I believe that the House has approved a bill that would modify the reexamination procedure to allow considerably more requester participation (at a considerably higher fee, but still way cheaper than litigation). Also, there are periodic roundtable discussions, etc., on these kinds of issues. Finally, check out the PTO website (http://www.pto.gov) for info about making your voices heard.