When I was a kid, my mom taught me that if I don't recognize the face when I look out the door peephole, don't unlock the door.
I'm pretty sure your mom didn't teach you to provide a prompt to the person at the door who could then answer yes, and you'd let them in. Sometimes it helps to actually follow the link in the article and read the claims, rather than just immediately crying "I have prior art" based on the title.
Actually, I made my claim based on the abstract:
Ah, gotcha. The abstract has no legal weight. It's just there to make quick searches of patents easier. You have to look at the claims which require that prompting step.
When I was a kid, my mom taught me that if I don't recognize the face when I look out the door peephole, don't unlock the door.
I'm pretty sure your mom didn't teach you to provide a prompt to the person at the door who could then answer yes, and you'd let them in. Sometimes it helps to actually follow the link in the article and read the claims, rather than just immediately crying "I have prior art" based on the title.
First, it's already been the law that you can infringe a patent even if you didn't do all the steps, provided you either (1) partnered with someone else and split the steps between you, performing all of them as a team; or (2) induced or encouraged someone else to perform all the steps.
Second, this is just refining inducement, no. 2 above: if you encourage someone to perform one or more of the steps, and you perform the rest, you're infringing the patent, even if you're not explicitly acting as partners. This makes sense for many reasons, not the least of which being that it closes the above loophole in which you induce someone else to infringe and perform the first step for them, suddenly making it non-infringing under the old law.
The situation you describe would certainly be criminal infringement as it is performed on a commercial scale. No civil lawsuit would be necessary or sensible in such a case.
So, say I'm Apple... I should be able to hire some unemployed guy under the table to copy and distribute Windows 8 for free, and if Microsoft gets upset, tough luck: that guy can go to jail and serve his year (and get a nice million dollar "gift" from me) and no civil lawsuit is necessary or sensible?
Nobody is truly arguing that breaking copyright is ok. What people have a problem with at this point are two things.
1) The level of damages should not exceed 10 times the value of the product/song
The value of a distribution license is somewhere between $20k and $200k per song, based on, for example, what Michael Jackson paid for the Beatles' catalog. So people shouldn't really have a problem with this unless they hadn't realized that he was uploading the songs too and not just leeching.
2) The charges should not be able to be brought until it can be proved that the person being sued actually commited the crime
People really shouldn't have a problem there... Tenenbaum confessed to sharing them. In court, under oath, while being questioned about it. I think that's pretty good proof.
Having now read the opinion, here's how the judge came out:
1. The jury found this guy guilty of infringement.
2. The guy had 8 years of known infringing activities
3. The guy destroyed evidence
4. The guy lied repeatedly
5. It wasn't just a matter of him downloading songs, he was uploading them too
6. The jury got to see all the evidence
7. Congress set the bounds for copyright infringement's statutory damages
8. The jury pick something on the arguably low end of the range
9. When looking at the common law rules the judge did not feel the case was inequitable under the circumstances.
I would wager good money that had 2-5 been different, the judge WOULD have found the award inequitable.
That said, I have some questions about why 2 and 5 were even in evidence at all. They seem irrelevant to copyright infringement of the songs at issue here. I haven't kept pace with this case, but I should think those are irrelevant unless they were themselves proved to be infringements.
Also, it helps not to destroy evidence or lie.
Good analysis. To answer the questions about 2 and 5, one of the rights under copyright is "distribution" - i.e. uploading. It's really the more important one - if you download a single copy of a song and never share it, then you actually have a really good idea as to why.99 cents is a good number for damages. If you're distributing them, then you're acting like, say, Apple with the iTunes Music Store, and now you're talking about licenses, royalties, guaranteed minimums, etc. That's where the $750-150000 damage amounts come into play.
Here, the complaint in this one was that Tenenbaum was distributing or uploading the songs, so #5 is in play.
#2 is a separate issue... The question there was whether he was intentionally sharing music. Maybe he's a moron who got this "free music" application from his friend and he had no idea how it worked and is flabbergasted to find that he was actually uploading music to other people and how can you possibly find him responsible when he doesn't know anything about computers?!... except that he's been doing it for 8 years and even wrote a paper about it. So, the "gosh, I had no idea" defense is off the table.
I'm not sure how they can say you owe $675,000 for stealing roughly $30 worth of products.
Say you wanted to set up a music sales site... like, say you're Apple, and you wanted to set up the iTunes Music Store. Do you think you could offer the record companies 30 bucks for a perpetual, royalty free license? Like, "here's 30 bucks, I'mma gonna go distribute a million copies of Carly Rae Jepsen"?
This case isn't about downloading a single copy... this case was about uploading and distributing potentially thousands upon thousands of copies.
We're blaming the judge for not upholding the law. Specifically, that part of the law which states that "Excessive bail shall not be required, nor excessive fines imposed".
Since we're clearly not talking about bail, where exactly is the "excessive fine"? Fines, y'know, are paid to the government. This was compensatory damages in line with statutory guidelines, and the 8th Amendment doesn't say anything about not imposing excessive damage awards.
It seems you've weakened your argument by pointing out yet another type of legal protection distinct from patents, trademarks and copyright that seems to overlap with them significantly.
Not at all. As your linked Wiki notes, trade dress is covered by the Lanham Act, which is the Federal trademark act. Trade dress is similar to a trademark, except that the trade dress covers distinct look and feel as opposed to a specific symbol, word, or logo. For example, ever notice how every McDonald's looks the same? That's distinctive trade dress. You can't build a restaurant called "Burger Palace" and use that specific set of arched windows, brick exteriors, mustard yellow seating, etc., etc., that would lead someone to glance at it and say "Hey, look, a McDonald's."
AFAIK, Apple isn't even bringing up trade dress in these lawsuits. I had never heard the term before and I'd guess the vast majority of non-lawyers have not heard it either so it could easily be used as an example of how far legal protection for products has diverged from everyday life and common sense.
Simply because you've never heard of something and didn't bother reading the wiki you linked to about it doesn't mean it doesn't exist. There are more things in Heaven and Earth, Jonner, than are dreamt of in your philosophy. For example and contrary to as far as you knew, Apple's complaint expressly mentioned trade dress infringement:
As alleged below in detail, Samsung has made its Galaxy
phones and computer tablet work and look like Apple’s products through widespread patent and
trade dress infringement. Samsung has even misappropriated Apple’s distinctive product
packaging.
And I should point out that, in cases of rape or sexual assault, physical evidence is frequently discounted too: many people make the argument that the grabbed-woman-in-a-park was actually really consenting to public anonymous sex, as evidenced by her clothing, or her being in that area at night, etc., etc.
Nobody credible does this, and asserting that this is true weakens the rest of your argument.
Using a No True Scotsman fallacy to argue that someone else is making an unsupported assertion somewhat undermines your credibility.
I did not say that the woman was getting manicures. I said that the woman was abusing the money, but doing everything possible to be aboveboard.
Eg, buying adidas, instead of ozark trail, or some similarly generic store brand. Or, buying tommy hilfiger jeans instead of rustler, and putting those purchases down as "shoes and jeans."
Addidas cost over 70$. Ozark trail rarely costs over 40. Tommy hilfiger jeans can easily cost over 100$. Each. Rustler rarely costs more than 30$.
I was addressing the situation presented whe the man has custody, and buys the more fiscally responsible option, vs the situation where the woman uses the money unwisely on purpose, distorts her purchases on the accounting, and does this to "stick it" to the man.
Ah, gotcha. If you're complaining that your child is wearing designer clothes rather than store brand, then you may have a legitimate complaint, or you may be full of shiat. The court is going to consider whether, if you were still together and/or had custody of the kid, whether the kid would be in the designer clothes or store-bought ones. If the latter, then it's you being unreasonable, not the custodial parent. You don't get to force your kid into a poverty-level existence merely by not being the custodian. The kid is still entitled to the same level of care and support they would get if you were together.
That said, if it's true that you would have been buying the kid store-brand stuff - i.e. if you make $30k per year, or if you're the custodial parent of another kid who is only wearing store-brand stuff - then you can certainly go back to the court with the receipts to argue that spending $20k per year on the kid is unreasonable. Failure to do so doesn't mean the courts are biased against you, though.
But if you're just trying to make the argument that even though you earn $100k per year, you would only spend $10k on your kid, a court isn't going to look kindly on that.
However, the institutional convention of "woman wins by default" leads to a considerable amount of disharmony, and stress that could be mitigated with more sensible awards of custody.
Again, if you're serious about this, then work more with NOW and other feminist organizations. Courts award custody the way they do because of such societal presumptions, because of unequal pay, and because of (frequently unpaid) maternity leave and the lack of paternity leave. Fix those problems such that both parents are economically equal, and the custody decisions will follow. The law is already neutral, so you just need to change the factual factors underlying the judicial decisions.
I was referring more toward the phenomenon where the mother uses the support money in less than frugal manners.
Yes, and I addressed that:
With regard to your other legitimate-but-unrelated complaint about how support is being utilized, that has nothing to do with whether support is required or whether it's punitive. That said, it's the right of every custodial parent to get an accounting of what the support is spent on, and you can go to the court with that accounting and use it to modify the amount of support or to gain custody. For example, if you pay support each month and the custodial parent uses it to buy alcohol, or shoes, or golf clubs, or whatnot, and is not taking care of the kid, then that's just about the strongest argument you can make for obtaining custody, short of the other parent being in jail.
Please at least pretend to read my well thought-out responses.
Rape is rather different though in that in the difficult cases both victim and perpetrator are of similar socio-economic backgrounds, and it is easy to imagine a situation in which consent would be given whether it was or not.
Quoth Mr. B. Joel, "You know I've seen her in her uptown world, she's getting tired of her high class toys, and all her presents from her uptown boys. She's got a choice."
In cases of fraud it is far more likely that the incident under dispute is the only conceivable reason that the two parties came together. Similarly in robbery. Similarly in cases where rape is easier to prove.
I'm not sure what you're trying to say. The occurrence of the incident is not in question, rather it's a question of consent. Whether two people come together for a business contract or an orgasm is irrelevant if they both agree to those facts, but disagree as to whether there was consent.
You do run into similar difficulties when fraud is committed by one friend against another - they both come off as similarly credible. It's just that you run into it a lot more often with rape charges since so many are committed by an acquaintance or someone in a similar social circle. It's not that the victim is less credible, it's that both victim and perpetrator come off as equally credible, making the case extraordinarily difficult to prosecute because who do you believe?
If the victim and perpetrator are equally credible, then you won't be able to convince a jury that the perpetrator is guilty beyond a reasonable doubt. This doesn't mean that the victim is lying, as the GP post suggested. It's merely that 50-50 isn't enough to convict. The problem here, you see, is that some people turn an acquittal or a DA declining to bring charges for this reason into a guilty verdict convicting the victim of perjury, making a false report, defamation, etc. In other words, a false dichotomy where in person A isn't found guilty under the high burden of proof of "beyond a reasonable doubt", then person B must be guilty under the inverse burden of proof of "any reasonable possibility".
I would gladly concede this, if the fallacy that women make superior parents was not routinely applied in such paternity and custody proceedings.
Though true, that has nothing to do with what we're talking about. Additionally, the laws are being fixed, state by state, to remedy that fallacy. And you know who's behind those fixes? Feminists. Because the fallacy rests upon the presumption that women don't have careers and that men can't be stay at home parents. Things like the Fair Pay Act and mandatory paternal leave are things that will significantly undermine those presumptions and fix that fallacy.
That said:
I believe that if the man desires the child, he should have equal opportunity to be awarded custody. This is not conserved in practice, thus in practice, child support is usually punitive.
Those are different things. Support is not punitive, because support is an obligation that arises solely due to the child's existence, and is required of both parents. If custody went the other way and the man was the custodial parent, don't you think he'd still have to pay rent, buy food, take care of the kid, etc.? It's not like the custodial parent doesn't have to lift a finger, and the non-custodial parent has to pay for both of them.
With regard to your other legitimate-but-unrelated complaint about how support is being utilized, that has nothing to do with whether support is required or whether it's punitive. That said, it's the right of every custodial parent to get an accounting of what the support is spent on, and you can go to the court with that accounting and use it to modify the amount of support or to gain custody. For example, if you pay support each month and the custodial parent uses it to buy alcohol, or shoes, or golf clubs, or whatnot, and is not taking care of the kid, then that's just about the strongest argument you can make for obtaining custody, short of the other parent being in jail.
I agree for the most part, but the world is not black and white. Here's a little hypothetical thought experiment:
A teenage man (say, 19, so above majority age) goes to a party, which involves alcohol. He gets drunk enough to become sufficiently intoxicated to black out the evening. He wakes up in his bed at home, after being dropped off by friends. 3 months later, a girl who was at the party claims a paternity suit against him for her now 3rd month pregnancy, the test shows positive. he does not remember giving consent, and does not remember the woman at all.
Now, Flipside.
A teenage woman, (Say, 19, so above the age of majority), goes to a party which involves alcohol. She gets drunk enough to be sufficiently intoxicated to black out the evening. She wakes up at home in her bed after being dropped off by friends. She has semen stains in her panties. She does not remember giving consent, and promptly makes use of a female hotline to report her "rape."
These situations are essentially identical, however the female's view holds more gravity than does the male's.
Yes, because of one distinction in the situations - she reported a crime and he didn't. I'm not sure why you're suggesting that men shouldn't be able to report being victims of rape, but it may be that you're falling into the cultural bias you mention later. The law has no such bias.
I would say it is because of cultural bias, and double standards; women are percieved as more vulnerable, (when both are equally vulnerable to alcohol and other drugs), and thus requiring the stronger protections. Men are conversely considered to be "stronger", and being raped in this way is even culturally approved of in a disturbingly sick fashion.
It probably has more to do with the 9 months of pregnancy and labor that a female victim may have to go through that a male victim doesn't.
I really do believe that it is possible to have a no-fault rape case. Both participants get smashed and fuck like rabbits while out of their minds, and assert they would never have consented to the sex while sober. How does the law react to such a circumstance? Does it punish both victims for their over-indulgences? Who pays child support?
See the problem?
Yes, I do - you're thinking that "child support" is "a punishment for over-indulgences". That's a huge problem. Child support is the right of a child to support by its parents or a willing assignee (i.e. foster parents, adoptive parents, the state, etc.). The parents may have done nothing wrong - or may have done everything wrong - and it's irrelevant, because the sole question is "is there a child" and if so, it's entitled to support. Absent such an assignment, the parents don't have any ability to waive that obligation. Fair? No, but as a society, we've decided that it's better that parents should take care of their children than that children should be left to starve. It's not "punishment" for the parents, but a fiduciary obligation.
Akin's comments were tasteless and ignorant of current knowledge/data, but since no one else is coming to his defense, I will.
There are two aspects of his comments to which people take offense. To get the first out of the way quickly, "legitimate rape", the 2004 Maryland case of "delayed withdrawal of consent" is an example of "rape" that is not "legitimate".
Why exactly is that not "legitimate"? As Maryland's Court of Appeals ruled in that very case, "The crime of first-degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration."
If a woman tells you to stop, and knowing that she does not consent, you disregard her lack of consent and continue having sex with her, that sure does sound like "legitimate" rape. People bring up this case in an attempt to argue that a woman could say no during sex and a millisecond later, you're a rapist. You're not. It doesn't work that way. The crime of rape, as with all crimes, requires intent. You must intentionally continue farking while knowing you don't have consent. If you reasonably believed you had consent - like you would in that millisecond, and probably for several seconds before the words travel to your brain - then you're not committing rape.
Here's an analogy... Say you're kickboxing or doing MMA with someone. You punch them several times, but they've consented to the match and it's therefore not battery. At some point, they go down and you dive on them to get in several more punches. Are you committing battery? Nope, match isn't over, you still reasonably believe you have consent.
The ref shouts stop and starts pulling you off, while you get in one more punch. Is it battery now? You don't have consent and the match is over... but it's only been a second, and so you reasonably still believe you have consent.
Then, you do a bit of mugging for the crowd and cheering your victory while the ref fans the guy back into consciousness. People are applauding and your trainer is starting to enter the ring... and then you turn around and kick the guy in the head. Battery? Oh, hells yeah. Even "legitimate" battery.
In other words, consent can certainly be withdrawn. When your actions become criminal is not that instant, but when you reasonably recognize that consent has been withdrawn... and then still act. Intentionally continuing to fark someone after they've said "no, stop," and you recognize that they've withdrawn consent is "legitimate" rape.
This breaks down to a degree for rape. By its nature it is infrequently observed by witnesses. This judicial system requires proof beyond a reasonable doubt that (a) a specific event happened (what event depends slightly on your jurisdiction) and (b) one of the parties involved did not consent to it.
Some cases are straight-forward. When a man grabs a woman in a park and rapes her behind a wall, it's pretty clear that consent was not given. Then you only need to prove that the event happened, and you have a case. The event is usually pretty easy to prove - it leaves physical evidence.
But in many other cases, consent is not straightforward. When two drunk teens are fooling around and things go too far, or (in many jurisdictions) when consent is withdrawn during intercourse... then it inevitably descends in to a mess of he-said she-said.
Not just rape, though, or rather, by singling out rape, you're suggesting that victims of rape are inherently less credible than victims of other crimes. Do you believe this?
For example, fraud is a case of he-said, she-said where a victim claims they were fooled and the defendant claims the "victim" had all the facts on hand.
Or for example, robbery is a case of he-said, she said where a victim claims they were held up and the defendant claims the "victim" gave them a gift.
In other words, other than the violent ones that leave physical evidence, the majority of crimes fall down to victim testimony vs. defendant testimony, or he-said, she-said. Yet, it's only rape or sexual assault where we think that's not enough, hence even the name "he-said, she-said."
And I should point out that, in cases of rape or sexual assault, physical evidence is frequently discounted too: many people make the argument that the grabbed-woman-in-a-park was actually really consenting to public anonymous sex, as evidenced by her clothing, or her being in that area at night, etc., etc. Or, for example, that the maid allegedly raped by Strauss-Kahn was really giving him a consensual beej, and she was just so into it that she tore her rotator cuff (perhaps she was really into BDSM and consenting to have her arm held behind her back?).
In fact, even where facts are not in dispute, people will still modify them in cases of sexual assault to minimize the criminality. For example:
or, indeed when Julian Assange goes to bed with someone at night and decides he'd like a bit more the next morning, then it inevitably descends in to a mess of he-said she-said.
He said he wanted a bit more and slipped it in before she woke up. She said the same thing. There's no he-said, she-said there. Rather, it's about whether his belief that he had her consent was reasonable in view of her previous denial.
We could change this. The law could be changed so that women making a complaint of rape are believed by default. But that is placing the prevention of rape above the priority of protecting the innocent. Do you really believe that this would never be used to persecute the innocent? This would mean that some innocent people go to prison and spend their lives on a sex offenders register because their partners found a cruel way to get back at them.
On the contrary, you're suggesting that women making a complaint of rape shouldn't be believe by default. In other words, you're saying that these women are guilty of making a false report unless they prove themselves to be innocent. I'm going to suggest that you hadn't fully thought through the implications of your statement.
While patents and copyrights are usually quite distinct, they overlap significantly in this case. Specifically, design patents are not obviously different from copyrights to non-lawyers.
Not sure why, though. Design patents are not very different from trade dress. Copyright, however, is entirely different.
Your example is badly flawed. "Drinkbox Studios" is surely trade markable, as is their logo, because drinking has nothing per se to do with boxes or video games and a logo is, in any case, a trade mark.
I didn't say that it would never be registrable. Rather, what I said was that you'd have a tough time because the consuming public doesn't know who you are. If EA spun off a subsidiary with the same name, their marketing budget would dwarf yours and very quickly, the public would recognize "Drinkbox" as part of EA. Remember, in trademark and trade dress, until a mark is incontestible and has been on the principal register for three years, your ownership can be challenged by others who have obtained wider recognition by using the mark.
Before you call someone's argument flawed, make sure you're addressing their argument rather than a strawman that you've built.
Trade mark is a stronger protection than a "design patent" (in Europe a Design Registration).
Not at all. Trademarks last longer than design patents, but they are surely not stronger. For example, I can use the Coca-Cola mark right here, as I just did, because it's not a use in commerce. And I could even sell my own soda and say "tastes like Coca-Cola, but for half the price!" or whatnot, as that's covered under fair use. But I can't use a patented symbol or design, as there is no fair use argument there.
trade dress exists explicitly to prevent design elements from being appropriated to such a degree that the public is confused. Apple has invested a lot of money in design, and creating a very particular sense of cool in their products. and they should be allowed to profit from that investment... by selling their products. And if people were buying samsung phones or tablets thinking they were iphones or ipads, that would be one thing, but i have trouble believing a reasonable person would make that mistake.
Ah, but people do make that mistake. Samsung's lawyers famously made that mistake when they couldn't tell apart the Galaxy Tab and an iPad, and during this trial, there have been documents identifying people returning Galaxy Tabs that they thought were iPads during their initial purpose. Now, I will concede that (a) those people may be morons, and (b) it's probably not a statistically huge amount, but nonetheless, the confusion is real.
Additionally, trade dress and design patents are a lot alike, as you note, covering the aesthetic or ornamental features of something, but with one very important distinction:
Design patents must be new and nonobvious, but that's it.
Trade dress must be distinct and recognizable as identifying the source of a product, but that's it.
In other words, you can get trade dress protection over the color pink, if you're Corning and make insulation, because while "pink" is neither new nor nonobvious, it is immediately recognizable as associated with their rolls of insulation.
Conversely, if you're a small and new video game developer - say, Drinkbox Studios - you probably can't get trade dress protection because the consuming public doesn't recognize you. Hell, most of them probably haven't even heard of you. So if a big developer like EA wanted to spin off their "Drinkbox Games" division, you wouldn't have much recourse. But you could get a design patent on your new, nonobvious logo.
So, basically, yes, they overlap, but trade dress protects well established brands (and is part of the reason why it lasts forever), while design patents don't care about establishment and merely protect new and nonobvious designs (which is part of the reason why they only last 14 years). Design patents therefore protect smaller companies and individuals, and abolishing them would let big companies simply copy their style.
If you go back to the mid-1990s, there was their famous "look and feel" lawsuit against Microsoft. Apple's case there was eerily similar to the one they're running today: "we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it's impossible for us to keep innovating." Apple ended up losing the case.
... I've used Apple as the example here because it's illustrative in showing how innovation hasn't been stifled over time even when the patent system hasn't ruled in their favor as a patent owner.
The Apple v. Microsoft case was on copyright, not patents. Specifically, the court ruled that:
Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]...
and look-and-feel simply isn't covered there.
With that distinction and proper categorization in mind, the article misses a crucial difference between the 1990s and today: Apple made a significant push to protecting its designs with patents. The lack of such protection almost killed Apple in the 1990s, and its with that protection now that Apple is well on its way to being the largest company ever.
Would you confuse Wesley's PAD with an iPad? Like, if they were sitting on two tables in a room, you wouldn't know which one is which and would have to do a detailed examination?
But we're not talking about nylon, a purely synthetic molecule, we're talking about "photocopies" (PCRed) of a naturally occurring molecule. The molecule itself is in nature. I said this earlier, and I'll say it again: this is like patenting a mountain because you took a picture of it, because you claim the picture is a manmade creation.
Except that as noted above, the molecule itself isn't in nature. (Not that a picture would be patentable, but) this is like patenting the picture of the mountain because you took it. You stake no ownership claim over the mountain, and no mountain infringes your claim. Just the picture.
Oh, it would certainly qualify under laws as they stand. Doesn't mean that they're good laws. I don't see how a material in and of itself can be claimed as patentable on any reasonable or ethical grounds. Just because you're the first one to discover some way of obtaining a certain substance, why should you be able to preclude me from devising a different way of getting the same thing? The substance in and of itself is not a creation of your intellect.
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I have prior art that dates back nearly 40 years.
When I was a kid, my mom taught me that if I don't recognize the face when I look out the door peephole, don't unlock the door.
I'm pretty sure your mom didn't teach you to provide a prompt to the person at the door who could then answer yes, and you'd let them in. Sometimes it helps to actually follow the link in the article and read the claims, rather than just immediately crying "I have prior art" based on the title.
Actually, I made my claim based on the abstract:
Ah, gotcha. The abstract has no legal weight. It's just there to make quick searches of patents easier. You have to look at the claims which require that prompting step.
I have prior art that dates back nearly 40 years.
When I was a kid, my mom taught me that if I don't recognize the face when I look out the door peephole, don't unlock the door.
I'm pretty sure your mom didn't teach you to provide a prompt to the person at the door who could then answer yes, and you'd let them in. Sometimes it helps to actually follow the link in the article and read the claims, rather than just immediately crying "I have prior art" based on the title.
Second, this is just refining inducement, no. 2 above: if you encourage someone to perform one or more of the steps, and you perform the rest, you're infringing the patent, even if you're not explicitly acting as partners. This makes sense for many reasons, not the least of which being that it closes the above loophole in which you induce someone else to infringe and perform the first step for them, suddenly making it non-infringing under the old law.
The situation you describe would certainly be criminal infringement as it is performed on a commercial scale. No civil lawsuit would be necessary or sensible in such a case.
So, say I'm Apple... I should be able to hire some unemployed guy under the table to copy and distribute Windows 8 for free, and if Microsoft gets upset, tough luck: that guy can go to jail and serve his year (and get a nice million dollar "gift" from me) and no civil lawsuit is necessary or sensible?
what really pisses me off is the retroactive removal of works from public domain.
Just proves who is really in charge of the country, since otherwise that would have been slammed out the door as an ex post facto violation.
So who would that be, "other countries"? Since it was done to comply with treaties that we signed.
Nobody is truly arguing that breaking copyright is ok. What people have a problem with at this point are two things.
1) The level of damages should not exceed 10 times the value of the product/song
The value of a distribution license is somewhere between $20k and $200k per song, based on, for example, what Michael Jackson paid for the Beatles' catalog. So people shouldn't really have a problem with this unless they hadn't realized that he was uploading the songs too and not just leeching.
2) The charges should not be able to be brought until it can be proved that the person being sued actually commited the crime
People really shouldn't have a problem there... Tenenbaum confessed to sharing them. In court, under oath, while being questioned about it. I think that's pretty good proof.
Having now read the opinion, here's how the judge came out:
1. The jury found this guy guilty of infringement. 2. The guy had 8 years of known infringing activities 3. The guy destroyed evidence 4. The guy lied repeatedly 5. It wasn't just a matter of him downloading songs, he was uploading them too 6. The jury got to see all the evidence 7. Congress set the bounds for copyright infringement's statutory damages 8. The jury pick something on the arguably low end of the range 9. When looking at the common law rules the judge did not feel the case was inequitable under the circumstances.
I would wager good money that had 2-5 been different, the judge WOULD have found the award inequitable.
That said, I have some questions about why 2 and 5 were even in evidence at all. They seem irrelevant to copyright infringement of the songs at issue here. I haven't kept pace with this case, but I should think those are irrelevant unless they were themselves proved to be infringements.
Also, it helps not to destroy evidence or lie.
Good analysis. To answer the questions about 2 and 5, one of the rights under copyright is "distribution" - i.e. uploading. It's really the more important one - if you download a single copy of a song and never share it, then you actually have a really good idea as to why .99 cents is a good number for damages. If you're distributing them, then you're acting like, say, Apple with the iTunes Music Store, and now you're talking about licenses, royalties, guaranteed minimums, etc. That's where the $750-150000 damage amounts come into play.
Here, the complaint in this one was that Tenenbaum was distributing or uploading the songs, so #5 is in play.
#2 is a separate issue... The question there was whether he was intentionally sharing music. Maybe he's a moron who got this "free music" application from his friend and he had no idea how it worked and is flabbergasted to find that he was actually uploading music to other people and how can you possibly find him responsible when he doesn't know anything about computers?! ... except that he's been doing it for 8 years and even wrote a paper about it. So, the "gosh, I had no idea" defense is off the table.
I'm not sure how they can say you owe $675,000 for stealing roughly $30 worth of products.
Say you wanted to set up a music sales site... like, say you're Apple, and you wanted to set up the iTunes Music Store. Do you think you could offer the record companies 30 bucks for a perpetual, royalty free license? Like, "here's 30 bucks, I'mma gonna go distribute a million copies of Carly Rae Jepsen"?
This case isn't about downloading a single copy... this case was about uploading and distributing potentially thousands upon thousands of copies.
We're blaming the judge for not upholding the law. Specifically, that part of the law which states that "Excessive bail shall not be required, nor excessive fines imposed".
Since we're clearly not talking about bail, where exactly is the "excessive fine"? Fines, y'know, are paid to the government. This was compensatory damages in line with statutory guidelines, and the 8th Amendment doesn't say anything about not imposing excessive damage awards.
It seems you've weakened your argument by pointing out yet another type of legal protection distinct from patents, trademarks and copyright that seems to overlap with them significantly.
Not at all. As your linked Wiki notes, trade dress is covered by the Lanham Act, which is the Federal trademark act. Trade dress is similar to a trademark, except that the trade dress covers distinct look and feel as opposed to a specific symbol, word, or logo. For example, ever notice how every McDonald's looks the same? That's distinctive trade dress. You can't build a restaurant called "Burger Palace" and use that specific set of arched windows, brick exteriors, mustard yellow seating, etc., etc., that would lead someone to glance at it and say "Hey, look, a McDonald's."
AFAIK, Apple isn't even bringing up trade dress in these lawsuits. I had never heard the term before and I'd guess the vast majority of non-lawyers have not heard it either so it could easily be used as an example of how far legal protection for products has diverged from everyday life and common sense.
Simply because you've never heard of something and didn't bother reading the wiki you linked to about it doesn't mean it doesn't exist. There are more things in Heaven and Earth, Jonner, than are dreamt of in your philosophy. For example and contrary to as far as you knew, Apple's complaint expressly mentioned trade dress infringement:
As alleged below in detail, Samsung has made its Galaxy phones and computer tablet work and look like Apple’s products through widespread patent and trade dress infringement. Samsung has even misappropriated Apple’s distinctive product packaging.
The specific section starts on page 8.
And I should point out that, in cases of rape or sexual assault, physical evidence is frequently discounted too: many people make the argument that the grabbed-woman-in-a-park was actually really consenting to public anonymous sex, as evidenced by her clothing, or her being in that area at night, etc., etc.
Nobody credible does this, and asserting that this is true weakens the rest of your argument.
Using a No True Scotsman fallacy to argue that someone else is making an unsupported assertion somewhat undermines your credibility.
I did not say that the woman was getting manicures. I said that the woman was abusing the money, but doing everything possible to be aboveboard.
Eg, buying adidas, instead of ozark trail, or some similarly generic store brand. Or, buying tommy hilfiger jeans instead of rustler, and putting those purchases down as "shoes and jeans."
Addidas cost over 70$. Ozark trail rarely costs over 40. Tommy hilfiger jeans can easily cost over 100$. Each. Rustler rarely costs more than 30$.
I was addressing the situation presented whe the man has custody, and buys the more fiscally responsible option, vs the situation where the woman uses the money unwisely on purpose, distorts her purchases on the accounting, and does this to "stick it" to the man.
Ah, gotcha. If you're complaining that your child is wearing designer clothes rather than store brand, then you may have a legitimate complaint, or you may be full of shiat. The court is going to consider whether, if you were still together and/or had custody of the kid, whether the kid would be in the designer clothes or store-bought ones. If the latter, then it's you being unreasonable, not the custodial parent. You don't get to force your kid into a poverty-level existence merely by not being the custodian. The kid is still entitled to the same level of care and support they would get if you were together.
That said, if it's true that you would have been buying the kid store-brand stuff - i.e. if you make $30k per year, or if you're the custodial parent of another kid who is only wearing store-brand stuff - then you can certainly go back to the court with the receipts to argue that spending $20k per year on the kid is unreasonable. Failure to do so doesn't mean the courts are biased against you, though.
But if you're just trying to make the argument that even though you earn $100k per year, you would only spend $10k on your kid, a court isn't going to look kindly on that.
However, the institutional convention of "woman wins by default" leads to a considerable amount of disharmony, and stress that could be mitigated with more sensible awards of custody.
Again, if you're serious about this, then work more with NOW and other feminist organizations. Courts award custody the way they do because of such societal presumptions, because of unequal pay, and because of (frequently unpaid) maternity leave and the lack of paternity leave. Fix those problems such that both parents are economically equal, and the custody decisions will follow. The law is already neutral, so you just need to change the factual factors underlying the judicial decisions.
I was referring more toward the phenomenon where the mother uses the support money in less than frugal manners.
Yes, and I addressed that:
With regard to your other legitimate-but-unrelated complaint about how support is being utilized, that has nothing to do with whether support is required or whether it's punitive. That said, it's the right of every custodial parent to get an accounting of what the support is spent on, and you can go to the court with that accounting and use it to modify the amount of support or to gain custody. For example, if you pay support each month and the custodial parent uses it to buy alcohol, or shoes, or golf clubs, or whatnot, and is not taking care of the kid, then that's just about the strongest argument you can make for obtaining custody, short of the other parent being in jail.
Please at least pretend to read my well thought-out responses.
Rape is rather different though in that in the difficult cases both victim and perpetrator are of similar socio-economic backgrounds, and it is easy to imagine a situation in which consent would be given whether it was or not.
Quoth Mr. B. Joel, "You know I've seen her in her uptown world, she's getting tired of her high class toys, and all her presents from her uptown boys. She's got a choice."
In cases of fraud it is far more likely that the incident under dispute is the only conceivable reason that the two parties came together. Similarly in robbery. Similarly in cases where rape is easier to prove.
I'm not sure what you're trying to say. The occurrence of the incident is not in question, rather it's a question of consent. Whether two people come together for a business contract or an orgasm is irrelevant if they both agree to those facts, but disagree as to whether there was consent.
You do run into similar difficulties when fraud is committed by one friend against another - they both come off as similarly credible. It's just that you run into it a lot more often with rape charges since so many are committed by an acquaintance or someone in a similar social circle. It's not that the victim is less credible, it's that both victim and perpetrator come off as equally credible, making the case extraordinarily difficult to prosecute because who do you believe?
If the victim and perpetrator are equally credible, then you won't be able to convince a jury that the perpetrator is guilty beyond a reasonable doubt. This doesn't mean that the victim is lying, as the GP post suggested. It's merely that 50-50 isn't enough to convict. The problem here, you see, is that some people turn an acquittal or a DA declining to bring charges for this reason into a guilty verdict convicting the victim of perjury, making a false report, defamation, etc. In other words, a false dichotomy where in person A isn't found guilty under the high burden of proof of "beyond a reasonable doubt", then person B must be guilty under the inverse burden of proof of "any reasonable possibility".
I would gladly concede this, if the fallacy that women make superior parents was not routinely applied in such paternity and custody proceedings.
Though true, that has nothing to do with what we're talking about. Additionally, the laws are being fixed, state by state, to remedy that fallacy. And you know who's behind those fixes? Feminists. Because the fallacy rests upon the presumption that women don't have careers and that men can't be stay at home parents. Things like the Fair Pay Act and mandatory paternal leave are things that will significantly undermine those presumptions and fix that fallacy.
That said:
I believe that if the man desires the child, he should have equal opportunity to be awarded custody. This is not conserved in practice, thus in practice, child support is usually punitive.
Those are different things. Support is not punitive, because support is an obligation that arises solely due to the child's existence, and is required of both parents. If custody went the other way and the man was the custodial parent, don't you think he'd still have to pay rent, buy food, take care of the kid, etc.? It's not like the custodial parent doesn't have to lift a finger, and the non-custodial parent has to pay for both of them.
With regard to your other legitimate-but-unrelated complaint about how support is being utilized, that has nothing to do with whether support is required or whether it's punitive. That said, it's the right of every custodial parent to get an accounting of what the support is spent on, and you can go to the court with that accounting and use it to modify the amount of support or to gain custody. For example, if you pay support each month and the custodial parent uses it to buy alcohol, or shoes, or golf clubs, or whatnot, and is not taking care of the kid, then that's just about the strongest argument you can make for obtaining custody, short of the other parent being in jail.
I agree for the most part, but the world is not black and white. Here's a little hypothetical thought experiment:
A teenage man (say, 19, so above majority age) goes to a party, which involves alcohol. He gets drunk enough to become sufficiently intoxicated to black out the evening. He wakes up in his bed at home, after being dropped off by friends. 3 months later, a girl who was at the party claims a paternity suit against him for her now 3rd month pregnancy, the test shows positive. he does not remember giving consent, and does not remember the woman at all.
Now, Flipside.
A teenage woman, (Say, 19, so above the age of majority), goes to a party which involves alcohol. She gets drunk enough to be sufficiently intoxicated to black out the evening. She wakes up at home in her bed after being dropped off by friends. She has semen stains in her panties. She does not remember giving consent, and promptly makes use of a female hotline to report her "rape."
These situations are essentially identical, however the female's view holds more gravity than does the male's.
Yes, because of one distinction in the situations - she reported a crime and he didn't. I'm not sure why you're suggesting that men shouldn't be able to report being victims of rape, but it may be that you're falling into the cultural bias you mention later. The law has no such bias.
I would say it is because of cultural bias, and double standards; women are percieved as more vulnerable, (when both are equally vulnerable to alcohol and other drugs), and thus requiring the stronger protections. Men are conversely considered to be "stronger", and being raped in this way is even culturally approved of in a disturbingly sick fashion.
It probably has more to do with the 9 months of pregnancy and labor that a female victim may have to go through that a male victim doesn't.
I really do believe that it is possible to have a no-fault rape case. Both participants get smashed and fuck like rabbits while out of their minds, and assert they would never have consented to the sex while sober. How does the law react to such a circumstance? Does it punish both victims for their over-indulgences? Who pays child support?
See the problem?
Yes, I do - you're thinking that "child support" is "a punishment for over-indulgences". That's a huge problem. Child support is the right of a child to support by its parents or a willing assignee (i.e. foster parents, adoptive parents, the state, etc.). The parents may have done nothing wrong - or may have done everything wrong - and it's irrelevant, because the sole question is "is there a child" and if so, it's entitled to support. Absent such an assignment, the parents don't have any ability to waive that obligation. Fair? No, but as a society, we've decided that it's better that parents should take care of their children than that children should be left to starve. It's not "punishment" for the parents, but a fiduciary obligation.
Akin's comments were tasteless and ignorant of current knowledge/data, but since no one else is coming to his defense, I will.
There are two aspects of his comments to which people take offense. To get the first out of the way quickly, "legitimate rape", the 2004 Maryland case of "delayed withdrawal of consent" is an example of "rape" that is not "legitimate".
Why exactly is that not "legitimate"? As Maryland's Court of Appeals ruled in that very case, "The crime of first-degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration."
If a woman tells you to stop, and knowing that she does not consent, you disregard her lack of consent and continue having sex with her, that sure does sound like "legitimate" rape. People bring up this case in an attempt to argue that a woman could say no during sex and a millisecond later, you're a rapist. You're not. It doesn't work that way. The crime of rape, as with all crimes, requires intent. You must intentionally continue farking while knowing you don't have consent. If you reasonably believed you had consent - like you would in that millisecond, and probably for several seconds before the words travel to your brain - then you're not committing rape.
Here's an analogy... Say you're kickboxing or doing MMA with someone. You punch them several times, but they've consented to the match and it's therefore not battery. At some point, they go down and you dive on them to get in several more punches. Are you committing battery? Nope, match isn't over, you still reasonably believe you have consent.
The ref shouts stop and starts pulling you off, while you get in one more punch. Is it battery now? You don't have consent and the match is over... but it's only been a second, and so you reasonably still believe you have consent.
Then, you do a bit of mugging for the crowd and cheering your victory while the ref fans the guy back into consciousness. People are applauding and your trainer is starting to enter the ring... and then you turn around and kick the guy in the head. Battery? Oh, hells yeah. Even "legitimate" battery.
In other words, consent can certainly be withdrawn. When your actions become criminal is not that instant, but when you reasonably recognize that consent has been withdrawn... and then still act. Intentionally continuing to fark someone after they've said "no, stop," and you recognize that they've withdrawn consent is "legitimate" rape.
This breaks down to a degree for rape. By its nature it is infrequently observed by witnesses. This judicial system requires proof beyond a reasonable doubt that (a) a specific event happened (what event depends slightly on your jurisdiction) and (b) one of the parties involved did not consent to it.
Some cases are straight-forward. When a man grabs a woman in a park and rapes her behind a wall, it's pretty clear that consent was not given. Then you only need to prove that the event happened, and you have a case. The event is usually pretty easy to prove - it leaves physical evidence.
But in many other cases, consent is not straightforward. When two drunk teens are fooling around and things go too far, or (in many jurisdictions) when consent is withdrawn during intercourse... then it inevitably descends in to a mess of he-said she-said.
Not just rape, though, or rather, by singling out rape, you're suggesting that victims of rape are inherently less credible than victims of other crimes. Do you believe this?
For example, fraud is a case of he-said, she-said where a victim claims they were fooled and the defendant claims the "victim" had all the facts on hand.
Or for example, robbery is a case of he-said, she said where a victim claims they were held up and the defendant claims the "victim" gave them a gift.
In other words, other than the violent ones that leave physical evidence, the majority of crimes fall down to victim testimony vs. defendant testimony, or he-said, she-said. Yet, it's only rape or sexual assault where we think that's not enough, hence even the name "he-said, she-said."
And I should point out that, in cases of rape or sexual assault, physical evidence is frequently discounted too: many people make the argument that the grabbed-woman-in-a-park was actually really consenting to public anonymous sex, as evidenced by her clothing, or her being in that area at night, etc., etc. Or, for example, that the maid allegedly raped by Strauss-Kahn was really giving him a consensual beej, and she was just so into it that she tore her rotator cuff (perhaps she was really into BDSM and consenting to have her arm held behind her back?).
In fact, even where facts are not in dispute, people will still modify them in cases of sexual assault to minimize the criminality. For example:
or, indeed when Julian Assange goes to bed with someone at night and decides he'd like a bit more the next morning, then it inevitably descends in to a mess of he-said she-said.
He said he wanted a bit more and slipped it in before she woke up. She said the same thing. There's no he-said, she-said there. Rather, it's about whether his belief that he had her consent was reasonable in view of her previous denial.
We could change this. The law could be changed so that women making a complaint of rape are believed by default. But that is placing the prevention of rape above the priority of protecting the innocent. Do you really believe that this would never be used to persecute the innocent? This would mean that some innocent people go to prison and spend their lives on a sex offenders register because their partners found a cruel way to get back at them.
On the contrary, you're suggesting that women making a complaint of rape shouldn't be believe by default. In other words, you're saying that these women are guilty of making a false report unless they prove themselves to be innocent. I'm going to suggest that you hadn't fully thought through the implications of your statement.
While patents and copyrights are usually quite distinct, they overlap significantly in this case. Specifically, design patents are not obviously different from copyrights to non-lawyers.
Not sure why, though. Design patents are not very different from trade dress. Copyright, however, is entirely different.
Your example is badly flawed. "Drinkbox Studios" is surely trade markable, as is their logo, because drinking has nothing per se to do with boxes or video games and a logo is, in any case, a trade mark.
I didn't say that it would never be registrable. Rather, what I said was that you'd have a tough time because the consuming public doesn't know who you are. If EA spun off a subsidiary with the same name, their marketing budget would dwarf yours and very quickly, the public would recognize "Drinkbox" as part of EA. Remember, in trademark and trade dress, until a mark is incontestible and has been on the principal register for three years, your ownership can be challenged by others who have obtained wider recognition by using the mark.
Before you call someone's argument flawed, make sure you're addressing their argument rather than a strawman that you've built.
Trade mark is a stronger protection than a "design patent" (in Europe a Design Registration).
Not at all. Trademarks last longer than design patents, but they are surely not stronger. For example, I can use the Coca-Cola mark right here, as I just did, because it's not a use in commerce. And I could even sell my own soda and say "tastes like Coca-Cola, but for half the price!" or whatnot, as that's covered under fair use. But I can't use a patented symbol or design, as there is no fair use argument there.
trade dress exists explicitly to prevent design elements from being appropriated to such a degree that the public is confused. Apple has invested a lot of money in design, and creating a very particular sense of cool in their products. and they should be allowed to profit from that investment... by selling their products. And if people were buying samsung phones or tablets thinking they were iphones or ipads, that would be one thing, but i have trouble believing a reasonable person would make that mistake.
Ah, but people do make that mistake. Samsung's lawyers famously made that mistake when they couldn't tell apart the Galaxy Tab and an iPad, and during this trial, there have been documents identifying people returning Galaxy Tabs that they thought were iPads during their initial purpose. Now, I will concede that (a) those people may be morons, and (b) it's probably not a statistically huge amount, but nonetheless, the confusion is real.
Additionally, trade dress and design patents are a lot alike, as you note, covering the aesthetic or ornamental features of something, but with one very important distinction:
In other words, you can get trade dress protection over the color pink, if you're Corning and make insulation, because while "pink" is neither new nor nonobvious, it is immediately recognizable as associated with their rolls of insulation.
Conversely, if you're a small and new video game developer - say, Drinkbox Studios - you probably can't get trade dress protection because the consuming public doesn't recognize you. Hell, most of them probably haven't even heard of you. So if a big developer like EA wanted to spin off their "Drinkbox Games" division, you wouldn't have much recourse. But you could get a design patent on your new, nonobvious logo.
So, basically, yes, they overlap, but trade dress protects well established brands (and is part of the reason why it lasts forever), while design patents don't care about establishment and merely protect new and nonobvious designs (which is part of the reason why they only last 14 years). Design patents therefore protect smaller companies and individuals, and abolishing them would let big companies simply copy their style.
If you go back to the mid-1990s, there was their famous "look and feel" lawsuit against Microsoft. Apple's case there was eerily similar to the one they're running today: "we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it's impossible for us to keep innovating." Apple ended up losing the case.
The Apple v. Microsoft case was on copyright, not patents. Specifically, the court ruled that:
Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]...
and look-and-feel simply isn't covered there.
With that distinction and proper categorization in mind, the article misses a crucial difference between the 1990s and today: Apple made a significant push to protecting its designs with patents. The lack of such protection almost killed Apple in the 1990s, and its with that protection now that Apple is well on its way to being the largest company ever.
>>>Or are we going to start calling in the Science fiction writers next?
We could just show a still image from TNG with Wesley holding his school PAD. Not only does it have a similar anme to iPad, but it's also rectangle with rounded corners : http://www.newfangled.com/stuff/contentmgr/files/2/516f36353ced7a44696bdaaffbc0f7f0/misc/star_trek_padd_3.jpg
Would you confuse Wesley's PAD with an iPad? Like, if they were sitting on two tables in a room, you wouldn't know which one is which and would have to do a detailed examination?
Tell that to the inventor of nylon.
But we're not talking about nylon, a purely synthetic molecule, we're talking about "photocopies" (PCRed) of a naturally occurring molecule. The molecule itself is in nature. I said this earlier, and I'll say it again: this is like patenting a mountain because you took a picture of it, because you claim the picture is a manmade creation.
Except that as noted above, the molecule itself isn't in nature. (Not that a picture would be patentable, but) this is like patenting the picture of the mountain because you took it. You stake no ownership claim over the mountain, and no mountain infringes your claim. Just the picture.
Oh, it would certainly qualify under laws as they stand. Doesn't mean that they're good laws. I don't see how a material in and of itself can be claimed as patentable on any reasonable or ethical grounds. Just because you're the first one to discover some way of obtaining a certain substance, why should you be able to preclude me from devising a different way of getting the same thing? The substance in and of itself is not a creation of your intellect.
Tell that to the inventor of nylon. :)