I dont' think I was ever caught by one of Bonzai's messages as I don't click on them reflexively. I hate it when Windows has error messages or, even worse, when it doesn't let me do something that I want to do and should be able to do. Thus, every time a Windows error message appears, I actually hesitate as I hate to click on the "OK" button because, to me, it isn't ok. I think I thusly caught all of the fake ones on websites.
If Windows error messages had an "Up yours, Microsoft" button, on the other hand, then I would probably click it reflexively.
That's funny. These days when I pick up my daughter from her school, I walk through these walkways plastered with papers drawn by the students. The papers depict scenes of sharing and have captions to the effect that friends always share. The school really seems to be drumming it into the children.
Maybe if they have another assignment, we can mention the RIAA...
In general,/. appears to be somewhat anti-patent biased.
Regarding perpetual motion, however, the US has a strict patent policy. According to federal statute, 35 USC 101, perpetual motion machines are explicitly unpatentable as inoperative.
The way things are going, I wouldn't think the government would need this executive order. After all, they've already been busy pulling back information already in the public domain.
I attended some of the talks given at the Open Standards/Open Source for National and Local eGovernment Programs conference going on presently at GW University, and one speaker did discuss the M$ FUD claim that the GPL is viral. I wasn't aware of the issues involved previously and so I'll reiterate them here for those that are interested.
Apparently, this stems from the use of the term "contains" in the GPL license (see paragraph 2b - GPL license). M$ claims that this term requires that a proprietary software residing on a medium along with a GPLed software becomes GPLed upon distribution of the medium, even if the two are independent. Thus the supposed viral nature of the GPL - that it infects everything it touches.
The speaker noted this is clearly not the intent of the GPL. While the speaker pointed out that no court cases have directly addressed this issue, he noted that legal commentators agree the GPL doesn't apply to proprietary software distributed with GPLed software so long as the two softwares are not integrated. Even if the two softwares dynamically link, the GPL will not "infect" the non-GPLed software.
I sincerely hope this succeeds. The one case I know of on point is ProCD v. Zeidenberg. Unfortunately, the judge in that case held the license enforceable as many transactions in our society have conditions on them which the buyer does not know about at the time of the transaction. Entertainment tickets, for example, were mentioned, IIRC (post-transaction conditions might include no taping at the event, etc.). Under the judge's view in that case, a EULA would likely be enforceable.
As with most people here, I don't agree with this assessment. I wish this group success.
As with many others, I feel this is great. I've just looked around the site, but didn't see anything regarding citations. I think the next level would be to have a bibliography for each article so that readers wishing to verify facts or to read further would know where to start.
I can't believe this hasn't been suggested before. I hope it is in the works.
Bear in mind that the Mickey Mouse Protection Act, excuse me, Sonny Bono Copyright Extension Act, actually brings US copyright terms in line with the EU.
This is what I have a problem with. Just because it is ok in the EU does not mean that it is ok in the US. The US constitution reads, in part:
The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (US Constitution, Article I, Section 8)
I have been meaning to research this. I just don't see how "securing for limited times to authors" can reasonably be translated to any time period measured from the death of the author.
By your example a toilet roll holder manufacturer could take action against anyone else making toilet roll.
At work I recently researched an issue involving the repair vs reconstruction doctrine governing patented items. I ran across a case which I kept because it was funny. A suit for infringement was brought by the owner of a toilet paper holder against a company who manufactured replacement toilet rolls. The case is Morgan Envelope Co. v. Albany Preforated Wrapping Paper Co., 152 US 425 (1984). The patent did cover the combination of the holder and roll. It went to the Supreme Court, but the patentee lost.
I've wondered about the use of the word piracy with copyright. I did a search on Lexis and found that the word piracy was used for copying literary works at least as far back as the 18th century. One early US case is Wheaton v. Peters, 33 U.S. 591 (1834) which references the following British case (1700s):
Miller v. Taylor, 4 Burr. 2307 (Lord Mansfield)
Is there any law student who has access to British cases who can get the text of this case? It would be fun to track down the original use of the term with copyright.
Moore v. Regents of University of California, 51 Cal. 3d 120 (CA Supreme Ct. 1990). (I know, bluebook format not followed)
This involved a guy who had some cells removed. He gave consent, but the doctors did not reveal to him their interest in the cells. Turns out that after research with his cells, they developed products worth millions, IIRC. The CA Supreme found for the university despite the doctors having violated a disclosure law.
"How about Ring Around the Rosie'?" another Elf asks. The directors veto it.
What a great article. I had to read it twice just to be sure it wasn't a joke. The quote in the parent is just too much.
But about the Ring Around the Rosie? Wasn't this composed by children during the Black Plague? The pocket full of posies was to overcome the stench of death. The "ashes ashes" was really "achoo achoo" - the sneezes just before death. The lyrics of a song that old must be in the public domain.
This opinion was not as in depth as I would like to see, but at least it's a start.
My first glance thoughts are that it needs a section to analyze the X-box EULA. While I expect that M$ can do nothing much if one modifies their X-box and uses it in their abode, the EULA could conceivable contain restrictions against modifying the box and profiting from it, such as by having it in an Internet cafe or whatnot. This would be similar to the situation in the ProCD v. Zeidenberg case which upheld a shrinkwrap license when Zeidenberg made the contents publically available. If the EULA did have such restrictions, then an action against the perpetrators would lie (i.e. would not be dismissed). I don't have an X-box, so maybe this analysis would be moot in view of the actual EULA.
I submitted this story some 3 or 4 weeks ago with a link to an actual USPTO proposal document.
Anyway, this is not something to get too excited about. Every time the USPTO thinks it needs money it makes these proposals. The complaints are always similar - too many claims, too difficult, yada yada yada. I even once ran across a newspaper story from the 1930s which complained of the same things (interestingly, back then, USPTO examiners were required to know a second language).
Actually, the inventor is the one who has the concept(s) which are new and novel in the invention.
If Bezos simply said "I want...." and had 100 IT people implement it over 6 months - so long as none of the implementers had to solve any problem that hadn't been solved before, then Bezos would be the only inventor.
On the other hand, even if the solution took 1 hour, if the implementer created something new as part of the implementation, he or she would be a co-inventor.
That is the state of the inventorship issue under current U.S. law.
To not reflect the inventorship accurately as above is fraud. Patents can and are lost for this kind of fraud.
You can simply strike out the clause about not sueing and initial by the strikeout. Then sign and turn in. Especially if they don't check it carefully, i.e. if you turn it in to someone who is not a lawyer, it may not be noticed. What you are doing is in effect making a counteroffer. If they give you the money, it amounts to acceptance and the deal is done. If they catch it - you're just back to where you are now.
Having been caught before by contracts which seemed benign when signed, I cannot recommend enough that you get paid legal help. If this bothers you (and I guess it does), pay whatever it costs to get it reviewed by a competent Canadian lawyer. In the chance that later you have reason to sue, you won't regret it.
I would be willing to help if I can and I hope others would too. Think if we could get a handful of patent practitioners willing to donate the time to draft applications and prosecute them (it would be better to have several so they can pinch hit for each other). The result would be that open sourcers would only have to foot the USPTO fees. These are not necessarily cheap - but as an individual you get half rate on most fees. For example, the small entity filing fee is currently $355.00.
I would hope that others would like to try this. For a reasonably simple invention, with good initial disclosure, the time to complete a patent application draft might be around 20 hours (I'm still learning). Imagine - supply the disclosure on Friday, get a draft for review on Monday.
In return there would have to be some sort of open source license on the patent services rendered - i.e. at least that the future patent owner would not use the patent against other open source producers.
I recall some posts about this on another site, I think it was Kuro5hin.org. Not sure, the older stuff search feature there is disabled at present. Several of the commenters decided on Belize. Apparently it has an immigration friendly policy - permanent residency or citizenship after 1 year residence. Also a wonderful climate. The problems are basically that it is a 3rd world country - i.e. no vibrant market for techie jobs.
I worked previously in the USPTO and examined software inventions before the USPTO officially admitted it gave patents for software.
I only saw one pro se (by one's self) application. The inventor had already gotten around 35 patents pro se. But... they were in the games field - like frisbees and such. He was really out of his water in our area. I had to object to his claims (problems in wording and format) and reject them (there was prior art). This case was especially sad because the guy was disabled and could not afford a telephone - I might have been able to help him if we had talked. He was also a bit insulting at times to the examiners (If you go pro se, I recommend you don't do this - it has an unofficial detrimental effect on patentability of your invention). The situation was complicated as another firm had a patent on the invention although this guy had likely invented it earlier. During the prosecution of the application, he sent in some copyright documents to prove that he invented it earlier. That was a bad move as the documents predated his patent application by over a year. I had no choice - I had to reject him over his own publications.
That said, if you can do it - it will save alot of money. Also, you will have the satisfaction of crafting your patent. However, no offense, but I gather from your post that you would be better off having some help. The many other posts mentioning the difficulty of the language, the strategy in the claims, the writing style, and so on are correct - it is an arcane profession which takes time (years) to learn satisfactorily.
Regarding the prices you quoted - $450 for a search and up to $6,000 for the application (finished and filed, I assume) - these seem on point, even rather low by the standards I am familiar with.
I would suggest you try and see the quality of the work of the lawyers you checked with - go to the USPTO full text patent search page and enter the query "lrep/xxx" where xxx is the attorney's firm name or personal name. You have to play around, especially with personal names. For example, if the attorney is named Joe P. Waller, the patent will list him as "Waller; Joe P." (with the ";"), but the "P" might be left out or he might use Joseph, etc. Find a patent or two and read them for technological competency, claim completeness, etc.
As a start, a search is good to ensure that your invention was not already patented. If your invention was already patented - then you will save alot of money and time which would be lost otherwise. Furthermore, you can learn to do your own searching. I worked for a searhing firm for a while. They took all kinds of people (with degrees, without degrees, etc.) and had them producing searches for paying clients by the second or third day. I did see alot of shenanigans going on - but you get the idea that searching isn't too difficult to pick up.
Somewhat offtopic - the USPTO has a large public search room in Crystal City, VA (near the pentagon, somewhat). If your work is such that you will be patenting things now and again, then the search room is worth a visit just to see it. It has 100s of feet of narrow (3') corridors lined on each side floor to ceiling with metal bins holding paper patent copies. It is a strange sight - and one which is soon to disapear as the USPTO is trying to destroy the paper copies and go completely electronic. I believe the EFF or ACLU has filed a suit against the USPTO asking for an injunction that the patents not be destroyed until the electronic search engine is working better.
I remember seeing something about open software patenting in old Slashdot posts - someone offered to provide services in searching and writing - maybe two or three years ago? I emailed the poster at the time and offered my services, but never heard back. I am curious whether Slashdot reading practitioners would be willing to help out. Too bad we couldn't have open source patent drafting - working together to protect open source inventions. But for reasons relating to competition and confidentiality, this wouldn't work.
Following is the text snippet from Bowers v. Baystate covering the shrinkwrap license:...
A
[12] Baystate contends that the Copyright Act preempts the prohibition of reverse engineering embodied in Mr. Bowers' shrink-wrap license agreements. Swayed by this argument, the district court considered Mr. Bowers' contract and copyright claims coextensive. The district court instructed the jury that "reverse engineering violates the license agreement only if Baystate's product that resulted from reverse engineering infringes Bowers' copyright because it copies protectable expression." Mr. Bowers lodged a timely objection to this instruction. This court holds that, under First Circuit law, the Copyright Act does not preempt or narrow the scope of Mr. Bowers' contract claim.
[13][14] Courts respect freedom of contract and do not lightly set aside freely-entered agreements. Beacon Hill Civic Ass'n v. Ristorante Toscano, 422 Mass. 318, 662 N.E.2d 1015, 1017 (Mass.1996). Nevertheless, at times, federal regulation may preempt private contract. Cf. Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 78 L.Ed. 940 (1934) ("Equally fundamental with the private right is [the right] of the public to regulate [the private right] in the common interest."). The Copyright Act provides that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright... are governed exclusively by this title." 17 U.S.C. 301(a) (2000). The First Circuit does not interpret this language to require preemption as long as "a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display." Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164, 32 USPQ2d 1385, 1397 (1st Cir.1994) (quotingGates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 847, 28 USPQ2d 1503, 1520 (10th Cir.1993)); see also Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) ("But if an 'extra element' is 'required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie "within the general scope of copyright," and there is no preemption.' ") (quoting 1 Nimmer on Copyright 1.01[B] at 1- 15). Nevertheless, "[n]ot every 'extra element' of a state law claim will establish a qualitative variance between the rights protected by federal copyright law and those protected by state law." Id.
In Data General, Data General alleged that Grumman misappropriated its trade secret software. 36 F.3d at 1155. Grumman obtained that software from Data General's customers and former employees who were bound by confidentiality agreements to refrain from disclosing the software. Id. at 1154-55. In defense, Grumman argued that the Copyright Act preempted Data General's trade secret claim. Id. at 1158, 1165. The First Circuit held that the Copyright Act did not preempt the state law trade secret claim. Id. at 1165. Beyond mere copying, that state law claim required proof of a trade secret and breach of a duty of confidentiality. Id. These additional elements of proof, according to the First Circuit, made the trade secret claim qualitatively different from a copyright claim. Id. In contrast, the First Circuit noted that claims might be preempted whose extra elements are illusory, being "mere label[s] attached to the same odious business conduct." Id. at 1165 (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535, 225 USPQ 776, 784 (S.D.N.Y.1985)). For example, the First Circuit observed that "a state law misappropriation claim will not escape preemption... simply because a plaintiff must prove that copying was not only unauthorized but also commercially immoral." Id.
The First Circuit has not addressed expressly whether the Copyright Act preempts a state law contract claim that restrains copying. This court perceives, however, that Data General's rationale would lead to a judgment that the Copyright Act does not preempt the state contract action in this case. Indeed, most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 39 USPQ2d 1161 (7th Cir.1996) (holding that a shrink-wrap license was not preempted by federal copyright law); Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457, 59 USPQ2d 1434, 1441-42 (6th Cir.2001) (holding a state law contract claim not preempted by federal copyright law); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 433, 26 USPQ2d 1370, 1376 (8th Cir.1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990); Acorn Structures v. Swantz, 846 F.2d 923, 926, 6 USPQ2d 1810, 1812 (4th Cir.1988); but see Lipscher v. LRP Publs., Inc., 266 F.3d 1305, 1312, 60 USPQ2d 1468, 1473 (11th Cir.2001).
In ProCD, for example, the court found that the mutual assent and consideration required by a contract claim render that claim qualitatively different from copyright infringement. 86 F.3d at 1454. Consistent with Data General's reliance on a contract element, the court in ProCD reasoned: "A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.' " Id. This court believes that the First Circuit would follow the reasoning of ProCD and the majority of other courts to consider this issue. This court, therefore, holds that the Copyright Act does not preempt Mr. Bowers' contract claims.
[15][16] This court now considers the scope of Mr. Bowers' contract protection. Without objection to the choice of law, the district court applied Massachusetts contract law. Accordingly, contract terms receive "the sense and meaning of the words which the parties have used; and if clear and free from ambiguity the words are to be taken and understood in their natural, usual and ordinary sense." Farber v. Mutual Life Ins. Co., 250 Mass. 250, 253, 145 N.E. 535 (Mass.1924); see also Kelly v. Marx, 428 Mass. 877, 881, 705 N.E.2d 1114 (Mass.1999) ("The proper course is to enforce contracts according to their plain meaning and not to undertake to be wiser than the parties.") (quoting Guerin v. Stacy, 175 Mass. 595, 597, 56 N.E. 892 (1900) (Holmes, C.J.)).
In this case, the contract unambiguously prohibits "reverse engineering." That term means ordinarily "to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version." Random House Unabridged Dictionary (1993); see also The Free On Line Dictionary of Computing (2001), at http://wombat.doc.ic.ac.uk/foldoc/foldoc.cgi?reverse+engineering (last visited Jul. 17, 2002). Thus, the contract in this case broadly prohibits any "reverse engineering" of the subject matter covered by the shrink-wrap agreement.
[17] The record amply supports the jury's finding of a breach of that agreement. As discussed above, the district court erred in instructing the jury that copyright law limited the scope of Mr. Bowers' contract protection. Notwithstanding that error, this court may affirm the jury's breach of contract verdict if substantial record evidence would permit a reasonable jury to find in favor of Mr. Bowers based on a correct understanding of the law. Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 69 (1st Cir.2001). The shrink-wrap agreements in this case are far broader than the protection afforded by copyright law. Even setting aside copyright violations, the record supports a finding of breach of the agreement between the parties. In view of the breadth of Mr. Bowers' contracts, this court perceives that substantial evidence supports the jury's breach of contract verdict relating to both the DOS and Windows versions of Draft-Pak.
The record indicates, for example, that Baystate scheduled two weeks in Draft- Pak's development schedule to analyze the Designer's Toolkit. Indeed, Robert Bean, Baystate's president and CEO, testified that Baystate generally analyzed competitor's products to duplicate their functionality.
The record also contains evidence of extensive and unusual similarities between Geodraft and the accused Draft-Pak--further evidence of reverse engineering. James Spencer, head of mechanical engineering and integration at the Space and Naval Warfare Systems Center, testified that he examined the relevant software programs to determine "the overall structure of the operating program" such as "how the operating programs actually executed the task of walking a user through creating a [GD & T] symbol." Mr. Spencer concluded: "In the process of taking the [ANSI Y14.5M] standard and breaking it down into its component parts to actually create a step-by-step process for a user using the software, both Geodraft and Draft-Pak [for DOS] use almost the identical process of breaking down that task into its individual pieces, and it's organized essentially identically." This evidence supports the jury's verdict of a contract breach based on reverse engineering.
Mr. Ford also testified that he had compared Geodraft and Draft-Pak. When asked to describe the Draft-Pak interface, Mr. Ford responded: "It looked like I was looking at my own program [i.e., Geodraft]." Both Mr. Spencer and Mr. Ford explained in detail similarities between Geodraft and the accused Draft- Pak. Those similarities included the interrelationships between program screens, the manner in which parameter selection causes program branching, and the manner in which the GD & T symbols are drawn.
Both witnesses also testified that those similarities extended beyond structure and design to include many idiosyncratic design choices and inadvertent design flaws. For example, both Geodraft and Draft-Pak offer "straightness tolerance" menu choices of "flat" and "cylindric," unusual in view of the use by ANSI Y14.5M of the terms "linear" and "circular," respectively. As another example, neither program requires the user to provide "angularity tolerance" secondary datum to create a feature control frame--a technical oversight that causes creation of an incomplete symbol. In sum, Mr. Spencer testified: "Based on my summary analysis of how the programs function, their errors from the standard and their similar nomenclatures reflecting nonstandard items, I would say that the Draft-Pak [for DOS] is a derivative copy of a Geodraft product."
Mr. Ford and others also demonstrated to the jury the operation of Geodraft and both the DOS and Windows versions of the accused Draft-Pak. Those software demonstrations undoubtedly conveyed information to the jury that the paper record on appeal cannot easily replicate. This court, therefore, is especially reluctant to substitute its judgment for that of the jury on the sufficiency and interpretation of that evidence. In any event, the record fully supports the jury's verdict that Baystate breached its contract with Mr. Bowers.
[18] Baystate does not contest the contract damages amount on appeal. Thus, this court sustains the district court's award of contract damages. Mr. Bowers, however, argues that the district court abused its discretion by dropping copyright damages from the combined damage award. To the contrary, this court perceives no abuse of discretion.
The shrink-wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers' software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying. Mr. Bowers' copyright and contract claims both rest on Baystate's copying of Mr. Bowers' software. Following the district court's instructions, the jury considered and awarded damages on each separately. This was entirely appropriate. The law is clear that the jury may award separate damages for each claim, "leaving it to the judge to make appropriate adjustments to avoid double recovery." Britton v. Maloney, 196 F.3d 24, 32 (1st Cir.1999) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 451 n. 3, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340, 346 (D.Mass.1993) ("So long as a plaintiff is not twice compensated for a single injury, a judgment may be comprised of elements drawn from separate... remedies."), aff'd in relevant part, 36 F.3d 1147 (1st Cir.1994). In this case, the breach of contract damages arose from the same copying and included the same lost sales that form the basis for the copyright damages. The district court, therefore, did not abuse its discretion by omitting from the final damage award the duplicative copyright damages. Because this court affirms the district court's omission of the copyright damages, this court need not reach the merits of Mr. Bowers' copyright infringement claim....
I live within 15 minutes walking to the pentagon and work in D.C. Overall, there hasn't been alot which has affected me overtly and in a major way, but there is alot which remains visibly changed.
After 9/11, we did have HumVees on every corner 24/7 for a few months. The soldiers seemed to be alert, but were ok to talk to. It is just beyond me what benefit they actually were, unless there would have been a land assult on the white house...
The trashcans and all other recepticles were taken out of the D.C. metro stations after 9/11. They are still gone. There seem to be more announcements reminding riders to take personal belongings when exiting.
For awhile normal citizens were unable to go nearer than a few blocks of the white house. For some reason that really angered me. It just felt really insulting. On the other hand, I didn't make a fuss, there was just this feeling that if one did, one would get in big trouble.
Some buildings in the area (D.C.) which used to allow people on the roof no longer do.
For awhile, all the buses which loaded at the Pentagon were switched to Pentagon City. Pentagon City isn't set up for so many buses, though, so that situation ended pretty quickly. I recently switched at the Pentagon, they now have earth dams between the bus area and the Pentagon. (I never switched at Pentagon before, so I don't know if these dams were there before, but the grass on them is new).
There are signs at the Pentagon which prohibit taking pictures. This actually strikes me as funny - of what value are external pictures for terrorism...?
The road beside the Pentagon, route 110?, does have HumVees and cars on it. The HumVees have machine guns pointed at the road. Funny to me again, is that they all have flashing blue lights, though. I guess their purpose is to be very visible.
Oh - and our local Pakistani restaurant (quite good) immeadiately after 9/11 got red, white, and blue takeout boxes.
On the other hand, I have had to walk home from work after the metro stopped twice since 9/11. My route goes right by the Pentagon, right next to the reconstruction area. I passed there in the wee hours of the morning - but both times, I really think no one paid any attention.
Overall, alot of changes, some minor, some not so minor, alot meaningless but still 1984ish.
As an intellectual property attorney in training, I work regularly with entertainment issues. My current view overall is that the balances struck in American Intellectual Property are off in some areas. (I suspect, however, that the current state of the law may look more reasonable to me after I graduate - I mean, the field affords good salaries.)
In thinking about the RIAA and its goals, I feel frustration - under the present administration and the current trend of most courts, there seems overwhelming support for backing the establishment over the multitudes, even to the rather obvious violation of established law.
For myself, I have found that perusing mp3.com for new bands often yields good results. I find quite a few songs available for free download by new bands looking to generate a following, and It appears there are a few which were created by music lovers in their homes which I found quite good.
My question is whether you think the masses could ever get the attention of the likes of the RIAA if we approached music in an open source / no copyright way? There are music programs which generate music based on fractals and such and computer-based synthesizers, sequencers, and so on which are freeware, etc. There was even an idea expressed on Slashdot to use genetic programming with feedback from Slashdot users to compose music.
If we could generate a culture in which enough people produced a song or two every so often in exchange for the availability of music from others in return, could this ever grow to a level to honestly get the attention of the RIAA? If we could, maybe they would realize they are not as indispensable as they think. My fear is that just too many people wouldn't bother to make this work.
Slashdot Mirror
If Windows error messages had an "Up yours, Microsoft" button, on the other hand, then I would probably click it reflexively.
That's funny. These days when I pick up my daughter from her school, I walk through these walkways plastered with papers drawn by the students. The papers depict scenes of sharing and have captions to the effect that friends always share. The school really seems to be drumming it into the children.
Maybe if they have another assignment, we can mention the RIAA ...
Regarding perpetual motion, however, the US has a strict patent policy. According to federal statute, 35 USC 101, perpetual motion machines are explicitly unpatentable as inoperative.
The way things are going, I wouldn't think the government would need this executive order. After all, they've already been busy pulling back information already in the public domain.
You can see his patents relating to ultrasonic speakers here
I attended some of the talks given at the Open Standards/Open Source for National and Local eGovernment Programs conference going on presently at GW University, and one speaker did discuss the M$ FUD claim that the GPL is viral. I wasn't aware of the issues involved previously and so I'll reiterate them here for those that are interested.
Apparently, this stems from the use of the term "contains" in the GPL license (see paragraph 2b - GPL license). M$ claims that this term requires that a proprietary software residing on a medium along with a GPLed software becomes GPLed upon distribution of the medium, even if the two are independent. Thus the supposed viral nature of the GPL - that it infects everything it touches.
The speaker noted this is clearly not the intent of the GPL. While the speaker pointed out that no court cases have directly addressed this issue, he noted that legal commentators agree the GPL doesn't apply to proprietary software distributed with GPLed software so long as the two softwares are not integrated. Even if the two softwares dynamically link, the GPL will not "infect" the non-GPLed software.
As with most people here, I don't agree with this assessment. I wish this group success.
I can't believe this hasn't been suggested before. I hope it is in the works.
This is what I have a problem with. Just because it is ok in the EU does not mean that it is ok in the US. The US constitution reads, in part:
The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (US Constitution, Article I, Section 8)
I have been meaning to research this. I just don't see how "securing for limited times to authors" can reasonably be translated to any time period measured from the death of the author.
At work I recently researched an issue involving the repair vs reconstruction doctrine governing patented items. I ran across a case which I kept because it was funny. A suit for infringement was brought by the owner of a toilet paper holder against a company who manufactured replacement toilet rolls. The case is Morgan Envelope Co. v. Albany Preforated Wrapping Paper Co., 152 US 425 (1984). The patent did cover the combination of the holder and roll. It went to the Supreme Court, but the patentee lost.
Miller v. Taylor, 4 Burr. 2307 (Lord Mansfield)
Is there any law student who has access to British cases who can get the text of this case? It would be fun to track down the original use of the term with copyright.
Moore v. Regents of University of California, 51 Cal. 3d 120 (CA Supreme Ct. 1990). (I know, bluebook format not followed)
This involved a guy who had some cells removed. He gave consent, but the doctors did not reveal to him their interest in the cells. Turns out that after research with his cells, they developed products worth millions, IIRC. The CA Supreme found for the university despite the doctors having violated a disclosure law.
This is sadly funny.
Did he mean that the US doesn't care about foreigners because it wants to protect the welfare of its citizens over foreigners?
Or did he mean that the US doesn't care about foreigners because it is more concerned with tracking and removing the privacy of its own citizens?
What a great article. I had to read it twice just to be sure it wasn't a joke. The quote in the parent is just too much.
But about the Ring Around the Rosie? Wasn't this composed by children during the Black Plague? The pocket full of posies was to overcome the stench of death. The "ashes ashes" was really "achoo achoo" - the sneezes just before death. The lyrics of a song that old must be in the public domain.
This opinion was not as in depth as I would like to see, but at least it's a start.
My first glance thoughts are that it needs a section to analyze the X-box EULA. While I expect that M$ can do nothing much if one modifies their X-box and uses it in their abode, the EULA could conceivable contain restrictions against modifying the box and profiting from it, such as by having it in an Internet cafe or whatnot. This would be similar to the situation in the ProCD v. Zeidenberg case which upheld a shrinkwrap license when Zeidenberg made the contents publically available. If the EULA did have such restrictions, then an action against the perpetrators would lie (i.e. would not be dismissed). I don't have an X-box, so maybe this analysis would be moot in view of the actual EULA.
I submitted this story some 3 or 4 weeks ago with a link to an actual USPTO proposal document.
Anyway, this is not something to get too excited about. Every time the USPTO thinks it needs money it makes these proposals. The complaints are always similar - too many claims, too difficult, yada yada yada. I even once ran across a newspaper story from the 1930s which complained of the same things (interestingly, back then, USPTO examiners were required to know a second language).
Actually, the inventor is the one who has the concept(s) which are new and novel in the invention.
...." and had 100 IT people implement it over 6 months - so long as none of the implementers had to solve any problem that hadn't been solved before, then Bezos would be the only inventor.
If Bezos simply said "I want
On the other hand, even if the solution took 1 hour, if the implementer created something new as part of the implementation, he or she would be a co-inventor.
That is the state of the inventorship issue under current U.S. law.
To not reflect the inventorship accurately as above is fraud. Patents can and are lost for this kind of fraud.
You can simply strike out the clause about not sueing and initial by the strikeout. Then sign and turn in. Especially if they don't check it carefully, i.e. if you turn it in to someone who is not a lawyer, it may not be noticed. What you are doing is in effect making a counteroffer. If they give you the money, it amounts to acceptance and the deal is done. If they catch it - you're just back to where you are now.
Having been caught before by contracts which seemed benign when signed, I cannot recommend enough that you get paid legal help. If this bothers you (and I guess it does), pay whatever it costs to get it reviewed by a competent Canadian lawyer. In the chance that later you have reason to sue, you won't regret it.
I would hope that others would like to try this. For a reasonably simple invention, with good initial disclosure, the time to complete a patent application draft might be around 20 hours (I'm still learning). Imagine - supply the disclosure on Friday, get a draft for review on Monday.
In return there would have to be some sort of open source license on the patent services rendered - i.e. at least that the future patent owner would not use the patent against other open source producers.
I recall some posts about this on another site, I think it was Kuro5hin.org. Not sure, the older stuff search feature there is disabled at present. Several of the commenters decided on Belize. Apparently it has an immigration friendly policy - permanent residency or citizenship after 1 year residence. Also a wonderful climate. The problems are basically that it is a 3rd world country - i.e. no vibrant market for techie jobs.
I worked previously in the USPTO and examined software inventions before the USPTO officially admitted it gave patents for software.
... they were in the games field - like frisbees and such. He was really out of his water in our area. I had to object to his claims (problems in wording and format) and reject them (there was prior art). This case was especially sad because the guy was disabled and could not afford a telephone - I might have been able to help him if we had talked. He was also a bit insulting at times to the examiners (If you go pro se, I recommend you don't do this - it has an unofficial detrimental effect on patentability of your invention). The situation was complicated as another firm had a patent on the invention although this guy had likely invented it earlier. During the prosecution of the application, he sent in some copyright documents to prove that he invented it earlier. That was a bad move as the documents predated his patent application by over a year. I had no choice - I had to reject him over his own publications.
I only saw one pro se (by one's self) application. The inventor had already gotten around 35 patents pro se. But
That said, if you can do it - it will save alot of money. Also, you will have the satisfaction of crafting your patent. However, no offense, but I gather from your post that you would be better off having some help. The many other posts mentioning the difficulty of the language, the strategy in the claims, the writing style, and so on are correct - it is an arcane profession which takes time (years) to learn satisfactorily.
Regarding the prices you quoted - $450 for a search and up to $6,000 for the application (finished and filed, I assume) - these seem on point, even rather low by the standards I am familiar with.
I would suggest you try and see the quality of the work of the lawyers you checked with - go to the USPTO full text patent search page and enter the query "lrep/xxx" where xxx is the attorney's firm name or personal name. You have to play around, especially with personal names. For example, if the attorney is named Joe P. Waller, the patent will list him as "Waller; Joe P." (with the ";"), but the "P" might be left out or he might use Joseph, etc. Find a patent or two and read them for technological competency, claim completeness, etc.
As a start, a search is good to ensure that your invention was not already patented. If your invention was already patented - then you will save alot of money and time which would be lost otherwise. Furthermore, you can learn to do your own searching. I worked for a searhing firm for a while. They took all kinds of people (with degrees, without degrees, etc.) and had them producing searches for paying clients by the second or third day. I did see alot of shenanigans going on - but you get the idea that searching isn't too difficult to pick up.
Somewhat offtopic - the USPTO has a large public search room in Crystal City, VA (near the pentagon, somewhat). If your work is such that you will be patenting things now and again, then the search room is worth a visit just to see it. It has 100s of feet of narrow (3') corridors lined on each side floor to ceiling with metal bins holding paper patent copies. It is a strange sight - and one which is soon to disapear as the USPTO is trying to destroy the paper copies and go completely electronic. I believe the EFF or ACLU has filed a suit against the USPTO asking for an injunction that the patents not be destroyed until the electronic search engine is working better.
I remember seeing something about open software patenting in old Slashdot posts - someone offered to provide services in searching and writing - maybe two or three years ago? I emailed the poster at the time and offered my services, but never heard back. I am curious whether Slashdot reading practitioners would be willing to help out. Too bad we couldn't have open source patent drafting - working together to protect open source inventions. But for reasons relating to competition and confidentiality, this wouldn't work.
Good luck, let us know what you decide.
Following is the text snippet from Bowers v. Baystate covering the shrinkwrap license: ...
... are governed exclusively by this title." 17 U.S.C. 301(a) (2000). The First Circuit does not interpret this language to require preemption as long as "a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display." Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164, 32 USPQ2d 1385, 1397 (1st Cir.1994) (quotingGates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 847, 28 USPQ2d 1503, 1520 (10th Cir.1993)); see also Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) ("But if an 'extra element' is 'required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie "within the general scope of copyright," and there is no preemption.' ") (quoting 1 Nimmer on Copyright 1.01[B] at 1- 15). Nevertheless, "[n]ot every 'extra element' of a state law claim will establish a qualitative variance between the rights protected by federal copyright law and those protected by state law." Id.
... simply because a plaintiff must prove that copying was not only unauthorized but also commercially immoral." Id.
/foldoc.cgi?reverse+engineering (last visited Jul. 17, 2002). Thus, the contract in this case broadly prohibits any "reverse engineering" of the subject matter covered by the shrink-wrap agreement.
... remedies."), aff'd in relevant part, 36 F.3d 1147 (1st Cir.1994). In this case, the breach of contract damages arose from the same copying and included the same lost sales that form the basis for the copyright damages. The district court, therefore, did not abuse its discretion by omitting from the final damage award the duplicative copyright damages. Because this court affirms the district court's omission of the copyright damages, this court need not reach the merits of Mr. Bowers' copyright infringement claim. ...
A
[12] Baystate contends that the Copyright Act preempts the prohibition of reverse engineering embodied in Mr. Bowers' shrink-wrap license agreements. Swayed by this argument, the district court considered Mr. Bowers' contract and copyright claims coextensive. The district court instructed the jury that "reverse engineering violates the license agreement only if Baystate's product that resulted from reverse engineering infringes Bowers' copyright because it copies protectable expression." Mr. Bowers lodged a timely objection to this instruction. This court holds that, under First Circuit law, the Copyright Act does not preempt or narrow the scope of Mr. Bowers' contract claim.
[13][14] Courts respect freedom of contract and do not lightly set aside freely-entered agreements. Beacon Hill Civic Ass'n v. Ristorante Toscano, 422 Mass. 318, 662 N.E.2d 1015, 1017 (Mass.1996). Nevertheless, at times, federal regulation may preempt private contract. Cf. Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 78 L.Ed. 940 (1934) ("Equally fundamental with the private right is [the right] of the public to regulate [the private right] in the common interest."). The Copyright Act provides that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright
In Data General, Data General alleged that Grumman misappropriated its trade secret software. 36 F.3d at 1155. Grumman obtained that software from Data General's customers and former employees who were bound by confidentiality agreements to refrain from disclosing the software. Id. at 1154-55. In defense, Grumman argued that the Copyright Act preempted Data General's trade secret claim. Id. at 1158, 1165. The First Circuit held that the Copyright Act did not preempt the state law trade secret claim. Id. at 1165. Beyond mere copying, that state law claim required proof of a trade secret and breach of a duty of confidentiality. Id. These additional elements of proof, according to the First Circuit, made the trade secret claim qualitatively different from a copyright claim. Id. In contrast, the First Circuit noted that claims might be preempted whose extra elements are illusory, being "mere label[s] attached to the same odious business conduct." Id. at 1165 (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535, 225 USPQ 776, 784 (S.D.N.Y.1985)). For example, the First Circuit observed that "a state law misappropriation claim will not escape preemption
The First Circuit has not addressed expressly whether the Copyright Act preempts a state law contract claim that restrains copying. This court perceives, however, that Data General's rationale would lead to a judgment that the Copyright Act does not preempt the state contract action in this case. Indeed, most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 39 USPQ2d 1161 (7th Cir.1996) (holding that a shrink-wrap license was not preempted by federal copyright law); Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457, 59 USPQ2d 1434, 1441-42 (6th Cir.2001) (holding a state law contract claim not preempted by federal copyright law); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 433, 26 USPQ2d 1370, 1376 (8th Cir.1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990); Acorn Structures v. Swantz, 846 F.2d 923, 926, 6 USPQ2d 1810, 1812 (4th Cir.1988); but see Lipscher v. LRP Publs., Inc., 266 F.3d 1305, 1312, 60 USPQ2d 1468, 1473 (11th Cir.2001).
In ProCD, for example, the court found that the mutual assent and consideration required by a contract claim render that claim qualitatively different from copyright infringement. 86 F.3d at 1454. Consistent with Data General's reliance on a contract element, the court in ProCD reasoned: "A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.' " Id. This court believes that the First Circuit would follow the reasoning of ProCD and the majority of other courts to consider this issue. This court, therefore, holds that the Copyright Act does not preempt Mr. Bowers' contract claims.
[15][16] This court now considers the scope of Mr. Bowers' contract protection. Without objection to the choice of law, the district court applied Massachusetts contract law. Accordingly, contract terms receive "the sense and meaning of the words which the parties have used; and if clear and free from ambiguity the words are to be taken and understood in their natural, usual and ordinary sense." Farber v. Mutual Life Ins. Co., 250 Mass. 250, 253, 145 N.E. 535 (Mass.1924); see also Kelly v. Marx, 428 Mass. 877, 881, 705 N.E.2d 1114 (Mass.1999) ("The proper course is to enforce contracts according to their plain meaning and not to undertake to be wiser than the parties.") (quoting Guerin v. Stacy, 175 Mass. 595, 597, 56 N.E. 892 (1900) (Holmes, C.J.)).
In this case, the contract unambiguously prohibits "reverse engineering." That term means ordinarily "to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version." Random House Unabridged Dictionary (1993); see also The Free On Line Dictionary of Computing (2001), at http://wombat.doc.ic.ac.uk/foldoc
[17] The record amply supports the jury's finding of a breach of that agreement. As discussed above, the district court erred in instructing the jury that copyright law limited the scope of Mr. Bowers' contract protection. Notwithstanding that error, this court may affirm the jury's breach of contract verdict if substantial record evidence would permit a reasonable jury to find in favor of Mr. Bowers based on a correct understanding of the law. Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 69 (1st Cir.2001). The shrink-wrap agreements in this case are far broader than the protection afforded by copyright law. Even setting aside copyright violations, the record supports a finding of breach of the agreement between the parties. In view of the breadth of Mr. Bowers' contracts, this court perceives that substantial evidence supports the jury's breach of contract verdict relating to both the DOS and Windows versions of Draft-Pak.
The record indicates, for example, that Baystate scheduled two weeks in Draft- Pak's development schedule to analyze the Designer's Toolkit. Indeed, Robert Bean, Baystate's president and CEO, testified that Baystate generally analyzed competitor's products to duplicate their functionality.
The record also contains evidence of extensive and unusual similarities between Geodraft and the accused Draft-Pak--further evidence of reverse engineering. James Spencer, head of mechanical engineering and integration at the Space and Naval Warfare Systems Center, testified that he examined the relevant software programs to determine "the overall structure of the operating program" such as "how the operating programs actually executed the task of walking a user through creating a [GD & T] symbol." Mr. Spencer concluded: "In the process of taking the [ANSI Y14.5M] standard and breaking it down into its component parts to actually create a step-by-step process for a user using the software, both Geodraft and Draft-Pak [for DOS] use almost the identical process of breaking down that task into its individual pieces, and it's organized essentially identically." This evidence supports the jury's verdict of a contract breach based on reverse engineering.
Mr. Ford also testified that he had compared Geodraft and Draft-Pak. When asked to describe the Draft-Pak interface, Mr. Ford responded: "It looked like I was looking at my own program [i.e., Geodraft]." Both Mr. Spencer and Mr. Ford explained in detail similarities between Geodraft and the accused Draft- Pak. Those similarities included the interrelationships between program screens, the manner in which parameter selection causes program branching, and the manner in which the GD & T symbols are drawn.
Both witnesses also testified that those similarities extended beyond structure and design to include many idiosyncratic design choices and inadvertent design flaws. For example, both Geodraft and Draft-Pak offer "straightness tolerance" menu choices of "flat" and "cylindric," unusual in view of the use by ANSI Y14.5M of the terms "linear" and "circular," respectively. As another example, neither program requires the user to provide "angularity tolerance" secondary datum to create a feature control frame--a technical oversight that causes creation of an incomplete symbol. In sum, Mr. Spencer testified: "Based on my summary analysis of how the programs function, their errors from the standard and their similar nomenclatures reflecting nonstandard items, I would say that the Draft-Pak [for DOS] is a derivative copy of a Geodraft product."
Mr. Ford and others also demonstrated to the jury the operation of Geodraft and both the DOS and Windows versions of the accused Draft-Pak. Those software demonstrations undoubtedly conveyed information to the jury that the paper record on appeal cannot easily replicate. This court, therefore, is especially reluctant to substitute its judgment for that of the jury on the sufficiency and interpretation of that evidence. In any event, the record fully supports the jury's verdict that Baystate breached its contract with Mr. Bowers.
[18] Baystate does not contest the contract damages amount on appeal. Thus, this court sustains the district court's award of contract damages. Mr. Bowers, however, argues that the district court abused its discretion by dropping copyright damages from the combined damage award. To the contrary, this court perceives no abuse of discretion.
The shrink-wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers' software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying. Mr. Bowers' copyright and contract claims both rest on Baystate's copying of Mr. Bowers' software. Following the district court's instructions, the jury considered and awarded damages on each separately. This was entirely appropriate. The law is clear that the jury may award separate damages for each claim, "leaving it to the judge to make appropriate adjustments to avoid double recovery." Britton v. Maloney, 196 F.3d 24, 32 (1st Cir.1999) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 451 n. 3, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340, 346 (D.Mass.1993) ("So long as a plaintiff is not twice compensated for a single injury, a judgment may be comprised of elements drawn from separate
I live within 15 minutes walking to the pentagon and work in D.C. Overall, there hasn't been alot which has affected me overtly and in a major way, but there is alot which remains visibly changed.
...?
After 9/11, we did have HumVees on every corner 24/7 for a few months. The soldiers seemed to be alert, but were ok to talk to. It is just beyond me what benefit they actually were, unless there would have been a land assult on the white house...
The trashcans and all other recepticles were taken out of the D.C. metro stations after 9/11. They are still gone. There seem to be more announcements reminding riders to take personal belongings when exiting.
For awhile normal citizens were unable to go nearer than a few blocks of the white house. For some reason that really angered me. It just felt really insulting. On the other hand, I didn't make a fuss, there was just this feeling that if one did, one would get in big trouble.
Some buildings in the area (D.C.) which used to allow people on the roof no longer do.
For awhile, all the buses which loaded at the Pentagon were switched to Pentagon City. Pentagon City isn't set up for so many buses, though, so that situation ended pretty quickly. I recently switched at the Pentagon, they now have earth dams between the bus area and the Pentagon. (I never switched at Pentagon before, so I don't know if these dams were there before, but the grass on them is new).
There are signs at the Pentagon which prohibit taking pictures. This actually strikes me as funny - of what value are external pictures for terrorism
The road beside the Pentagon, route 110?, does have HumVees and cars on it. The HumVees have machine guns pointed at the road. Funny to me again, is that they all have flashing blue lights, though. I guess their purpose is to be very visible.
Oh - and our local Pakistani restaurant (quite good) immeadiately after 9/11 got red, white, and blue takeout boxes.
On the other hand, I have had to walk home from work after the metro stopped twice since 9/11. My route goes right by the Pentagon, right next to the reconstruction area. I passed there in the wee hours of the morning - but both times, I really think no one paid any attention.
Overall, alot of changes, some minor, some not so minor, alot meaningless but still 1984ish.
$0.25*24*7*30=$1260.00...
Wouldn't it be $0.25*24*30=$180.00 per month? Still alot though. Cable modem is still much cheaper.
As an intellectual property attorney in training, I work regularly with entertainment issues. My current view overall is that the balances struck in American Intellectual Property are off in some areas. (I suspect, however, that the current state of the law may look more reasonable to me after I graduate - I mean, the field affords good salaries.)
In thinking about the RIAA and its goals, I feel frustration - under the present administration and the current trend of most courts, there seems overwhelming support for backing the establishment over the multitudes, even to the rather obvious violation of established law.
For myself, I have found that perusing mp3.com for new bands often yields good results. I find quite a few songs available for free download by new bands looking to generate a following, and It appears there are a few which were created by music lovers in their homes which I found quite good.
My question is whether you think the masses could ever get the attention of the likes of the RIAA if we approached music in an open source / no copyright way? There are music programs which generate music based on fractals and such and computer-based synthesizers, sequencers, and so on which are freeware, etc. There was even an idea expressed on Slashdot to use genetic programming with feedback from Slashdot users to compose music.
If we could generate a culture in which enough people produced a song or two every so often in exchange for the availability of music from others in return, could this ever grow to a level to honestly get the attention of the RIAA? If we could, maybe they would realize they are not as indispensable as they think. My fear is that just too many people wouldn't bother to make this work.