To put this into context, what is being discussed is a new set of discovery rules which are applicable to Federal lawsuits, but not yet (in most places) state court lawsuits.
In the interest of full disclosure:
IAAL (but spent the first dozen years of my working life as system engineer - and I still tend to view issues like one)
this is not a legal opinion and does not constitute representation
YMMV
The new rules govern so-called e-discovery. Different Federal court jurisdictions had developed different rules regarding discovery of electronically stored information. Now the Federal Rules of Civil Procedure address the situation.
For those lucky enough to be unfamiliar with U.S.-style litigation, it is a principle of U.S. procedure that both parties have to cooperate in "discovery." Essentially, each side of the case gets to ask for documents (including electronically stored data) and for the identity of witnesses who have information relevant to the case. The other side, with some limits, has to provide the documents (including electronically stored data) and identify the witnesses. The requesting side gets to use the documents for any case-related purpose and gets (again with some limits) to question the witnesses, under oath, early in the litigation (usually long before trial). So, if you're absolutely certain you'll never be sued or never have to sue anyone, then these rules will never apply to you (and you're clearly living outside the U.S., in a state of denial, or in your parents' basement).
These new rules are intended to create a common set of rules throughout the U.S. They also, in my opinion, tend to naively treat electronically stored data as the equivalent of documents. Once you're sued (or sue) you are now required to preserve copies of all relevant (and that is a really broad standard) documents (including electronically stored data). You will need to preserve all backups. When the time comes to produce this data, you are going to have to produce it in a manner which the other side can use. In other words, you can't just give them proprietary data formats or print spreadsheets and databases to hard copy (both unfortunately common past practice). You may need to provide the other side with tools to access the data.
The problem comes from the volume of data, and from dynamic data structures, which are constantly in flux, coupled with the fact that you never, ever, want to produce something to the other side without having your lawyer review it. (In fact, it may be malpractice for your lawyer to produce something without reviewing it.) Even in medium to large sized businesses, almost noone in legal or corporate has really thought about these issues. I have an analogy that I like to use with my clients and other attorneys, many of whom don't understand the difference between a kilobyte and a terabyte, to give them a grasp of the scope. I keep a cheap copy of the Complete Works of William Shakespeare on my desk. I pick it up and point out that a simple copy of this in plain text and without any graphics or fancy formatting, takes up just a bit more than 5 Megabytes of storage. A 250 Gigabyte disk (now ubiquitous in many businesses) can hold approximately 50,000 copies of this. That is the potential scope of the problem, and it doesn't even begin to address the issue of metadata and what it reveals about your documents, who touched them and when. For example, most people have no idea that the Word document that they are prepared blithely to give to opposing counsel may include prior draft language invisibly within it.
This is a huge boon for specialty information/litigation management firms.
Assuming that they can make this work, the question that arises is how "transient" are these documents. If there is some possible form of post-processing that can recover the information on a printed document after it has faded from ordinary view, then the risk exists that sensitive information may unknowingly be distributed.
Xerox is proposing the 21st century palimpsest, but, if they are not careful, they may create the same scenario that makes pamplisests of so much interest to historians. (Palimpsests are documents which were written on recycled vellum. The original writing was scraped off the vellum, which was costly, and the vellum reused. Palimpsests are of great interest to historians because it is often possible to recover the original text, which may not exist in other form.)
iTunes has NO required DRM (unless its been decided all digital music must be DRM protected
iTunes is a software application for managing and playing digital music. Ninety plus per cent of the music that I have, for example, in iTunes is in MP3 format without any DRM, because that is the way I ripped it.
iTMS (iTunes Music Store) does use DRM, but there is nothing that requires you to get your music from iTMS. It is perfectly simple to buy the music on CD, rip it, and then put it on the iPod. There is no direct tie between iTMS and the iPod.
The issue is that the iPod only supports one form of DRM, the form used by iTMS. So, if you argue that Apple is tying the iPod to the use of iTMS and the Fairplay DRM, then you are implicitly accepting the argument that the only legitimate digital music is that controlled under a DRM scheme.
I was told by someone who was heavily involved in the government analysis (yes, there was government analysis) of the last major change to Daylight Saving Time, that there was very considerable lobbying by the candy industry to move the end from the last Sunday in October to the first Sunday in November. Their reason was an extra hour of trick-or-treating, which would have greatly increased candy sales in October.
Actually, it is illegal for someone who has a monopoly in one product to force you to purchase a second product in conjunction with your purchase of the first (monopoly) product.
The logic here is that the monopolist is not allowed to take advantage of their monopoly power in one product to improve their sales in another, presumably to the detriment of the competitors in that second market.
In the case of browsers, MS was found guilty of forcing consumers to buy a browser (a product for which they did not have a monopoly), when the person bought Windows (a product for which Microsoft wielded monopoly power).
In the present case, Microsoft is potentially attempting to force people to buy their monopoly product in conjunction with their purchase of Microsoft's non-monopoly product (VFP). This is not an illegal act. Of course, if you can get a judge to accept some definition of the relevant market, such that Visual FoxPro has a monopoly on that market, then you'ld have an antitrust violation.
The fundamental root of the problem is that time is one of those concepts that we all THINK we understand, but frequently we are talking at crossed purposes. Here the problem is a tension between those who use time to measure the duration between two events and those who use it in its more historically traditional role as a metric describing the orientation of the Earth.
Initially the precise measurement of time was the province of astronomers and ship navigators. Time was fundamentally the measurement of the orientation of the Earth. Time was a function of location. Noon was when the sun was at zenith. If you could know the difference in time measurements at two locations, you could determine the difference in longitudes of the two locations. In order to determine the differences in time systems, mankind developed precise mechanical time measuring systems. The new time measuring systems allowed man to measure the durations between events very precisely.
Eventually man developed atomic clocks that could use the decay of atoms to provide an incredibly stable time reference. However, some time ago, we reached a point where the mechanical time measuring systems became more stable than the Earth's rotation. So the atomic clocks which were counting down seconds very accurately were now getting out of synch with the Earth's rotation which was slowing down (and not smoothly slowing down, either).
Since no one who was concerned with the durations between events wanted seconds that varied in length, which is what would happen if you fixed the varying length of the day at 86400 seconds, the concept of using seconds of fixed duration (based on an atomic standard) was developed. The ever accumulating count of these seconds is TAI (Time Atomique Internationale aka International Atomic Time). The time which represents the orientation of the Earth is Universal Time (UT). (This is a simplification, there are a number of subtle variations on UT that I'm not going to go into, but which aren't important for the purposes of this discussion.)
If left alone, the difference between UT and TAI would grow. So, many years ago the concept of UTC (Universal Time Coordinated) was invented. This time standard uses the standard TAI second, but at irregular intervals, an additional second may be added (on either June 30th or Dec. 31st) to always keep UTC and UT to within half a second of each other.
The bottom line is that for people who have to deal with durations, especially long durations, having those irregular additional seconds is a bookkeeping pain and for those who need to be very concerned about the orientation of the Earth, a half second isn't nearly accurate enough. The latter group are undoubtedly using much higher resolution correction data that is produced by the IERS (International Earth Rotation Service). For most civilians, the fact that noon is shifting off by a second every couple of years just doesn't matter. (Especially since the railroads introduced the concept of time zones a little over a hundred years ago, which means that the sun is rarely at zenith when the clock says its noon.)
A lot of people in the field have questioned for some time whether in the era of modern computers where using the higher resolution IERS corrections is trivial, the leap second has any use. Now it may finally be going away.
Now if you want to get really esoteric, here is something to ponder: For astronomy and celestial mechanics, time is defined as the independent variable in the equations of motion of the universe. For physicists and those who use atomic time standards, time is defined as the independent variable in the decay of atomic particles. Noone, to my knowledge, has ever been able to detect a difference in these two independent variables, but it is not a given that they are the same.
For those who'ld like to know more, the University of Texas teaches a graduate level course in the Aerospace Eng. Dept. on the "Determination of Time".
You or someone, with the blessing of the KDHX/Double Helix Board, should contact a law firm that does trademark work. When you call ask to speak to whoever coordinates the firm Pro Bono program. Most law firms of any size have a formal or informal pro bono program. A local St. Louis firm is more likely to be willing to help than a national firm.
Explain who you are, that you represent a penniless non-profit public interest organization and explain what has happened. If that firm can't help you, ask them to refer you to another firm that might be able to help.
Most states have guidelines for the amount of pro bono (from the Latin, pro bono publico, for the good of the public) work that a lawyer should do each year. Trademark attorneys are no exception to this. This work is done at no cost to help the indigent, charities, and public interest organizations.
If by some bad luck you should happen to contact a firm that isn't interested in helping you, keep looking, you'll find one before long.
Slashdot Mirror
To put this into context, what is being discussed is a new set of discovery rules which are applicable to Federal lawsuits, but not yet (in most places) state court lawsuits.
In the interest of full disclosure:
IAAL (but spent the first dozen years of my working life as system engineer - and I still tend to view issues like one)
this is not a legal opinion and does not constitute representation
YMMV
The new rules govern so-called e-discovery. Different Federal court jurisdictions had developed different rules regarding discovery of electronically stored information. Now the Federal Rules of Civil Procedure address the situation.
For those lucky enough to be unfamiliar with U.S.-style litigation, it is a principle of U.S. procedure that both parties have to cooperate in "discovery." Essentially, each side of the case gets to ask for documents (including electronically stored data) and for the identity of witnesses who have information relevant to the case. The other side, with some limits, has to provide the documents (including electronically stored data) and identify the witnesses. The requesting side gets to use the documents for any case-related purpose and gets (again with some limits) to question the witnesses, under oath, early in the litigation (usually long before trial). So, if you're absolutely certain you'll never be sued or never have to sue anyone, then these rules will never apply to you (and you're clearly living outside the U.S., in a state of denial, or in your parents' basement).
These new rules are intended to create a common set of rules throughout the U.S. They also, in my opinion, tend to naively treat electronically stored data as the equivalent of documents. Once you're sued (or sue) you are now required to preserve copies of all relevant (and that is a really broad standard) documents (including electronically stored data). You will need to preserve all backups. When the time comes to produce this data, you are going to have to produce it in a manner which the other side can use. In other words, you can't just give them proprietary data formats or print spreadsheets and databases to hard copy (both unfortunately common past practice). You may need to provide the other side with tools to access the data.
The problem comes from the volume of data, and from dynamic data structures, which are constantly in flux, coupled with the fact that you never, ever, want to produce something to the other side without having your lawyer review it. (In fact, it may be malpractice for your lawyer to produce something without reviewing it.) Even in medium to large sized businesses, almost noone in legal or corporate has really thought about these issues. I have an analogy that I like to use with my clients and other attorneys, many of whom don't understand the difference between a kilobyte and a terabyte, to give them a grasp of the scope. I keep a cheap copy of the Complete Works of William Shakespeare on my desk. I pick it up and point out that a simple copy of this in plain text and without any graphics or fancy formatting, takes up just a bit more than 5 Megabytes of storage. A 250 Gigabyte disk (now ubiquitous in many businesses) can hold approximately 50,000 copies of this. That is the potential scope of the problem, and it doesn't even begin to address the issue of metadata and what it reveals about your documents, who touched them and when. For example, most people have no idea that the Word document that they are prepared blithely to give to opposing counsel may include prior draft language invisibly within it.
This is a huge boon for specialty information/litigation management firms.
Assuming that they can make this work, the question that arises is how "transient" are these documents. If there is some possible form of post-processing that can recover the information on a printed document after it has faded from ordinary view, then the risk exists that sensitive information may unknowingly be distributed.
Xerox is proposing the 21st century palimpsest, but, if they are not careful, they may create the same scenario that makes pamplisests of so much interest to historians. (Palimpsests are documents which were written on recycled vellum. The original writing was scraped off the vellum, which was costly, and the vellum reused. Palimpsests are of great interest to historians because it is often possible to recover the original text, which may not exist in other form.)
iTunes is a software application for managing and playing digital music. Ninety plus per cent of the music that I have, for example, in iTunes is in MP3 format without any DRM, because that is the way I ripped it.
iTMS (iTunes Music Store) does use DRM, but there is nothing that requires you to get your music from iTMS. It is perfectly simple to buy the music on CD, rip it, and then put it on the iPod. There is no direct tie between iTMS and the iPod.
The issue is that the iPod only supports one form of DRM, the form used by iTMS. So, if you argue that Apple is tying the iPod to the use of iTMS and the Fairplay DRM, then you are implicitly accepting the argument that the only legitimate digital music is that controlled under a DRM scheme.
I was told by someone who was heavily involved in the government analysis (yes, there was government analysis) of the last major change to Daylight Saving Time, that there was very considerable lobbying by the candy industry to move the end from the last Sunday in October to the first Sunday in November. Their reason was an extra hour of trick-or-treating, which would have greatly increased candy sales in October.
The logic here is that the monopolist is not allowed to take advantage of their monopoly power in one product to improve their sales in another, presumably to the detriment of the competitors in that second market.
In the case of browsers, MS was found guilty of forcing consumers to buy a browser (a product for which they did not have a monopoly), when the person bought Windows (a product for which Microsoft wielded monopoly power).
In the present case, Microsoft is potentially attempting to force people to buy their monopoly product in conjunction with their purchase of Microsoft's non-monopoly product (VFP). This is not an illegal act. Of course, if you can get a judge to accept some definition of the relevant market, such that Visual FoxPro has a monopoly on that market, then you'ld have an antitrust violation.
Initially the precise measurement of time was the province of astronomers and ship navigators. Time was fundamentally the measurement of the orientation of the Earth. Time was a function of location. Noon was when the sun was at zenith. If you could know the difference in time measurements at two locations, you could determine the difference in longitudes of the two locations. In order to determine the differences in time systems, mankind developed precise mechanical time measuring systems. The new time measuring systems allowed man to measure the durations between events very precisely.
Eventually man developed atomic clocks that could use the decay of atoms to provide an incredibly stable time reference. However, some time ago, we reached a point where the mechanical time measuring systems became more stable than the Earth's rotation. So the atomic clocks which were counting down seconds very accurately were now getting out of synch with the Earth's rotation which was slowing down (and not smoothly slowing down, either).
Since no one who was concerned with the durations between events wanted seconds that varied in length, which is what would happen if you fixed the varying length of the day at 86400 seconds, the concept of using seconds of fixed duration (based on an atomic standard) was developed. The ever accumulating count of these seconds is TAI (Time Atomique Internationale aka International Atomic Time). The time which represents the orientation of the Earth is Universal Time (UT). (This is a simplification, there are a number of subtle variations on UT that I'm not going to go into, but which aren't important for the purposes of this discussion.)
If left alone, the difference between UT and TAI would grow. So, many years ago the concept of UTC (Universal Time Coordinated) was invented. This time standard uses the standard TAI second, but at irregular intervals, an additional second may be added (on either June 30th or Dec. 31st) to always keep UTC and UT to within half a second of each other.
The bottom line is that for people who have to deal with durations, especially long durations, having those irregular additional seconds is a bookkeeping pain and for those who need to be very concerned about the orientation of the Earth, a half second isn't nearly accurate enough. The latter group are undoubtedly using much higher resolution correction data that is produced by the IERS (International Earth Rotation Service). For most civilians, the fact that noon is shifting off by a second every couple of years just doesn't matter. (Especially since the railroads introduced the concept of time zones a little over a hundred years ago, which means that the sun is rarely at zenith when the clock says its noon.)
A lot of people in the field have questioned for some time whether in the era of modern computers where using the higher resolution IERS corrections is trivial, the leap second has any use. Now it may finally be going away.
Now if you want to get really esoteric, here is something to ponder: For astronomy and celestial mechanics, time is defined as the independent variable in the equations of motion of the universe. For physicists and those who use atomic time standards, time is defined as the independent variable in the decay of atomic particles. Noone, to my knowledge, has ever been able to detect a difference in these two independent variables, but it is not a given that they are the same.
For those who'ld like to know more, the University of Texas teaches a graduate level course in the Aerospace Eng. Dept. on the "Determination of Time".
You or someone, with the blessing of the KDHX/Double Helix Board, should contact a law firm that does trademark work. When you call ask to speak to whoever coordinates the firm Pro Bono program. Most law firms of any size have a formal or informal pro bono program. A local St. Louis firm is more likely to be willing to help than a national firm.
Explain who you are, that you represent a penniless non-profit public interest organization and explain what has happened. If that firm can't help you, ask them to refer you to another firm that might be able to help.
Most states have guidelines for the amount of pro bono (from the Latin, pro bono publico, for the good of the public) work that a lawyer should do each year. Trademark attorneys are no exception to this. This work is done at no cost to help the indigent, charities, and public interest organizations.
If by some bad luck you should happen to contact a firm that isn't interested in helping you, keep looking, you'll find one before long.