With real property, I can police it. If someone takes it, I can take it back. I can *see* people taking it if I watch. Transfers of IP can't be policed. They can happen entirely on someone else's property (e.g. between their computers) without my knowledge. Provided there's someone watching, it will never be impossible to notice that your property is missing. With IP, you have no way of knowing who has a copy of it, short of inspecting their real property (e.g. their hard drives).
> When men control the fruits of their own labors, society benefits from an abundance of such labors.
And when they cannot, for the reasons stated above, it's better to find a better way to encourage labor without resorting to unworkable legal fiction.
> So, why shouldn't you expect it to work for intellectual property, as well?
Because it's not possible to control IP that way. And the closest we can get involves having someone able to strip you of your privacy entirely, making a mockery of real property rights, like my computer which I use in my own home. Why would we want to support IP, out of an alleged respect for real property no less, by disrespecting that real property so thoroughly.
> Where is your counter-example? Or are you too busy declaring yourself to be "rubber, not glue" to think of one?
I believe I offered another, proper, counter-example after attacking the fallacious reasoning. But for whatever it's worth, I think that a person ought to make sure that their ideas are logically well-founded as well as correct.
You do the truth a great disservice than when you defend it wrongly.
Nope. Doing anything illegal (like infringing) strips you of your personal protection because you're outside your official capacity the minute you infringe.
The state is fully protected (and our tax money, as another way to look at it), but the employee themselves is not. IANAL, but look at the strange way that lawsuit was dismissed: the one who allegedly infringed (outside of their official capacity) is the only one left to sue.
I know it's hard to read, when it dismissed the suit against the alleged infringer in their official capacity, but the article itself tells you that they're not off the hook in terms of personal liability.
I don't think you understand how making claims works (usually, one is obligated to support them, not challenge whoever challenges your assertions).
And when you say "Since you chose to challenge the claim, it is up to you to find a counterexample." I'm sorely tempted to post an ironic reply in the vein of "Anyone who says that loses the argument (it's up to you to provide a counterexample if you disagree)."
But don't get me wrong, I think that copyright is the wrong way to do the right thing, if that makes any sense. I just don't like that method of reasoning.
However, instead I would like to point to the Renaissance. It pretty well predates any real notion of copyright, and last I checked, those countries that participated did not all fall into ruin. But I suppose you'll merely tell me that most later adopted copyright?
Anyhow, I have a stone for you. It keeps tigers away...
> The 11th Amendment just says that you can't sue a State in Federal court.
True. It's the part where copyright claims have to be filed in federal court (see 28 U.S.C. sec. 1338(a) -- citation taken from Compulawyer's post) that really complicates things.
Not to mention a few other rulings cited in the decision.
> They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.
Yes, but the minute you do something illegal, you're outside your official capacity, so by infringing, they give up their immunity due to their position. So we're right back to "you can sue the person, but not the state" again.
The article discusses that exact point, but I don't blame anyone for missing it:] IANAL, and this is a complicated mess, but that's one of the few things I'm clear on.
> Why would you want this anyway? Do you really want the government to have the right to steal your work?
It's not that simple. They CAN still sue the individual responsible, per my understanding (IANAL, but it's discussed in TFA).
They just can't get lots of money from the state, now. They also appear to have been trying to copyright mere ideas, but that's another can of worms.
So, IMHO, it's a good ruling and good law, because it's not like the states have been authorizing infringement to begin with, and the state shouldn't necessarily be held responsible for what employees do on their own. I don't want to have $222k rulings like the one the RIAA got from Tanya Anderson come out of my tax money because someone in the state government actually infringed something. If anything, they should pay (assuming they actually infringed to begin with, of course--I do not believe Tanya Anderson infringed).
And there's the matter of the RIAA's war against universities over student infringement. I'd hate to see what they could do if this had gone the other way and they had found some way to combine it with other laws to hold the state universities liable for student (or even faculty) infringement.
I don't doubt that they would demand unreasonable settlements if they found the chance.
In short, that's why I think this is a good thing.
IANAL, but actually, there is a link between this and the RIAA's war on piracy, though it's a bit thin. To be more exact, had this gone the other way, it could have been a tool in the RIAA's legal arsenal.
You may not remember, but the RIAA has been after universities (there are plenty of Slashdot stories on that topic). Follow that by the fact that state universities are parts of the state, which are immunized by this ruling. Yes, it appears to allow them to still sue INDIVIDUALS (through more convoluted means), but they can't go after the state, which has all the money.
Instead, the RIAA has been going after university funding by threatening the funding of any institution that doesn't promise to do things like RIAA copyright 'education', or buying their crappy music services which they then force the students to use.
So it's a weak link, but it's still something that could be important.
I wonder, somehow, if the CyberArmy ever had anything to do with driving.su registrations? I mean, we did have that one challenge where you had to log in from a.su domain (though you were meant to fake your reverse DNS, not everyone did that)... Not too many other reasons I can imagine wanting an.su domain other than vanity.
I have flashblock and noscript up. I tried temporarily allowing just a few things to let me view the site, but when that didn't work, I gave up and deleted Dilbert from my bookmarks.
It's funny, but it's not worth it. He also has an irrational love of Microsoft at times, such as when he thought that Bill Gates would make a good president.
Because, you know, it's not like the rest of the world minds having the USA push them around. And it's not like Bill is known for being good at that kind of business, or anything like that...
Suffice it to say, I didn't feel like it was worth the bother to continue reading it.
> Where exactly is this "considered an illegal act"?
There have been several arrests which were reported on Slashdot. Florida and Michigan are at the top of the list, but why don't you do your own damn Googling? I'm sure the UK was in there somewhere, too.
> How the hell do you "consider" something to be illegal? It either is, or isn't.
You get arrested by a cop who is trying to push the boundaries of the law. Sure, they may have difficulty figuring out which law you broke, but you can sit in a nice holding cell while they figure that out.
> How the hell is 12% a "sizeable percentage"?
It's sizable because it's too many to arrest. Then again, 1% of US adults are in prison, so what do I know? If we build border fences to keep people *IN*, can we consider everyone to be under arrest and end the farce?
> Someone's really trying hard to make an article out of nothing.
It's more important than you think if it gives people any pause in supporting laws criminalizing wi-fi access. Even if you believe that it's wrong, there are enough mitigating factors that it would be better to encourage people to secure or responsibly manage their access points. Because otherwise, "unauthorized access" can cover all kinds of crap, including browsing the wrong web page. And that could become a big problem.
But you haven't been paying attention to the news, have you? Because I sure didn't have any trouble remembering the previous stories.
> Thirteen years ago, when I was in Military Intelligence, we were hounded and battered over even the appearance of domestic surveillance. A couple of years later, all that went out the window with the "Patriot" Act. Does anyone really believe that spying on your own people is Patriotic?
That makes me wish you were still there. I would like to believe that we can rely on our soldiers if not our politicians. I can only hope that more like you are among them, resisting the changes for the worse.
Agreed. People aren't arguing that "Microsoft is a doodyhead" they're arguing that specific ISO rules have been broken or ignored and that there's a pattern to which rules are violated that suggests this was done to help pass OOXML.
The sad thing is, even if some of the votes get invalidated that allowed OOXML to pass by ONE vote, I bet they'll just throw their hands up and say that they're not going to undo it because it would be too much trouble.
I guess the real question is what to do about sanctions? I don't know the law, but the RIAA claims that there's no exclusion for illegally obtained evidence in civil cases (though I don't think that removes them from liability for the illegal act) and that the law doesn't allow the Court to dismiss the case.
Personally, were I the judge (and I'd probably need to be a lawyer or at least go to law school first), I would draw an analogy from copyright misuse cases, strip them of their copyrights (because, after all, sanctions are evaluated by how effective a deterrent they are, NOT how 'fair' they are). After that, I'd let the other party file for summary judgment, because they no longer have a claim upon which relief may be granted after their copyrights are gone...
At least, that's MY logic. I only wish the Court would adopt something like that. I think it would be a VERY effective deterrent, too, given that copyrights are almost the only thing the RIAA seems to care about (other than money).
> No, you can not. It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so.
According to all the Court documents I've seen, MediaSentry itself conducts the investigations using their own custom programs. Because at no time have they alleged to use licensed investigators, I must presume that they have never done so. Their lawyers aren't stupid (tricky, yes, but not stupid) and if they could prove such a claim, they would be off the hook. Therefore, the ONLY reason they haven't made that claim is because they cannot.
While IANAL, more than a few legal opinions have drawn inferences using identical logic (they did not claim something because they could not), so I don't think I'm out on a limb, here. As such, I will not waiver from that opinion until and unless MediaSentry produces proof to the contrary in court. Anything less is an admission to the contrary on their part.
> Two wrongs do not make a right, and if IBM and other companies were wrong as he suggest, then so was Microsoft if they did the same, and it just goes to support the argument that the process was tampered with and the results discarded. By making that statement, he actually argued against his own position that everything went fine.
True, but you should mention the scale, too. Even if this is true (and I don't know that it is), we're talking about two people. TWO people. Versus dozens of small countries joining the ISO just for this vote, offering bribes in Sweden, and having hundreds of partners join all over the world. So we have TWO PEOPLE versus a DOZEN COUNTRIES?
Because this is their statement, I have to assume that they're making it as strongly as they can. So what we have is AT MOST two people, because if there were more, they would have named them. And they represent IBM & Google outright, not mystery "partners" who have "independent" interests.
So it's funny. They complain about people joining who represent the companies they say they do to thwart a complaint that they essentially bribed "independent" partners to join (check the firehose link for a source, BTW, the editors appear to have cut out the Groklaw sources that detail most of the tampering).
Forgive me, but this is nothing more than an admission of guilt on Microsoft's part.
> That makes no sense. In P2P situations, the idea is that the person has shared each song with lots of people who would otherwise have bought it.
Be that as it may, the damages (which are all that's in question) are statutory. That means it's $750-$150,000 per work infringed, period. No matter how much the work is "worth" (though you can recover actual damages, too, if you can prove them and jump through other legal hoops), and no matter whether or not they're shared on P2P.
I have yet to see the RIAA attempt to recover actual damages. The statutory damages are already insane, they don't even tend to ask for the full amount (even they know that would be even more ridiculous). That said, they still end up with $222,000 judgments or ~$5k (or whatever they charge now) if people settle.
So there's no way they're liable for 150,000x the value of the work (unless it was a $1 piece of software), but they ARE just as liable as anyone else who has infringed upon copyrights (assuming they're guilty, of course, which I will do just because their RIAA friends get the juries to do that).
> On his blog, he accused them of altering the filing date on some court documents. That's a very serious accusation--if they did it, it would be both a breach of legal ethics and a felony.
No he did not!
I *READ* that blog entry, back when it was available. What happened is that they filed the lawsuit a day before their patent issued, he laughed a little at it, and they refiled. So far as I know, the Patent Troll Tracker never claimed that they "altered" anything (like I said, they withdrew and refiled a day later, IIRC), let alone that they committed some kind of felony! In fact, the entire, crazy legal exercise was nothing more than two people fighting, one to avoid Marshall, Texas as a venue (home of the Patent Troll), and the other wanting a sensible venue.
Now, I don't know what you read (most likely the complaint), but it does not match my memory. Heck, this story was submitted weeks ago, but I guess they forgot to run it until now.
> One of the plaintiffs is the son of Judge T. John Ward, who sits in the Eastern District Court of Texas. The case is assigned to U.S. District Judge David Folsom. Folsom is quoted as saying:
You know, the legal standard for conflict of interest is NOT whether or not there's any actual impropriety. It's whether or not there's an appearance of impropriety. They'd better move those cases to another venue!
IANAL, just a private citizen, but it would DEFINITELY appear improper to me otherwise.
> After Novell won partial summary judgement against SCO that SCO owed them money for the MS and Sun deals, SCO declared Chapter 13 Bankruptcy. Chapter 13 bankruptcy means that the debtor (SCO) needs time to reorganize and some temporary protection from creditors (Novell, etc) while they figure a way to get back to solvency. This was Sept. 2007 and, the bankruptcy stopped the Novell trial.
Someone else already mentioned that it was Chapter 11 bankruptcy, but I thought I'd point out that in those Summary Judgment motions, Novell requested a constructive trust (i.e. we want our money) because they thought that SCO would declare bankruptcy. SCO denied that it was going to do that, then did so on the eve of trial, hoping they could get the bankruptcy court to bail them out...
So far, it's not working. The PDF has a good summary in it, too, BTW. Very entertaining to read all this from Novell:]
First, let me point out that I am not a lawyer, though I have taken a class that covered some of this stuff.
That said, recovery of court costs & attorney's fees is NOT automatic, nor will this case make them. We treat different types of cases differently. In SOME of those, there might be automatic or nearly-automatic awards. At most, this case would have the prevailing party awarded money in copyright cases, not all of them. Attorney's fees are also generally limited to being "reasonable" but I put that in quotes because they can still be rather high.
Anyhow, even if fees & costs get awarded by default in all copyright cases after this (and that will still require the Supreme Court to grant cert, something it does NOT do for most cases), I don't think that's a bad thing.
I mean, if you don't know who the copyright belongs to, why sue? See also: SCO v. IBM...
My understanding is that the prevailing party gets fees awarded in copyright cases. The question is whether one "prevails" if the other side withdraws their lawsuit. IMHO, yes, but that's a personal opinion I'm not basing on any law.
Given that they're appealing to the Supreme Court, it would seem that they lost on that issue during appeals (i.e. the first court gave them fees, the RIAA appealed and won, now they're asking the Supreme Court to step in). The problem is that the Supreme Court has VERY limited jurisdiction (which is spelled out in the Constitution) and doesn't have to listen to any other cases if they don't want to. So people ask them to grant cert (even lawyers hate spelling certiorari out) and listen to their case.
They overwhelmingly reject petitions to grant cert. They generally only step in when they're convinced that one of the following apply: A) It's really important to them (e.g. Florida recounts in 2000) B) There's been a circuit split, so half the country is interpreting the law differently. C) They want to articulate a new standard in law (e.g. Ring v. Arizona).
They vote on whether or not to grant cert, I believe it's 4 of the 9 who have to approve it before they'll hear the case. By and large, they overturn most of the rulings they hear, or else they send them back to the lower court with instructions. There wouldn't be much point, otherwise, because if the rulings were fine, they'd remain intact if the Supreme Court ignored them, and they have too many cases to waste time.
I should also mention that they may just take a case, then publish a written opinion based on the paperwork they see from the lower courts. They don't even have to let you argue, although they do have oral arguments often enough. And those are basically free-for-alls where the Justices pepper you with questions. It's nothing like a regular trial.
So I have three points: A) Don't expect them to grant cert (the RIAA has probably already won this one, the bastards). B) If cert is granted, expect them to lose. I doubt they'll argue it, but who knows? They can do almost anything they want. C) This is not the start of a loser-pays system. We already award court costs & attorney's fees (those are two different things) on a case-by-case basis. At most, this would make fee recovery automatic only in copyright cases. Personally, that makes sense to me. If you don't know whose copyright it is, don't sue. See also: SCO v. IBM...
For quite a while now, they've had a clause saying you can't work around any "technical restriction" in Windows. I don't know what that means, exactly, but I assume it was meant to say that you can't uncripple XP Home with software that would let it do the things XP Pro or the Server editions can do.
If Windows goes modular, some part of me suspects they'd try to use it (or at least FUD that it) restricted you from using non-Microsoft modules. Anti-trust might not like that, but Microsoft tends to worry about business much more than whether what they're doing is legal.
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> Well, it works for real, physical property.
That's... not a good way to argue it.
With real property, I can police it. If someone takes it, I can take it back. I can *see* people taking it if I watch. Transfers of IP can't be policed. They can happen entirely on someone else's property (e.g. between their computers) without my knowledge. Provided there's someone watching, it will never be impossible to notice that your property is missing. With IP, you have no way of knowing who has a copy of it, short of inspecting their real property (e.g. their hard drives).
> When men control the fruits of their own labors, society benefits from an abundance of such labors.
And when they cannot, for the reasons stated above, it's better to find a better way to encourage labor without resorting to unworkable legal fiction.
> So, why shouldn't you expect it to work for intellectual property, as well?
Because it's not possible to control IP that way. And the closest we can get involves having someone able to strip you of your privacy entirely, making a mockery of real property rights, like my computer which I use in my own home. Why would we want to support IP, out of an alleged respect for real property no less, by disrespecting that real property so thoroughly.
> Where is your counter-example? Or are you too busy declaring yourself to be "rubber, not glue" to think of one?
I believe I offered another, proper, counter-example after attacking the fallacious reasoning. But for whatever it's worth, I think that a person ought to make sure that their ideas are logically well-founded as well as correct.
You do the truth a great disservice than when you defend it wrongly.
Nope. Doing anything illegal (like infringing) strips you of your personal protection because you're outside your official capacity the minute you infringe.
The state is fully protected (and our tax money, as another way to look at it), but the employee themselves is not. IANAL, but look at the strange way that lawsuit was dismissed: the one who allegedly infringed (outside of their official capacity) is the only one left to sue.
I know it's hard to read, when it dismissed the suit against the alleged infringer in their official capacity, but the article itself tells you that they're not off the hook in terms of personal liability.
I don't think you understand how making claims works (usually, one is obligated to support them, not challenge whoever challenges your assertions).
And when you say "Since you chose to challenge the claim, it is up to you to find a counterexample." I'm sorely tempted to post an ironic reply in the vein of "Anyone who says that loses the argument (it's up to you to provide a counterexample if you disagree)."
But don't get me wrong, I think that copyright is the wrong way to do the right thing, if that makes any sense. I just don't like that method of reasoning.
However, instead I would like to point to the Renaissance. It pretty well predates any real notion of copyright, and last I checked, those countries that participated did not all fall into ruin. But I suppose you'll merely tell me that most later adopted copyright?
Anyhow, I have a stone for you. It keeps tigers away...
> The 11th Amendment just says that you can't sue a State in Federal court.
True. It's the part where copyright claims have to be filed in federal court (see 28 U.S.C. sec. 1338(a) -- citation taken from Compulawyer's post) that really complicates things.
Not to mention a few other rulings cited in the decision.
> They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.
:] IANAL, and this is a complicated mess, but that's one of the few things I'm clear on.
Yes, but the minute you do something illegal, you're outside your official capacity, so by infringing, they give up their immunity due to their position. So we're right back to "you can sue the person, but not the state" again.
The article discusses that exact point, but I don't blame anyone for missing it
> Why would you want this anyway? Do you really want the government to have the right to steal your work?
It's not that simple. They CAN still sue the individual responsible, per my understanding (IANAL, but it's discussed in TFA).
They just can't get lots of money from the state, now. They also appear to have been trying to copyright mere ideas, but that's another can of worms.
So, IMHO, it's a good ruling and good law, because it's not like the states have been authorizing infringement to begin with, and the state shouldn't necessarily be held responsible for what employees do on their own. I don't want to have $222k rulings like the one the RIAA got from Tanya Anderson come out of my tax money because someone in the state government actually infringed something. If anything, they should pay (assuming they actually infringed to begin with, of course--I do not believe Tanya Anderson infringed).
And there's the matter of the RIAA's war against universities over student infringement. I'd hate to see what they could do if this had gone the other way and they had found some way to combine it with other laws to hold the state universities liable for student (or even faculty) infringement.
I don't doubt that they would demand unreasonable settlements if they found the chance.
In short, that's why I think this is a good thing.
IANAL, but actually, there is a link between this and the RIAA's war on piracy, though it's a bit thin. To be more exact, had this gone the other way, it could have been a tool in the RIAA's legal arsenal.
You may not remember, but the RIAA has been after universities (there are plenty of Slashdot stories on that topic). Follow that by the fact that state universities are parts of the state, which are immunized by this ruling. Yes, it appears to allow them to still sue INDIVIDUALS (through more convoluted means), but they can't go after the state, which has all the money.
Instead, the RIAA has been going after university funding by threatening the funding of any institution that doesn't promise to do things like RIAA copyright 'education', or buying their crappy music services which they then force the students to use.
So it's a weak link, but it's still something that could be important.
Groklaw also has information on this story for those interested. But some may have missed it because it's part of the update in this story.
I wonder, somehow, if the CyberArmy ever had anything to do with driving .su registrations? I mean, we did have that one challenge where you had to log in from a .su domain (though you were meant to fake your reverse DNS, not everyone did that)... Not too many other reasons I can imagine wanting an .su domain other than vanity.
I have flashblock and noscript up. I tried temporarily allowing just a few things to let me view the site, but when that didn't work, I gave up and deleted Dilbert from my bookmarks.
It's funny, but it's not worth it. He also has an irrational love of Microsoft at times, such as when he thought that Bill Gates would make a good president.
Because, you know, it's not like the rest of the world minds having the USA push them around. And it's not like Bill is known for being good at that kind of business, or anything like that...
Suffice it to say, I didn't feel like it was worth the bother to continue reading it.
> Where exactly is this "considered an illegal act"?
There have been several arrests which were reported on Slashdot. Florida and Michigan are at the top of the list, but why don't you do your own damn Googling? I'm sure the UK was in there somewhere, too.
> How the hell do you "consider" something to be illegal? It either is, or isn't.
You get arrested by a cop who is trying to push the boundaries of the law. Sure, they may have difficulty figuring out which law you broke, but you can sit in a nice holding cell while they figure that out.
> How the hell is 12% a "sizeable percentage"?
It's sizable because it's too many to arrest. Then again, 1% of US adults are in prison, so what do I know? If we build border fences to keep people *IN*, can we consider everyone to be under arrest and end the farce?
> Someone's really trying hard to make an article out of nothing.
It's more important than you think if it gives people any pause in supporting laws criminalizing wi-fi access. Even if you believe that it's wrong, there are enough mitigating factors that it would be better to encourage people to secure or responsibly manage their access points. Because otherwise, "unauthorized access" can cover all kinds of crap, including browsing the wrong web page. And that could become a big problem.
But you haven't been paying attention to the news, have you? Because I sure didn't have any trouble remembering the previous stories.
> Thirteen years ago, when I was in Military Intelligence, we were hounded and battered over even the appearance of domestic surveillance. A couple of years later, all that went out the window with the "Patriot" Act. Does anyone really believe that spying on your own people is Patriotic?
That makes me wish you were still there. I would like to believe that we can rely on our soldiers if not our politicians. I can only hope that more like you are among them, resisting the changes for the worse.
Agreed. People aren't arguing that "Microsoft is a doodyhead" they're arguing that specific ISO rules have been broken or ignored and that there's a pattern to which rules are violated that suggests this was done to help pass OOXML.
The sad thing is, even if some of the votes get invalidated that allowed OOXML to pass by ONE vote, I bet they'll just throw their hands up and say that they're not going to undo it because it would be too much trouble.
Or something like that.
I guess the real question is what to do about sanctions? I don't know the law, but the RIAA claims that there's no exclusion for illegally obtained evidence in civil cases (though I don't think that removes them from liability for the illegal act) and that the law doesn't allow the Court to dismiss the case.
Personally, were I the judge (and I'd probably need to be a lawyer or at least go to law school first), I would draw an analogy from copyright misuse cases, strip them of their copyrights (because, after all, sanctions are evaluated by how effective a deterrent they are, NOT how 'fair' they are). After that, I'd let the other party file for summary judgment, because they no longer have a claim upon which relief may be granted after their copyrights are gone...
At least, that's MY logic. I only wish the Court would adopt something like that. I think it would be a VERY effective deterrent, too, given that copyrights are almost the only thing the RIAA seems to care about (other than money).
> No, you can not. It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so.
According to all the Court documents I've seen, MediaSentry itself conducts the investigations using their own custom programs. Because at no time have they alleged to use licensed investigators, I must presume that they have never done so. Their lawyers aren't stupid (tricky, yes, but not stupid) and if they could prove such a claim, they would be off the hook. Therefore, the ONLY reason they haven't made that claim is because they cannot.
While IANAL, more than a few legal opinions have drawn inferences using identical logic (they did not claim something because they could not), so I don't think I'm out on a limb, here. As such, I will not waiver from that opinion until and unless MediaSentry produces proof to the contrary in court. Anything less is an admission to the contrary on their part.
> Two wrongs do not make a right, and if IBM and other companies were wrong as he suggest, then so was Microsoft if they did the same, and it just goes to support the argument that the process was tampered with and the results discarded. By making that statement, he actually argued against his own position that everything went fine.
True, but you should mention the scale, too. Even if this is true (and I don't know that it is), we're talking about two people. TWO people. Versus dozens of small countries joining the ISO just for this vote, offering bribes in Sweden, and having hundreds of partners join all over the world. So we have TWO PEOPLE versus a DOZEN COUNTRIES?
Because this is their statement, I have to assume that they're making it as strongly as they can. So what we have is AT MOST two people, because if there were more, they would have named them. And they represent IBM & Google outright, not mystery "partners" who have "independent" interests.
So it's funny. They complain about people joining who represent the companies they say they do to thwart a complaint that they essentially bribed "independent" partners to join (check the firehose link for a source, BTW, the editors appear to have cut out the Groklaw sources that detail most of the tampering).
Forgive me, but this is nothing more than an admission of guilt on Microsoft's part.
> That makes no sense. In P2P situations, the idea is that the person has shared each song with lots of people who would otherwise have bought it.
Be that as it may, the damages (which are all that's in question) are statutory. That means it's $750-$150,000 per work infringed, period. No matter how much the work is "worth" (though you can recover actual damages, too, if you can prove them and jump through other legal hoops), and no matter whether or not they're shared on P2P.
I have yet to see the RIAA attempt to recover actual damages. The statutory damages are already insane, they don't even tend to ask for the full amount (even they know that would be even more ridiculous). That said, they still end up with $222,000 judgments or ~$5k (or whatever they charge now) if people settle.
So there's no way they're liable for 150,000x the value of the work (unless it was a $1 piece of software), but they ARE just as liable as anyone else who has infringed upon copyrights (assuming they're guilty, of course, which I will do just because their RIAA friends get the juries to do that).
> On his blog, he accused them of altering the filing date on some court documents. That's a very serious accusation--if they did it, it would be both a breach of legal ethics and a felony.
No he did not!
I *READ* that blog entry, back when it was available. What happened is that they filed the lawsuit a day before their patent issued, he laughed a little at it, and they refiled. So far as I know, the Patent Troll Tracker never claimed that they "altered" anything (like I said, they withdrew and refiled a day later, IIRC), let alone that they committed some kind of felony! In fact, the entire, crazy legal exercise was nothing more than two people fighting, one to avoid Marshall, Texas as a venue (home of the Patent Troll), and the other wanting a sensible venue.
Now, I don't know what you read (most likely the complaint), but it does not match my memory. Heck, this story was submitted weeks ago, but I guess they forgot to run it until now.
> One of the plaintiffs is the son of Judge T. John Ward, who sits in the Eastern District Court of Texas. The case is assigned to U.S. District Judge David Folsom. Folsom is quoted as saying:
You know, the legal standard for conflict of interest is NOT whether or not there's any actual impropriety. It's whether or not there's an appearance of impropriety. They'd better move those cases to another venue!
IANAL, just a private citizen, but it would DEFINITELY appear improper to me otherwise.
> Nothing happens.
You're being totally unfair to the game! How could you leave out the bug splat? It's the most exciting thing in the whole game!
> That the legislature blocked it is a good thing: universal health care does no one any good if everyone is broke.
And what good is money if you're dead?
> After Novell won partial summary judgement against SCO that SCO owed them money for the MS and Sun deals, SCO declared Chapter 13 Bankruptcy. Chapter 13 bankruptcy means that the debtor (SCO) needs time to reorganize and some temporary protection from creditors (Novell, etc) while they figure a way to get back to solvency. This was Sept. 2007 and, the bankruptcy stopped the Novell trial.
:]
Someone else already mentioned that it was Chapter 11 bankruptcy, but I thought I'd point out that in those Summary Judgment motions, Novell requested a constructive trust (i.e. we want our money) because they thought that SCO would declare bankruptcy. SCO denied that it was going to do that, then did so on the eve of trial, hoping they could get the bankruptcy court to bail them out...
So far, it's not working. The PDF has a good summary in it, too, BTW. Very entertaining to read all this from Novell
First, let me point out that I am not a lawyer, though I have taken a class that covered some of this stuff.
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That said, recovery of court costs & attorney's fees is NOT automatic, nor will this case make them. We treat different types of cases differently. In SOME of those, there might be automatic or nearly-automatic awards. At most, this case would have the prevailing party awarded money in copyright cases, not all of them. Attorney's fees are also generally limited to being "reasonable" but I put that in quotes because they can still be rather high.
Anyhow, even if fees & costs get awarded by default in all copyright cases after this (and that will still require the Supreme Court to grant cert, something it does NOT do for most cases), I don't think that's a bad thing.
I mean, if you don't know who the copyright belongs to, why sue? See also: SCO v. IBM
My understanding is that the prevailing party gets fees awarded in copyright cases. The question is whether one "prevails" if the other side withdraws their lawsuit. IMHO, yes, but that's a personal opinion I'm not basing on any law.
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Given that they're appealing to the Supreme Court, it would seem that they lost on that issue during appeals (i.e. the first court gave them fees, the RIAA appealed and won, now they're asking the Supreme Court to step in). The problem is that the Supreme Court has VERY limited jurisdiction (which is spelled out in the Constitution) and doesn't have to listen to any other cases if they don't want to. So people ask them to grant cert (even lawyers hate spelling certiorari out) and listen to their case.
They overwhelmingly reject petitions to grant cert. They generally only step in when they're convinced that one of the following apply:
A) It's really important to them (e.g. Florida recounts in 2000)
B) There's been a circuit split, so half the country is interpreting the law differently.
C) They want to articulate a new standard in law (e.g. Ring v. Arizona).
They vote on whether or not to grant cert, I believe it's 4 of the 9 who have to approve it before they'll hear the case. By and large, they overturn most of the rulings they hear, or else they send them back to the lower court with instructions. There wouldn't be much point, otherwise, because if the rulings were fine, they'd remain intact if the Supreme Court ignored them, and they have too many cases to waste time.
I should also mention that they may just take a case, then publish a written opinion based on the paperwork they see from the lower courts. They don't even have to let you argue, although they do have oral arguments often enough. And those are basically free-for-alls where the Justices pepper you with questions. It's nothing like a regular trial.
So I have three points:
A) Don't expect them to grant cert (the RIAA has probably already won this one, the bastards).
B) If cert is granted, expect them to lose. I doubt they'll argue it, but who knows? They can do almost anything they want.
C) This is not the start of a loser-pays system. We already award court costs & attorney's fees (those are two different things) on a case-by-case basis. At most, this would make fee recovery automatic only in copyright cases. Personally, that makes sense to me. If you don't know whose copyright it is, don't sue. See also: SCO v. IBM
For quite a while now, they've had a clause saying you can't work around any "technical restriction" in Windows. I don't know what that means, exactly, but I assume it was meant to say that you can't uncripple XP Home with software that would let it do the things XP Pro or the Server editions can do.
If Windows goes modular, some part of me suspects they'd try to use it (or at least FUD that it) restricted you from using non-Microsoft modules. Anti-trust might not like that, but Microsoft tends to worry about business much more than whether what they're doing is legal.