Microsoft has the nerve to sue other companies for typosquatting? Normally, I'm all for suing such vermin but Microsoft?
Type www.lyndows.com in your browser and see where you end up.
Lemme see if I can find an email address for TFA's author and ask to to go back to Microsoft for a comment.
"...we do not show a breakdown of drives per manufacturer, model, or vintage due to the proprietary nature of these data."
Litigation avoidance may be a consideration here but why not take Google at their word? Google is a search company that buys lots of hard drives. Based on their own internal research, they have developed information about which hard disk models and/or manufacturers are shite.
Yahoo is also a search company that buys lots of hard drives. Why should Google give that hard drive reliability information to you, me and Yahoo for free? Let Yahoo/Excite/MSN and the competitors figure it out for themselves.
Yeah, sure I'd like to have access to Google's data the next time I'm in the market for a hard drive but I won't hold a grudge against them if they don't do my consumer research for me. On the other hand, whereinafuck is the data from Tom's Hardware Guide, Anandtech, Consumer Reports and all the other reviewer and consumer sites? If someone doesn't have a handy link to their results, I'll see if I can google something up:
"The goodness of this victory is diluted by the fact that Wallace didn't have the money to properly argue his case. As such, it doesn't have much value as a precident. If someone with big bucks was making the argument, and if the GPL was being defended by someone with no resources, the decision could have gone the other way.
Note that the bully boys of the RIAA always go after people who don't have the resources to defend themselves. Even then they lose the occasional case. Justice in this country goes to whoever can hire the best lawyers.
Am I cynical? Yep."
You and a lot of other people will be rereading bits of this opinion for years. It was written for law school textbooks as much as it was to dispose of this case.
First off, it was a Court of Appeals decision, not a trial court. Second, it was Frank Easterbrook, a very well known and somewhat regretfully, well-regarded senior judge. He is a big in the Law and Economics school of judges and other judges pay attention to his stuff. He doesn't cream the plaintiff on something mundane like standing or another procedural issue. Instead, he deals clearly with the most basic antitrust and GPL philosophy issues imaginable. And he gets it right.
There is something to see here and you are averting your eyes. The throttling scam works like this:
Assume the total amount of VOIP traffic that wants to move across a telco's network is some number. Let's call that number 11 (think Spinal Tap). Now, of that 11, 3 is VOIP traffic from the telco's own service. The remaining 8 is Vonage, Skype and all the rest. Rather than fuck with the rest directly (illegal), the telco throttles total available VOIP bandwidth to 10 but assigns preferential QOS headers to the 3 that it profits from. Vonage and company now have to share the remaining 7 even though they need 8. Their quality suffers and they shed customers to the telco's VOIP service. As long as the telco tweaks the throttle correctly, they can bleed Vonage without breaking the law as currently written.
Ulysses Grant graduated near last in his class at West Point. He performed well in the Mexican War as a junior officer but dropped out of the military in the 1854 for poor performance and then failed at several business ventures and became a drunk and a failure. Worked in the family in Galena Illinois until the Civil War came along and the army was so desperate for officers they would even give Sam Grant a second shot.
George McClellan was second in his class at West Point and was accurately judged to be a brilliant organizer. He built the Army of the Potomac. Unfortunately, once he had to use the army in combat, he choked. He was too hesitant. A pissed off Lincoln said McClellan had a case of the "slows" and asked if he wasn't using the army just then, would he mind if Lincoln borrowed it.
Grant by contrast remained a plodding tactician but never flinched under pressure. He did well in combat and rose to Colonel and then started picking up general's stars and eventually the Army of the Potomac. He never showed much flair but damn if he didn't grind the rebels down with relentless combat. Grant won ugly but he won.
"Ok, fine, but what does running electoral-vote.com have to do with that? The question "Why Did You Do This?" implies that he is "do"ing something to influence people to vote in a particular way, which I simply don't see that website doing. In fact, other than the admittedly editorial sections of the site, I have found the site to be remarkedly unbiased."
Part of the answer is that the national polls are misleading. Bush has tended to lead the national polls by sometimes substantial margins. However, national polls are not entirely relevent because it is not a national election. The Electoral College vote turns on state by state elections. While Kerry has hardly ever led in the national polls, he has usually been tied or ahead in the Electoral College race. By concisely tracking the Electoral College race, Tanenbaum helps people cut through the wrongheaded perception that Bush has been winning because he led national polls. Part of the Bush strategary has been to portray the election as an inevitable, therefore resistance is futile.
/Unbiased Explanation
OK, now for the flamebait. Red states tend to be very very red while Blue states are more mixed. Purplish even. Kerry can win by taking the Blue and Purple states with 51% even if Bush racks up 100% of the Republiklan votes in the deep red states. Bush finally wins the popular vote but is redefeated anyway.
A well-executed little Goebbels-Orwell echo chamber you cite there.
Your source, Fox News, a Republican party house organ quotes a psuedo-science corporate-created astroturf group (Committee for a Constructive Tomorrow) attacking the PIRGs for being environmentalist.
CFACT, like Fox, is sponsored and staffed by wingnuts with a political agenda and corporations with an economic agenda. I have no problem with corporations having an economic agenda (they damn well better) but see no need to believe the silly claims they pay fake science groups like CFACT to tout. Bogus denials of global warming and attacks on environmentalists should bring back memories of the tobacco companies and their similar coin-operated cancer "research" scams.
Reality check: Cigarettes cause cancer, global warming is real, CFACT is a scam and Fox is propaganda.
OK, I hate spam as much as the next homicidally enraged Slashdot reading spamee. Habeas' business plan though is legally dubious at least with respect to copyright law. The trademark thing, though, just might fly.
The purpose of copyright law is to protect original works of expression. There are also built in limitations the most notable of which is fair use. There is no bright line definition of fair use but quoting a few lines of Haiku hardly seems unfair. The attempt by a private party to turn copyright law into a de facto anti-spam law is not likely to be upheld. Congress wrote a copyright law. Congress also wrote an anti-spam law. If Congress wanted to use copyright law to stop spam, it presumably could have figured out how to write such a law. It did not.
The trademark angle is more promising. The purpose of trademark law is to identify the source of goods in trade. Insofar as Habeas' goods are emails that it warrants are free of spam, it would be a trademark infringement for another company to identify the source of their spam as Habeas.
Ignore the conspiracy theory nutjobs blaming aliens for damaging the Japanese probe. There probably is something wrong (as in intentionally untrue) about this story but there is a simpler and more human explanation for it. If JAXA's version of events is correct, this is the third space vehicle they've had die recently because of solar flares. (See http://www.spacedaily.com/2003/031031090646.2kxsn1 mx.html).
They lost Midori-2 and Kodama in October, both supposedly due to solar flares. According to a friend who works on the Midori program, they really don't know what went wrong. The power started fading and over the course of several hours, went from about 6Kw of power to 1Kw. If a solar flare killed Midori-2, the power should have dumped quickly. Despite not knowing why it died, they blamed solar flares. My guess is that flares got the blame because that way, it is nobody's fault. Given how unforthcoming JAXA has been about Nozumi, I would not take their explanation of Nozumi's problems at face value unless they also release credible data showing cause and effect.
You are asking the wrong question. The issue isn't goint to be whether a minor can assume a debt. That is a contract law question and the answer is usually no unless it is for necessities like food and housing. The legal question is going to be either whether a minor can be held liable for a tort or whether the parent can be held liable for not preventing the minor from committing a tort. It will be hard to hold a 12 year old directly liable for this so the family's lawyer (if they can afford one) should be able to get the case dismissed pretty easily unless RIAA amends the suit to allege the mother was negligent in supervising the child. The RIAA is plenty stupid but I don't think they are *that* stupid. My guess is RIAA's lawyers file a motion to dismiss this loser within a week.
Almost everything else SCO has said is ridiculous but I'm not sure they are entirely wrong on this point (although it won't matter).
The Copyright Act grants the author or a work six exclusive rights;
1. to copy it
2. to distribute it
3. to adapt it
4. to perform it in public
5. to display it in public
6. to digitally distribute the work.
The fourth and fifth rights apply to things like music, movies, plays and works of art so aren't relevent here. But, if you are an end user and installed GNU/Linux from CDs then you created a copy on your computer's hard disk during the course of installation. If the Linux kernel has infringing code in it then a user who installs it in his or her code is an infringer. So far, there is no credible evidence that there is infringing code in the kernel.
If you merely use a computer that has the Linux kernel installed on it (and you didn't have anything to do with the installation), then it isn't possible to have infringed anyone's exclusive rights. If we suspend disbelief for a moment and posit that there is infringing code in Linux, that would make most companies that use Linux liable for infringement (if their IT staff rolled their own). However, a staff member like a secretary who merely uses Linux would not be an infringer. I assume that most self-respecting Slashdot-reading Linux users will have installed their own so they are potential infringers.
I'll add a caveat to that last paragraph. If you have recently installed SCO's version of Linux, you may well be an infringer. Their right to distribute the Linux kernel derives from the GPL. If SCO is violating the GPL by trying to assert proprietary rights over code they don't own, their legal basis for copying and distributing the kernel is forfeit. If SCO doesn't have the right to copy or distribute a kernel, then their ISVs and downstream users don't have the right to install their version of the kernel.
Maybe Linus should send a letter to SCO's channel partners and new users saying: "I believe that SCO Linux is, in material part, an unauthorized derivative of my Linux." And attach an invoice for $699 per CPU.
Technically, they can *start* a lawsuit without showing code. The initial complaint can be as little as a paragraph saying "They stole my code!" During the initial stages of litigation, they would have to introduce more evidence or the judge would eventually dismiss the case for failure to state a claim. To get scheduled for a trial they would have to show code. Unless they have a lot better evidence than what they showed at the SCOsource fiasco, they would get bounced in a heartbeat.
Also, Eben Moglen is right about the stupidity of Mark Heise's interpretation of the GPL as being preempted by the Copyright Act. (Heise is the lawyer representing SCO). If any lawyer were incompetent or malicious enough to waste a court's time with garbage like that they would likely get a stiff fine under Rule 11 of the Federal Rules of Civil Procedure. In layman's terms, Rule 11 is used by a judge to say "You have the nerve to bring that piece of shit argument into my courtroom?" It is hard to believe that Heise is really stupid enough to believe what he said so maybe he is just being deceptive. On the other hand, SCO has been repeating that reasoning in interviews with the press so maybe Heise and co. really are that dumb.
Let me add a couple of small facts to show why shooting out the window was excused.
I gaze out my window and spy a squirrel sitting in yonder tree. Being a sportsman of some renown, I decide to bag said squirrel and mount its head above the mantle here at Double Wide Manor. Double Wide Manor, I should mention, is located miles from my closest neighbor's trailer in an unincorporated section of the county of Bumfucknowhere and thus it is neither reckless nor illegal to discharge my firearm out said window. Alas, and totally unbeknownest to me, you have chosen this very moment to trespass upon my grounds and relieve yourself behind yonderer tree. On these facts, ignorance of your presence will excuse me from criminal liability for shooting you.
I think a EULA whereby a user of VC++ agreed to assign the copyright in code generated with the program might fly but there is a constitutional problem with a EULA that makes code generated by the program a derivative work.
For something to be eligible for copyright protection, it has to be: an original work fixed in a medium of tangible expression. Leaving aside an, in, a and of, all the remaining words have highly specific meanings. If something is original, it has to have an author. Machines cannot be authors of original works because they aren't capable thinking (computing doesn't count as thinking). A derivative work will have at least two authors---the author of the original work and the author of the new work that adapts or transforms the original. Where is the original work that was adapted or transformed? The output of the code clearly has some originality but it isn't a new version of VC.
This isn't a contract law issue. Rather, it is a fundamental requirement of copyright law. I can make a contract with you whereby you agree to become a slave in exchange for me paying money to your parents. At a minimum, the agreement would be unenforceable because the (U.S.) government won't allow private parties to contract around the constitutional prohibition on slavery. The originality requirement in copyright law also stems from a constitutional requirement (Art. I, Sec. 8) and private parties cannot contract around the requirement. Because the VC++ program cannot be an author, works created with it cannot be derivative works.
At least in some states in the US, clickthrough licenses are considered valid as long as they don't contain unusual and/or outrageous terms. For a case arguing why they should be upheld, Google on ProCD, Inv. v. Zeidenberg. In that case, a Federal Appeals Court said that under Wisconsin law and the Uniform Commercial Code, shrinkwrap licenses are valid and also said pretty much the same thing about clickwrap licenses. As that case was specifically about shrinkwrap, you could dismiss the stuff about clickwrap as dicta and therefore not binding in any future case but courts seem to be following it. See e.g. Forrest v. Verizon Communications (D.C. Court of Appeals Aug 2002) and Moore v. Microsoft 741 NYS2d 91 (2d Dept. 2002).
Enforcing clickwraps may be bad policy and they may not always be enforceable, but that != "Just like all of them, it's not valid".
Infoworld's description of what the Supreme Court did not do is sloppy journalism. The Supreme Court didn't issue a decision in the case, it simply declined to hear it. Declining to hear a case has zero precedential value.
In the 2001 term, the Court was asked to hear 7,924 cases and only heard arguments in 88 of them, resulting in signed opinions in a mere 76 cases. Those 76 are the only real decisions the Court made. The Infoworld story is probably accurate in it's prediction that software companies will probably be more aggressive in using EULAs to stop reverse engineering but the most that can be said is that the Supreme Court has neither endorsed nor prohibited what the U.S. Court of Appeals for the Federal Circuit did. The other Circuits are not bound by this decision.
Once Congress grants a right (as opposed to extending a privilege), it cannot arbitrarily revoke it. If Congress tried that, the courts would probably slap them down on both just compensation and due process grounds. To the extent that money is at stake, the rationale would probably be just compensation/takings but you could get at pretty much the same result with a due process argument. The way I read the Constitution and the Copyright Act, there is no obligation to grant rights in the future but the ones already granted would be difficult and expensive to revoke.
Authors of original works (unless the work in question is a 'work for hire') have certain rights that are not alienable. Under the law of some European countries and in the state of California, there are "moral rights" laws regarding the right to claim authorship and potentially a share in subsequent sales. The most important right under US copyright law that cannot be alienated is the right to reclaim the copyright that has been assigned. If, for example, you write a book and assign the copyright to someone else (usually for money), then at some point in the future you--or more likely your heirs--can reclaim the copyright by serving notice on the assignee. If you never serve notice, the assignee retains the copyright until it expires.
By the way, the same thing applies for people who write code that they release under the GPL and for which they assign the copyright to the Free Software Foundation. At some point in the future, you could get the copyright back. I'll have to check out my copyright textbook but I can't think of a reason why someone could not reclaim their copyright and then demand royalties for any GPLd software still using the code. I'm not sure it will matter in practice because the earliest any code could be reclaimed would be about 35 years from the date it was first fixed in a medium of tangible expression. So if RMS wrote his parts of the GCC in the mid-80s and if he should ever change his mind about free software, sometime around 2020 he could pull a SCO. Anyone know whether and why copyright law would prevent this?
The term "protected" is no better than "intellectual property." Privileged is more accurate. The holder of the privilege can exclude others from using the same expression so the holder is "protected" from competition but that obscures the nature of what is going on. Rights are protected, privileges are granted. Monopolies are granted to those priviliged enough to get them. It is right to grant some privilege to authors but we should be clear about what we are doing and why so that we do not grant too much. Macaulay says it best:
It is good that authors should be remunerated; and the least exceptional way of remunerating them is by a monopoly. Yet monopoly is evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
I.T.B. Macaulay, Macaulay's Speeches and Poems. 1874.
I should add a caveat. I am not against the existence of copyright, patents, trade marks and all the other things that go by the name of "intellectual property" but think that if we had a clearer and more honest term to refer to them, we would do a better job of defining them.
I don't think "intellectual controls" works well. "Intellectual property" is an intentionally dishonest term but only half the problem is with "property." Substitute your least favored pop culture expellers for my examples but I fail to see the "intellectual" property in the music of Britney Spears or a song like "I want to sex you up" by Five.
If the assertion that much of what goes by the name of "intellectual property" is "property" is dishonest than the claim that it is "intellectual" is pretentious. Browse over to http://autopr0n.com and tell me if you think those copyrighted images are appealing to your intellect (they may be appealing but they are aimed at a different organ).
Stallman is mostly right when he rails against the conflation of copyright, patent and trademark law into "intellectual property." Right insofar as it is at best sloppy thinking to lump things together that are so dissimilar. Only partially right because the "intellectual property" field also includes things like publicity rights, right to privacy and moral rights. So if it isn't "intellectual property" or intellectual controls", what then? The most accurate term I can think of to cover most of this ground is "expression monopoly."
What copyright, patent and trademark have in common is that they all regulate who can use the expression of certain ideas. Copyright law assigns rights to who can make literal or derivative copies of a specific expression. Patents cover who can express an idea regardless of the the specific form. Trademarks are about who can use specific expressions in a commercial context.
The common denominator is the monopoly power granted by the government.* There are assertions in US law that patents aren't monopolies but it is safe to regard those claims as dishonest semantics (unless arguing before the dishonest judges who make the claims).
Even "expression monopoly" doesn't cover the ground perfectly. For example, moral rights have more to do with mandated expression rather than monopolized ones.
* For those (Americans) who insist on the "property" part of intellectual property, reread the copyright and trademark clause of the Constitution and tell us if there is any reason that Congress must grant authors a monopoly. I can see why the just compensation clause would prevent Congress from nullifying existing copyrights and patents but it would not be unconstitutional for the government could stop issuing new ones tomorrow. Unlike real property, "intellectual property" is a creation of the state and one which it is under no obligation to go on creating. When the government grants something that it is not obliged to, it is generally described as a privilege rather than a right.
To those who before me in this thread who reel off a list of things the FSF and EFF should be filing patents on, calm down and think for a minute.
Filing a single patent application costs thousands of dollars once you figure in the cost of the lawyer--if you can find one qualified to file a patent application. Lawyers qualified to practice patent law are few and far between. In order to become a patent attorney, you have to have a B.S. in Science and a large percentage (probably most) of people who opt for law school have a background in arts and crafts. The rare lawyer who meets this prerequisite can, after passing the regular bar exam try to pass the patent bar exam. Now, make an estimate of how many lawyers the FSF and EFF between them can afford and then decide how much of their time ought to be spent filing patent applications that they never intend to use for generating revenue. And god help them if they ever have to litigate a patent dispute. Expect to spend hundreds of thousands of dollars a pop if you get into an all out court fight over a patent.
If after considering these facts, do you still think FSF and EFF should be spending their scarce resources on anything besides lobbying to change the patent system? If you still believe they should be filing patent applications, how much are you willing to contribute to help them fund it?
Some rant that Stallman should have spoken up against SCO a long time ago and some rant that he is injecting himself into it for the publicity (never mind that SCO was the first one to inject RMS into this by attributing a made up quote to him).
My understanding from Stallman is that he has stayed out of the SCO/IBM fight the advice of his counsel. Moglen has done most of the talking for FSF and since this is about a lawsuit after all, it is good advice and to Stallman's credit that he seems to have been taking it. To those who complain that his commentary is mostly a recycled FSF press release, it probably is (aside from his newsworthy denial of SCO's misquotation). But if I was his lawyer, I wouldn't want him saying much since SCO will try to twist whatever he says into an admission of guilt on behalf of all free software coders.
Stallman is repetitive and sometimes difficult in his insistence on the precise use of terms and in his adherence to the principles he holds. But leaving aside the value of his code contributions to free software, it was his muleheaded insistence on precision and principals that brought about the GPL in the first place.
I won't second guess people who dislike or even detest Stallman for his idiosyncrasies or because they do not share his beliefs. But if you believe that what SCO is doing is illegimate, at least have the honesty and/or decency to concede Stallman's foresight in keeping GNU clean of Unix code and in not giving SCO rhetorical ammunition through sloppy terminology. If you will remember, SCO was able to take Bruce Perens' quotes out of context to make him look like he advocated infringing copyright but for Stallman, they had to make up a quote (which they have now quietly deleted from their website without acknowledging its falsity). See http://www.caldera.com/scosource/quotes_from_leade rs.html
Slashdot Mirror
Microsoft has the nerve to sue other companies for typosquatting? Normally, I'm all for suing such vermin but Microsoft? Type www.lyndows.com in your browser and see where you end up. Lemme see if I can find an email address for TFA's author and ask to to go back to Microsoft for a comment.
"...we do not show a breakdown of drives per manufacturer, model, or vintage due to the proprietary nature of these data."
t =firefox-a&rls=com.ubuntu%3Aen-US%3Aofficial&hs=tq y&q=hard+drive+reliability+research+brands++manufa cturers+models&btnG=Search
Litigation avoidance may be a consideration here but why not take Google at their word? Google is a search company that buys lots of hard drives. Based on their own internal research, they have developed information about which hard disk models and/or manufacturers are shite.
Yahoo is also a search company that buys lots of hard drives. Why should Google give that hard drive reliability information to you, me and Yahoo for free? Let Yahoo/Excite/MSN and the competitors figure it out for themselves.
Yeah, sure I'd like to have access to Google's data the next time I'm in the market for a hard drive but I won't hold a grudge against them if they don't do my consumer research for me. On the other hand, whereinafuck is the data from Tom's Hardware Guide, Anandtech, Consumer Reports and all the other reviewer and consumer sites? If someone doesn't have a handy link to their results, I'll see if I can google something up:
http://www.google.com/search?hl=en&safe=off&clien
Anonymous Coward asserted:
"The goodness of this victory is diluted by the fact that Wallace didn't have the money to properly argue his case. As such, it doesn't have much value as a precident. If someone with big bucks was making the argument, and if the GPL was being defended by someone with no resources, the decision could have gone the other way.
Note that the bully boys of the RIAA always go after people who don't have the resources to defend themselves. Even then they lose the occasional case. Justice in this country goes to whoever can hire the best lawyers.
Am I cynical? Yep."
You and a lot of other people will be rereading bits of this opinion for years. It was written for law school textbooks as much as it was to dispose of this case.
First off, it was a Court of Appeals decision, not a trial court. Second, it was Frank Easterbrook, a very well known and somewhat regretfully, well-regarded senior judge. He is a big in the Law and Economics school of judges and other judges pay attention to his stuff. He doesn't cream the plaintiff on something mundane like standing or another procedural issue. Instead, he deals clearly with the most basic antitrust and GPL philosophy issues imaginable. And he gets it right.
Call bullshit.
There is something to see here and you are averting your eyes. The throttling scam works like this:
Assume the total amount of VOIP traffic that wants to move across a telco's network is some number. Let's call that number 11 (think Spinal Tap). Now, of that 11, 3 is VOIP traffic from the telco's own service. The remaining 8 is Vonage, Skype and all the rest. Rather than fuck with the rest directly (illegal), the telco throttles total available VOIP bandwidth to 10 but assigns preferential QOS headers to the 3 that it profits from. Vonage and company now have to share the remaining 7 even though they need 8. Their quality suffers and they shed customers to the telco's VOIP service. As long as the telco tweaks the throttle correctly, they can bleed Vonage without breaking the law as currently written.
Ulysses Grant graduated near last in his class at West Point. He performed well in the Mexican War as a junior officer but dropped out of the military in the 1854 for poor performance and then failed at several business ventures and became a drunk and a failure. Worked in the family in Galena Illinois until the Civil War came along and the army was so desperate for officers they would even give Sam Grant a second shot.
/ .
George McClellan was second in his class at West Point and was accurately judged to be a brilliant organizer. He built the Army of the Potomac. Unfortunately, once he had to use the army in combat, he choked. He was too hesitant. A pissed off Lincoln said McClellan had a case of the "slows" and asked if he wasn't using the army just then, would he mind if Lincoln borrowed it.
Grant by contrast remained a plodding tactician but never flinched under pressure. He did well in combat and rose to Colonel and then started picking up general's stars and eventually the Army of the Potomac. He never showed much flair but damn if he didn't grind the rebels down with relentless combat. Grant won ugly but he won.
Oh, and under pressure from Grant, the often overrated Lee choked too. Repeatedly. (See http://www.civilwarhome.com/coldharborsummary.htm
Dave Schroeder wrote:
/Unbiased Explanation
"Ok, fine, but what does running electoral-vote.com have to do with that? The question "Why Did You Do This?" implies that he is "do"ing something to influence people to vote in a particular way, which I simply don't see that website doing. In fact, other than the admittedly editorial sections of the site, I have found the site to be remarkedly unbiased."
Part of the answer is that the national polls are misleading. Bush has tended to lead the national polls by sometimes substantial margins. However, national polls are not entirely relevent because it is not a national election. The Electoral College vote turns on state by state elections. While Kerry has hardly ever led in the national polls, he has usually been tied or ahead in the Electoral College race. By concisely tracking the Electoral College race, Tanenbaum helps people cut through the wrongheaded perception that Bush has been winning because he led national polls. Part of the Bush strategary has been to portray the election as an inevitable, therefore resistance is futile.
OK, now for the flamebait. Red states tend to be very very red while Blue states are more mixed. Purplish even. Kerry can win by taking the Blue and Purple states with 51% even if Bush racks up 100% of the Republiklan votes in the deep red states. Bush finally wins the popular vote but is redefeated anyway.
See subject line.
Nice.
A well-executed little Goebbels-Orwell echo chamber you cite there.
Your source, Fox News, a Republican party house organ quotes a psuedo-science corporate-created astroturf group (Committee for a Constructive Tomorrow) attacking the PIRGs for being environmentalist.
CFACT, like Fox, is sponsored and staffed by wingnuts with a political agenda and corporations with an economic agenda. I have no problem with corporations having an economic agenda (they damn well better) but see no need to believe the silly claims they pay fake science groups like CFACT to tout. Bogus denials of global warming and attacks on environmentalists should bring back memories of the tobacco companies and their similar coin-operated cancer "research" scams.
Reality check: Cigarettes cause cancer, global warming is real, CFACT is a scam and Fox is propaganda.
OK, I hate spam as much as the next homicidally enraged Slashdot reading spamee. Habeas' business plan though is legally dubious at least with respect to copyright law. The trademark thing, though, just might fly.
The purpose of copyright law is to protect original works of expression. There are also built in limitations the most notable of which is fair use. There is no bright line definition of fair use but quoting a few lines of Haiku hardly seems unfair. The attempt by a private party to turn copyright law into a de facto anti-spam law is not likely to be upheld. Congress wrote a copyright law. Congress also wrote an anti-spam law. If Congress wanted to use copyright law to stop spam, it presumably could have figured out how to write such a law. It did not.
The trademark angle is more promising. The purpose of trademark law is to identify the source of goods in trade. Insofar as Habeas' goods are emails that it warrants are free of spam, it would be a trademark infringement for another company to identify the source of their spam as Habeas.
Ignore the conspiracy theory nutjobs blaming aliens for damaging the Japanese probe. There probably is something wrong (as in intentionally untrue) about this story but there is a simpler and more human explanation for it. If JAXA's version of events is correct, this is the third space vehicle they've had die recently because of solar flares. (See http://www.spacedaily.com/2003/031031090646.2kxsn
They lost Midori-2 and Kodama in October, both supposedly due to solar flares. According to a friend who works on the Midori program, they really don't know what went wrong. The power started fading and over the course of several hours, went from about 6Kw of power to 1Kw. If a solar flare killed Midori-2, the power should have dumped quickly. Despite not knowing why it died, they blamed solar flares. My guess is that flares got the blame because that way, it is nobody's fault. Given how unforthcoming JAXA has been about Nozumi, I would not take their explanation of Nozumi's problems at face value unless they also release credible data showing cause and effect.
You are asking the wrong question. The issue isn't goint to be whether a minor can assume a debt. That is a contract law question and the answer is usually no unless it is for necessities like food and housing. The legal question is going to be either whether a minor can be held liable for a tort or whether the parent can be held liable for not preventing the minor from committing a tort. It will be hard to hold a 12 year old directly liable for this so the family's lawyer (if they can afford one) should be able to get the case dismissed pretty easily unless RIAA amends the suit to allege the mother was negligent in supervising the child. The RIAA is plenty stupid but I don't think they are *that* stupid. My guess is RIAA's lawyers file a motion to dismiss this loser within a week.
It depends on what you mean by "user."
Almost everything else SCO has said is ridiculous but I'm not sure they are entirely wrong on this point (although it won't matter).
The Copyright Act grants the author or a work six exclusive rights;
1. to copy it
2. to distribute it
3. to adapt it
4. to perform it in public
5. to display it in public
6. to digitally distribute the work.
The fourth and fifth rights apply to things like music, movies, plays and works of art so aren't relevent here. But, if you are an end user and installed GNU/Linux from CDs then you created a copy on your computer's hard disk during the course of installation. If the Linux kernel has infringing code in it then a user who installs it in his or her code is an infringer. So far, there is no credible evidence that there is infringing code in the kernel.
If you merely use a computer that has the Linux kernel installed on it (and you didn't have anything to do with the installation), then it isn't possible to have infringed anyone's exclusive rights. If we suspend disbelief for a moment and posit that there is infringing code in Linux, that would make most companies that use Linux liable for infringement (if their IT staff rolled their own). However, a staff member like a secretary who merely uses Linux would not be an infringer. I assume that most self-respecting Slashdot-reading Linux users will have installed their own so they are potential infringers.
I'll add a caveat to that last paragraph. If you have recently installed SCO's version of Linux, you may well be an infringer. Their right to distribute the Linux kernel derives from the GPL. If SCO is violating the GPL by trying to assert proprietary rights over code they don't own, their legal basis for copying and distributing the kernel is forfeit. If SCO doesn't have the right to copy or distribute a kernel, then their ISVs and downstream users don't have the right to install their version of the kernel.
Maybe Linus should send a letter to SCO's channel partners and new users saying: "I believe that SCO Linux is, in material part, an unauthorized derivative of my Linux." And attach an invoice for $699 per CPU.
Technically, they can *start* a lawsuit without showing code. The initial complaint can be as little as a paragraph saying "They stole my code!" During the initial stages of litigation, they would have to introduce more evidence or the judge would eventually dismiss the case for failure to state a claim. To get scheduled for a trial they would have to show code. Unless they have a lot better evidence than what they showed at the SCOsource fiasco, they would get bounced in a heartbeat.
Also, Eben Moglen is right about the stupidity of Mark Heise's interpretation of the GPL as being preempted by the Copyright Act. (Heise is the lawyer representing SCO). If any lawyer were incompetent or malicious enough to waste a court's time with garbage like that they would likely get a stiff fine under Rule 11 of the Federal Rules of Civil Procedure. In layman's terms, Rule 11 is used by a judge to say "You have the nerve to bring that piece of shit argument into my courtroom?" It is hard to believe that Heise is really stupid enough to believe what he said so maybe he is just being deceptive. On the other hand, SCO has been repeating that reasoning in interviews with the press so maybe Heise and co. really are that dumb.
So take your pick--Heise is:
A. Dumb
B. Dishonest
C. All of the above
Let me add a couple of small facts to show why shooting out the window was excused.
I gaze out my window and spy a squirrel sitting in yonder tree. Being a sportsman of some renown, I decide to bag said squirrel and mount its head above the mantle here at Double Wide Manor. Double Wide Manor, I should mention, is located miles from my closest neighbor's trailer in an unincorporated section of the county of Bumfucknowhere and thus it is neither reckless nor illegal to discharge my firearm out said window. Alas, and totally unbeknownest to me, you have chosen this very moment to trespass upon my grounds and relieve yourself behind yonderer tree. On these facts, ignorance of your presence will excuse me from criminal liability for shooting you.
I think a EULA whereby a user of VC++ agreed to assign the copyright in code generated with the program might fly but there is a constitutional problem with a EULA that makes code generated by the program a derivative work. For something to be eligible for copyright protection, it has to be: an original work fixed in a medium of tangible expression. Leaving aside an, in, a and of, all the remaining words have highly specific meanings. If something is original, it has to have an author. Machines cannot be authors of original works because they aren't capable thinking (computing doesn't count as thinking). A derivative work will have at least two authors---the author of the original work and the author of the new work that adapts or transforms the original. Where is the original work that was adapted or transformed? The output of the code clearly has some originality but it isn't a new version of VC.
This isn't a contract law issue. Rather, it is a fundamental requirement of copyright law. I can make a contract with you whereby you agree to become a slave in exchange for me paying money to your parents. At a minimum, the agreement would be unenforceable because the (U.S.) government won't allow private parties to contract around the constitutional prohibition on slavery. The originality requirement in copyright law also stems from a constitutional requirement (Art. I, Sec. 8) and private parties cannot contract around the requirement. Because the VC++ program cannot be an author, works created with it cannot be derivative works.
At least in some states in the US, clickthrough licenses are considered valid as long as they don't contain unusual and/or outrageous terms. For a case arguing why they should be upheld, Google on ProCD, Inv. v. Zeidenberg. In that case, a Federal Appeals Court said that under Wisconsin law and the Uniform Commercial Code, shrinkwrap licenses are valid and also said pretty much the same thing about clickwrap licenses. As that case was specifically about shrinkwrap, you could dismiss the stuff about clickwrap as dicta and therefore not binding in any future case but courts seem to be following it. See e.g. Forrest v. Verizon Communications (D.C. Court of Appeals Aug 2002) and Moore v. Microsoft 741 NYS2d 91 (2d Dept. 2002).
Enforcing clickwraps may be bad policy and they may not always be enforceable, but that != "Just like all of them, it's not valid".
Infoworld's description of what the Supreme Court did not do is sloppy journalism. The Supreme Court didn't issue a decision in the case, it simply declined to hear it. Declining to hear a case has zero precedential value. In the 2001 term, the Court was asked to hear 7,924 cases and only heard arguments in 88 of them, resulting in signed opinions in a mere 76 cases. Those 76 are the only real decisions the Court made. The Infoworld story is probably accurate in it's prediction that software companies will probably be more aggressive in using EULAs to stop reverse engineering but the most that can be said is that the Supreme Court has neither endorsed nor prohibited what the U.S. Court of Appeals for the Federal Circuit did. The other Circuits are not bound by this decision.
Once Congress grants a right (as opposed to extending a privilege), it cannot arbitrarily revoke it. If Congress tried that, the courts would probably slap them down on both just compensation and due process grounds. To the extent that money is at stake, the rationale would probably be just compensation/takings but you could get at pretty much the same result with a due process argument. The way I read the Constitution and the Copyright Act, there is no obligation to grant rights in the future but the ones already granted would be difficult and expensive to revoke.
Yes, there are rights that cannot be alienated.
Authors of original works (unless the work in question is a 'work for hire') have certain rights that are not alienable. Under the law of some European countries and in the state of California, there are "moral rights" laws regarding the right to claim authorship and potentially a share in subsequent sales. The most important right under US copyright law that cannot be alienated is the right to reclaim the copyright that has been assigned. If, for example, you write a book and assign the copyright to someone else (usually for money), then at some point in the future you--or more likely your heirs--can reclaim the copyright by serving notice on the assignee. If you never serve notice, the assignee retains the copyright until it expires.
By the way, the same thing applies for people who write code that they release under the GPL and for which they assign the copyright to the Free Software Foundation. At some point in the future, you could get the copyright back. I'll have to check out my copyright textbook but I can't think of a reason why someone could not reclaim their copyright and then demand royalties for any GPLd software still using the code. I'm not sure it will matter in practice because the earliest any code could be reclaimed would be about 35 years from the date it was first fixed in a medium of tangible expression. So if RMS wrote his parts of the GCC in the mid-80s and if he should ever change his mind about free software, sometime around 2020 he could pull a SCO. Anyone know whether and why copyright law would prevent this?
The term "protected" is no better than "intellectual property." Privileged is more accurate. The holder of the privilege can exclude others from using the same expression so the holder is "protected" from competition but that obscures the nature of what is going on. Rights are protected, privileges are granted. Monopolies are granted to those priviliged enough to get them. It is right to grant some privilege to authors but we should be clear about what we are doing and why so that we do not grant too much. Macaulay says it best:
I should add a caveat. I am not against the existence of copyright, patents, trade marks and all the other things that go by the name of "intellectual property" but think that if we had a clearer and more honest term to refer to them, we would do a better job of defining them.
I don't think "intellectual controls" works well. "Intellectual property" is an intentionally dishonest term but only half the problem is with "property." Substitute your least favored pop culture expellers for my examples but I fail to see the "intellectual" property in the music of Britney Spears or a song like "I want to sex you up" by Five. If the assertion that much of what goes by the name of "intellectual property" is "property" is dishonest than the claim that it is "intellectual" is pretentious. Browse over to http://autopr0n.com and tell me if you think those copyrighted images are appealing to your intellect (they may be appealing but they are aimed at a different organ).
Stallman is mostly right when he rails against the conflation of copyright, patent and trademark law into "intellectual property." Right insofar as it is at best sloppy thinking to lump things together that are so dissimilar. Only partially right because the "intellectual property" field also includes things like publicity rights, right to privacy and moral rights. So if it isn't "intellectual property" or intellectual controls", what then? The most accurate term I can think of to cover most of this ground is "expression monopoly."
What copyright, patent and trademark have in common is that they all regulate who can use the expression of certain ideas. Copyright law assigns rights to who can make literal or derivative copies of a specific expression. Patents cover who can express an idea regardless of the the specific form. Trademarks are about who can use specific expressions in a commercial context.
The common denominator is the monopoly power granted by the government.* There are assertions in US law that patents aren't monopolies but it is safe to regard those claims as dishonest semantics (unless arguing before the dishonest judges who make the claims).
Even "expression monopoly" doesn't cover the ground perfectly. For example, moral rights have more to do with mandated expression rather than monopolized ones.
* For those (Americans) who insist on the "property" part of intellectual property, reread the copyright and trademark clause of the Constitution and tell us if there is any reason that Congress must grant authors a monopoly. I can see why the just compensation clause would prevent Congress from nullifying existing copyrights and patents but it would not be unconstitutional for the government could stop issuing new ones tomorrow. Unlike real property, "intellectual property" is a creation of the state and one which it is under no obligation to go on creating. When the government grants something that it is not obliged to, it is generally described as a privilege rather than a right.
To those who before me in this thread who reel off a list of things the FSF and EFF should be filing patents on, calm down and think for a minute.
Filing a single patent application costs thousands of dollars once you figure in the cost of the lawyer--if you can find one qualified to file a patent application. Lawyers qualified to practice patent law are few and far between. In order to become a patent attorney, you have to have a B.S. in Science and a large percentage (probably most) of people who opt for law school have a background in arts and crafts. The rare lawyer who meets this prerequisite can, after passing the regular bar exam try to pass the patent bar exam. Now, make an estimate of how many lawyers the FSF and EFF between them can afford and then decide how much of their time ought to be spent filing patent applications that they never intend to use for generating revenue. And god help them if they ever have to litigate a patent dispute. Expect to spend hundreds of thousands of dollars a pop if you get into an all out court fight over a patent.
If after considering these facts, do you still think FSF and EFF should be spending their scarce resources on anything besides lobbying to change the patent system? If you still believe they should be filing patent applications, how much are you willing to contribute to help them fund it?
This thread is not Slashdot at it's best.
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Some rant that Stallman should have spoken up against SCO a long time ago and some rant that he is injecting himself into it for the publicity (never mind that SCO was the first one to inject RMS into this by attributing a made up quote to him).
My understanding from Stallman is that he has stayed out of the SCO/IBM fight the advice of his counsel. Moglen has done most of the talking for FSF and since this is about a lawsuit after all, it is good advice and to Stallman's credit that he seems to have been taking it. To those who complain that his commentary is mostly a recycled FSF press release, it probably is (aside from his newsworthy denial of SCO's misquotation). But if I was his lawyer, I wouldn't want him saying much since SCO will try to twist whatever he says into an admission of guilt on behalf of all free software coders.
Stallman is repetitive and sometimes difficult in his insistence on the precise use of terms and in his adherence to the principles he holds. But leaving aside the value of his code contributions to free software, it was his muleheaded insistence on precision and principals that brought about the GPL in the first place.
I won't second guess people who dislike or even detest Stallman for his idiosyncrasies or because they do not share his beliefs. But if you believe that what SCO is doing is illegimate, at least have the honesty and/or decency to concede Stallman's foresight in keeping GNU clean of Unix code and in not giving SCO rhetorical ammunition through sloppy terminology. If you will remember, SCO was able to take Bruce Perens' quotes out of context to make him look like he advocated infringing copyright but for Stallman, they had to make up a quote (which they have now quietly deleted from their website without acknowledging its falsity). See http://www.caldera.com/scosource/quotes_from_lead