Thats why there is a document retention policy safe harbor in the rules themselves. The "safe harbor" will not apply to the routine operation of a document destruction system (e.g., emails automatically deleted after thirty days) if the company reasonably anticipates litigation. This is clear both from the Committee Notes to the Rule and the case law. In other words, you can't argue that you fall under the safe harbor just because the data was lost due to an automatic operation. You have to show that you made a good faith effort to preserve the evidence, which may include halting the operation of the automatic archiving/deletion system.
The synopsis overstates the significance of the Rules changes. The duty to preserve evidence in anticipation of litigation has a long history in our legal system, and courts have had the power to impose sanctions for spoliation (failure to retain relevant documents) long before these Rules were ever considered. In the past several years, there have been hundreds of cases of sanctions relating to spoliation of electronically stored information such as emails and backup tapes. Sanctions include awarding money to the party adversely affected by the failure to preserve; granting the party an "adverse inference" regarding what was contained in the lost documents; and in extreme cases granting a default judgment against the party who failed to preserve. The new Rules formalize existing trends in the case law and clarify procedures for dealing with electronic discovery but do not create requirements that did not previously exist (nor could they).
I'm an attorney. There are criminal statutes relating to all of these areas of intellectual property. It shouldn't surprise anyone that copyright infringement is a criminal act (read the notices at the beginning of DVDs). Counterfeiting--related to trademark infringement--also can carry criminal penalties. I don't believe there is any statute imposing criminal liability for ptaent infringement, however.
You can make nautilus always default to navigational by setting "/apps/nautilus/preferences/always_use_browser" key in gconf (using gconftool-2 or gconf-editor). Please feel free to complain about not knowing how to find this, but now you know, so there's no going back.
I've posted the responses of two Princeton alums to this article (including my own). These responses were sent to Mr. Strauss as well as his supervisors.
AOL can do something with this improved, modified code that noone else can do -- relicense and sell same without being bound by the requirements of the MPL, LGPL, GPL, or NPL that bind others (such as distributing the source). Doesn't this have economic value? And if it does, doesn't this decrease the amount of AOL's "charitable" contribution? Just as one must deduct the $200 value of the Broadway tickets from the $1000 paid at auction, mustn't one deduct the economic value (doesn't the taxpayer have the burden of proof on this?) AOL derives from improvements to its Branded Code from the amount of its contribution?
While it's possible that the Branded Code provision could present a problem for AOL being able to deduct the donation, it's not quite analogous to the Broadway show example (or the charity dinner case, which is quite common). I suspect the seed money is not earmarked for any specific purpose, so this is not exactly a fee-for-service-plus-donation transaction. Typically in charity cases, you're looking at someone overpaying for a service and then deducting the difference between the fair market value of what they got and what they actually paid.
In this case, "what they got" isn't exactly clear. You could argue that this is more like a person of color making a tax-deductible donation to the NAACP. Even if they might benefit from the work the NAACP, it doesn't present any problems for the deductibility of their donation. Of course, AOL's interest is far less speculative than in the NAACP case. But still, I would think that unless they have control over where their donation goes, it stands a good chance of being deductible.
And I'm sure AOL has far more knowledgable and clever tax attorneys than myself.
Since the Mozilla Foundation is applying for 501(c)(3) status, contributions are not yet tax deductible.
Under the Internal Revenue Code, donations that come in after the organization has applied for 501(c)3 tax exempt status, but prior to that status being granted, are tax deductible assuming the 501(c)3 status is finally granted. That is, the tax exempt status is applied retroactively to the time of application.
Not that the Mozilla Foundation is guaranteed to receive IRS approval, but it is quite likely. The xiph.org foundation received 501(c)3 tax exempt status and the Mozilla Foundation seems quite similar to me (vis-a-vis the factors that matter to IRS approval.) Often times, pointing out another similar organization that has recently received 501(c)3 approval is persuasive to the Service.
Note also that AOL's transactions with Mozilla are unlikely to be categorized as an "excess benefit transaction," as one person commented. Excess benefit transactions are problems with self-dealing--e.g., if a 501(c)3 pays someone who is a disqualified person (impermissibly connected to organizational decisionmakers) too much for the services rendered, then the excess benefit penalties kicks in.
Err, what exactly does this mean, can anyone tell me?
This usually means something like HTML email with a remote image link, often just a one pixel invisible GIF, that uniquely identifies the recipient. When the recipient opens the message in a mailreader that supports HTML mail and displays images, the sender will see the hit in his weblog, and thus knows who read the message and when they read it. This could even happen even if you use pine or mutt to read email if you open attached HTML in a web browser (I personally have it converted to text by html2text).
Assuming someone breaks this copy protection scheme (already done), won't this increase incentives to get your music from file-sharing services rather than purchasing CDs? The ability to rip my CDs to my hard drive is invaluable; I don't mind occasionally shelling out $15 for a good CD if I can store it on my laptop for travel. But if copy protection schemes prevent this, my only option will be to find the same music in unencumbered form online (or crack it myself).
I signed up for Verizon DSL yesterday, and the customer service rep refused to take 'Linux' as an answer for my operating system. I had to lie and say Windows 2000 to proceed with the process (I kind of wish I had said Macintosh instead!). She said she had never heard of it. I told her it was probably running most of their systems; now it turns out I was right!
One poster makes the point that MySQL AB is actually the defendant, thus they had no choice of venue. However, they could have sued NuSphere independently in Swedish courts, but it would be next to impossible to get enforcement in Boston of a decision by a Swedish court, if they could even get jurisdiction over NuSphere for a trial.
[The Judge] seemed to think "linking" code was analogous to hyperlinks on the web.
In the case of dynamic linking, isn't it?
Yes, except the Judge clearly wasn't thinking of things like image tags; she was analogizing the linking of code to the links you click on when you are viewing a web page that take you to other sites.
By the end of the hearing, I think she understood that linking was more complex than underlined words. She also knew there wasn't time to deal with the issue in this hearing.
I just returned from the hearing for a preliminary injunction on the NuSphere/MySQL case. Here are some initial reactions, many of which are not original to me. This is fairly long, and was also posted to the fsl-discuss list.
First, the headline: there was nothing to suggest that the GPL itself or free software is in danger, although the Judge is unlikely to rule in MySQL's favor on this preliminary injunction.
The details: Judge Saris was surprised by the number of people attending the hearing (around 20-30). I suspect she didn't know this was being seen as the first test case of the GPL in court. She threw both sides off balance by announcing, before any arguments, that she had more or less made up her mind.
She said she was inclined to grant the defendant's (MySQL AB) motion for a preliminary injunction with respect to the trademark issue (enjoining Nusphere from using MySQL's registered trademark against MySQL's wishes after their 'temporary agreement' broke down) but was not inclined to grant the preliminary injunction against NuSphere from using the GPL'ed code at all. There followed about two hours of arguments, and when the Judge adjourned the hearing it seems she held the same views.
The Judge did not want to get into issues of fact beyond their most minimally necessary. Although her technical knowledge was limited, she realized that it could take several hours and probably several days to fully explore the technical side of things, and she wanted to make her decision today after this hearing, particularly since people had traveled great distances to attend the hearing (including the two MySQL AB developers from Sweden).
Like most Judges, Judge Saris was hoping this could be settled between the parties, particularly since the Court is not particularly well equipped to deal with the more technical issues of 'statically and dynamically linked code', etc.. She urged the parties to use the remainder of their time in the courtroom to talk, and was trying to set up some mediation with a professional mediator or magistrate judge. One analysis is that she will grant one motion but not the other so as not to put either party in too powerful a position in an out-of-court settlement.
Although the Court clearly didn't understand the specifics of open source (she seemed to think 'linking' code was analogous to hyperlinks on the web, and that a single package was like a single icon you would click on on the desktop), she did pretty clearly understand what the GPL is about, and said nothing to suggest she didn't think it would be enforceable. The issue at hand was whether the facts required immediate injunctive relief. For preliminary injunctive relief, the Judge looks at:
(1) likelihood of prevailing on the merits (2) immediate and irreperable injury, loss or damage (3) balance of harm to moving party vs. harm to non-moving party lies in moving party favor
It seemed like she might be convinced on (1), but she had trouble seeing how (2) was the case, so she was not particularly interested in hearing a lot of argument about whether or not the case would eventually prevail on the merits. She also was concerned that the injunction from using MySQL code at all would essentially destroy NuSphere's entire business (despite the fact that they are a subsidiary of a $300M company), and thus found it hard to believe that the balance of harms would lie in MySQL AB's favor.
It is thus likely that she will not actually address the terms of the GPL itself in her decision, which is a good thing, since there was so little expert testimony about it (Eben Moglen was present but was not given a chance to testify). Instead, I expect she will focus on the lack of proof of irreperable harm in a short opinion denying the motion.
The trademark issue was more clear cut. Under Copyright Law, non-permitted use of a trademark is presumptively irreperable harm. MySQL AB and NuSphere had previouly had a provisionaly contract granting NuSphere the right to use MySQL's trademark; however, the Court found it convincing that that contract terminated (1) because it had a horizon date, after which further arrangements would need to be made, and (2) because NuSphere ceased making payments to MySQL AB. NuSphere wanted to argue that MySQL AB should be estopped from the claim because they took 18 months to bring suit about it (therefore, in NuSphere's view, 'acquiescing' to the continuation of the Contract) but MySQL AB was in good faith negotiations for most of that time; once things did break down and MySQL AB learned that NuSphere had distributed MySQL along with proprietary software, then they did file suit fairly promptly.
I'd be happy to answer any questions about the proceedings for those who couldn't make it.
A couple of thoughts:
(1) NuSphere probably figured they could probably violate the GPL and MySQL would not have the resources to sue them. This is probably true of most free software developers who have not assigned their copyrights to the FSF. After watching this hearing, it seems to me imperative that developers assign their copyrights to some party that will have the resources to enforce it (whether the FSF or some other organization). These violations can only become more common as GPL software becomes more powerful and widespread, and it is quite expensive to litigate against them.
(2) The GPL termination clause (section 4) is going to cause problems. Does the person who violates the GPL permanently lose their license until the licensor regrants it, even if they bring their use back into compliance with the GPL? Can they not redownload the GPL'ed software and become a 'fresh' licensee? What if the original licensor can't be located? Does this mean there is a 'special class' of people in the world who can't distribute GPL software for the rest of their lives because of some past action that has been cured? How are courts likely to view this interpretation? Is it good policy? These issues were quite present because it appears that NuSphere has substantially cured their prior violation (although there was a dispute of fact over whether they actually had fully cured it).
That's it for now. The parties were given until August for discovery, although the judge urged them again to settle before that. It appears that a preliminary injunction against NuSphere to stop them from using the trademark (they will probably change the software name to something like 'NuSphere Enhanced for MySQL') will likely give them something on the order of 3 months to implement. --- Adam Kessel (adam@bostoncoop.net)
Slashdot Mirror
The synopsis overstates the significance of the Rules changes. The duty to preserve evidence in anticipation of litigation has a long history in our legal system, and courts have had the power to impose sanctions for spoliation (failure to retain relevant documents) long before these Rules were ever considered. In the past several years, there have been hundreds of cases of sanctions relating to spoliation of electronically stored information such as emails and backup tapes. Sanctions include awarding money to the party adversely affected by the failure to preserve; granting the party an "adverse inference" regarding what was contained in the lost documents; and in extreme cases granting a default judgment against the party who failed to preserve. The new Rules formalize existing trends in the case law and clarify procedures for dealing with electronic discovery but do not create requirements that did not previously exist (nor could they).
I've posted a more detailed analysis of the lawsuit on my blog for those who are interested.
I'm an attorney. There are criminal statutes relating to all of these areas of intellectual property. It shouldn't surprise anyone that copyright infringement is a criminal act (read the notices at the beginning of DVDs). Counterfeiting--related to trademark infringement--also can carry criminal penalties. I don't believe there is any statute imposing criminal liability for ptaent infringement, however.
You can make nautilus always default to navigational by setting "/apps/nautilus/preferences/always_use_browser" key in gconf (using gconftool-2 or gconf-editor). Please feel free to complain about not knowing how to find this, but now you know, so there's no going back.
I've posted the responses of two Princeton alums to this article (including my own). These responses were sent to Mr. Strauss as well as his supervisors.
In case anyone is still reading this thread.
While it's possible that the Branded Code provision could present a problem for AOL being able to deduct the donation, it's not quite analogous to the Broadway show example (or the charity dinner case, which is quite common). I suspect the seed money is not earmarked for any specific purpose, so this is not exactly a fee-for-service-plus-donation transaction. Typically in charity cases, you're looking at someone overpaying for a service and then deducting the difference between the fair market value of what they got and what they actually paid.
In this case, "what they got" isn't exactly clear. You could argue that this is more like a person of color making a tax-deductible donation to the NAACP. Even if they might benefit from the work the NAACP, it doesn't present any problems for the deductibility of their donation. Of course, AOL's interest is far less speculative than in the NAACP case. But still, I would think that unless they have control over where their donation goes, it stands a good chance of being deductible.
And I'm sure AOL has far more knowledgable and clever tax attorneys than myself.
Under the Internal Revenue Code, donations that come in after the organization has applied for 501(c)3 tax exempt status, but prior to that status being granted, are tax deductible assuming the 501(c)3 status is finally granted. That is, the tax exempt status is applied retroactively to the time of application.
Not that the Mozilla Foundation is guaranteed to receive IRS approval, but it is quite likely. The xiph.org foundation received 501(c)3 tax exempt status and the Mozilla Foundation seems quite similar to me (vis-a-vis the factors that matter to IRS approval.) Often times, pointing out another similar organization that has recently received 501(c)3 approval is persuasive to the Service.
Note also that AOL's transactions with Mozilla are unlikely to be categorized as an "excess benefit transaction," as one person commented. Excess benefit transactions are problems with self-dealing--e.g., if a 501(c)3 pays someone who is a disqualified person (impermissibly connected to organizational decisionmakers) too much for the services rendered, then the excess benefit penalties kicks in.
Err, what exactly does this mean, can anyone tell me?
This usually means something like HTML email with a remote image link, often just a one pixel invisible GIF, that uniquely identifies the recipient. When the recipient opens the message in a mailreader that supports HTML mail and displays images, the sender will see the hit in his weblog, and thus knows who read the message and when they read it. This could even happen even if you use pine or mutt to read email if you open attached HTML in a web browser (I personally have it converted to text by html2text).
The Electronic Privacy Information Center has published a report on Why P3P is not a PET (Privacy Enhancing Technology) (PDF file). It's worth a read as it challenges a lot of the justifications and goals of P3P.
Assuming someone breaks this copy protection scheme (already done), won't this increase incentives to get your music from file-sharing services rather than purchasing CDs? The ability to rip my CDs to my hard drive is invaluable; I don't mind occasionally shelling out $15 for a good CD if I can store it on my laptop for travel. But if copy protection schemes prevent this, my only option will be to find the same music in unencumbered form online (or crack it myself).
I signed up for Verizon DSL yesterday, and the customer service rep refused to take 'Linux' as an answer for my operating system. I had to lie and say Windows 2000 to proceed with the process (I kind of wish I had said Macintosh instead!). She said she had never heard of it. I told her it was probably running most of their systems; now it turns out I was right!
One poster makes the point that MySQL AB is actually the defendant, thus they had no choice of venue. However, they could have sued NuSphere independently in Swedish courts, but it would be next to impossible to get enforcement in Boston of a decision by a Swedish court, if they could even get jurisdiction over NuSphere for a trial.
[The Judge] seemed to think "linking" code was analogous to hyperlinks on the web.
In the case of dynamic linking, isn't it?
Yes, except the Judge clearly wasn't thinking of things like image tags; she was analogizing the linking of code to the links you click on when you are viewing a web page that take you to other sites.
By the end of the hearing, I think she understood that linking was more complex than underlined words. She also knew there wasn't time to deal with the issue in this hearing.
I just returned from the hearing for a preliminary injunction on the
NuSphere/MySQL case. Here are some initial reactions, many of which are not
original to me. This is fairly long, and was also posted to the fsl-discuss list.
First, the headline: there was nothing to suggest that the GPL itself or
free software is in danger, although the Judge is unlikely to rule in
MySQL's favor on this preliminary injunction.
The details: Judge Saris was surprised by the number of people attending the
hearing (around 20-30). I suspect she didn't know this was being seen as
the first test case of the GPL in court. She threw both sides off balance
by announcing, before any arguments, that she had more or less made up her
mind.
She said she was inclined to grant the defendant's (MySQL AB) motion for a
preliminary injunction with respect to the trademark issue (enjoining
Nusphere from using MySQL's registered trademark against MySQL's wishes
after their 'temporary agreement' broke down) but was not inclined to grant
the preliminary injunction against NuSphere from using the GPL'ed code at
all. There followed about two hours of arguments, and when the Judge
adjourned the hearing it seems she held the same views.
The Judge did not want to get into issues of fact beyond their most
minimally necessary. Although her technical knowledge was limited, she
realized that it could take several hours and probably several days to fully
explore the technical side of things, and she wanted to make her decision
today after this hearing, particularly since people had traveled great
distances to attend the hearing (including the two MySQL AB developers from
Sweden).
Like most Judges, Judge Saris was hoping this could be settled between the
parties, particularly since the Court is not particularly well equipped to
deal with the more technical issues of 'statically and dynamically
linked code', etc.. She urged the parties to use the remainder of their
time in the courtroom to talk, and was trying to set up some mediation with
a professional mediator or magistrate judge. One analysis is that she
will grant one motion but not the other so as not to put either party in too
powerful a position in an out-of-court settlement.
Although the Court clearly didn't understand the specifics of open source
(she seemed to think 'linking' code was analogous to hyperlinks on the web,
and that a single package was like a single icon you would click on on the
desktop), she did pretty clearly understand what the GPL is about, and
said nothing to suggest she didn't think it would be enforceable. The issue
at hand was whether the facts required immediate injunctive relief. For
preliminary injunctive relief, the Judge looks at:
(1) likelihood of prevailing on the merits
(2) immediate and irreperable injury, loss or damage
(3) balance of harm to moving party vs. harm to non-moving party lies in
moving party favor
It seemed like she might be convinced on (1), but she had trouble seeing how
(2) was the case, so she was not particularly interested in hearing a lot of
argument about whether or not the case would eventually prevail on the
merits. She also was concerned that the injunction from using MySQL code at
all would essentially destroy NuSphere's entire business (despite the fact
that they are a subsidiary of a $300M company), and thus found it hard to
believe that the balance of harms would lie in MySQL AB's favor.
It is thus likely that she will not actually address the terms of the GPL
itself in her decision, which is a good thing, since there was so little
expert testimony about it (Eben Moglen was present but was not given a
chance to testify). Instead, I expect she will focus on the lack of proof
of irreperable harm in a short opinion denying the motion.
The trademark issue was more clear cut. Under Copyright Law, non-permitted
use of a trademark is presumptively irreperable harm. MySQL AB and NuSphere
had previouly had a provisionaly contract granting NuSphere the right to use
MySQL's trademark; however, the Court found it convincing that that contract
terminated (1) because it had a horizon date, after which further
arrangements would need to be made, and (2) because NuSphere ceased making
payments to MySQL AB. NuSphere wanted to argue that MySQL AB should be
estopped from the claim because they took 18 months to bring suit about it
(therefore, in NuSphere's view, 'acquiescing' to the continuation of the
Contract) but MySQL AB was in good faith negotiations for most of that time;
once things did break down and MySQL AB learned that NuSphere had
distributed MySQL along with proprietary software, then they did file suit
fairly promptly.
I'd be happy to answer any questions about the proceedings for those who
couldn't make it.
A couple of thoughts:
(1) NuSphere probably figured they could probably violate the GPL and MySQL
would not have the resources to sue them. This is probably true of most
free software developers who have not assigned their copyrights to the FSF.
After watching this hearing, it seems to me imperative that developers
assign their copyrights to some party that will have the resources to
enforce it (whether the FSF or some other organization). These violations
can only become more common as GPL software becomes more powerful and
widespread, and it is quite expensive to litigate against them.
(2) The GPL termination clause (section 4) is going to cause problems. Does
the person who violates the GPL permanently lose their license until the
licensor regrants it, even if they bring their use back into compliance with
the GPL? Can they not redownload the GPL'ed software and become a 'fresh'
licensee? What if the original licensor can't be located? Does this mean
there is a 'special class' of people in the world who can't distribute GPL
software for the rest of their lives because of some past action that has
been cured? How are courts likely to view this interpretation? Is it good
policy? These issues were quite present because it appears that NuSphere
has substantially cured their prior violation (although there was a dispute
of fact over whether they actually had fully cured it).
That's it for now. The parties were given until August for discovery,
although the judge urged them again to settle before that. It appears that
a preliminary injunction against NuSphere to stop them from using the
trademark (they will probably change the software name to something like
'NuSphere Enhanced for MySQL') will likely give them something on the order
of 3 months to implement.
---
Adam Kessel (adam@bostoncoop.net)