There are some really smart people who didn't know when to keep their mouths shut when taken "out of their element". Just ask Hans Reiser, who I believe would have been found not guilty had he stayed off the witness stand.
If the police have enough to question you, they already have enough to charge you with whatever they think you did (and often more). Your "confession" seals the deal... so just keep your mouth shut.
Sadly, less than 1 out of 100 clients heeds this advice, regardless of age, intelligence, and education..
It has nothing to do with my view. It is a fundamental concept of trademark law that you can't associate your products with another trademark owner's brand without their permission. Dilution is much broader than Company X selling computers using the trademark of Company Y, who also happens to sell computers. Apple could be selling dog food, but if Apple's mark is famous, which it unquestionably is, it prohibits the use of Apple's mark in association with just about any other product.
Perhaps the better example is all of the product placement in movies. Nobody would believe that Coca-Cola or BMW or TagHeuer were the source of the latest action movie, but that doesn't give the movie studio the right to display the hero driving a BMW without BMW's permission. By placing a BMW in the movie, there is a belief that BMW has consented to its association with the film. By using the Apple OS on a Psystar, there is a belief that Apple has consented to that use.
The Microsoft and Linux business model allow association of the OS with any type of hardware from any source (Dell, HP, Fly-By-Night Computers, whatever). Apple has not, does not, and is under no obligation to adhere to that model, no matter how many people want to run MacOS on a PC and no matter how many companies like Psystars decide they are going to put the MacOS on their machines regardless of how Apple feels about it.
Your Ford example is not what Psystar is doing though. They are essentially buying a Toyota slapping Ford badges on it and calling it a Ford. If you did that once or twice on eBay Motors, Ford wouldn't bat an eye... but if you established a store front to sell Toyotas with Ford badges on them, Ford would throw a fit (and frankly so would Toyota). That is trademark dilution - implying a false connection to a famous brand. You think you are getting a Ford, but you are really getting a Toyota. (I purposely did not use a Yugo in this example because the quality of your goods really doesn't matter when it comes to dilution of a famous brand. You could slap Ford badges on a Bentley and Ford would still be pissed (as would obviously, Bentley)).
Your notion that all Psystar customers are sophisticated consumers sounds correct initially. It may be that many of Psystar first customers are "Slashdot" types - but eventually, Joe the Plumber is going to hear that he can get an APPLE computer for 400 bucks. Not only is Apple then losing a sale on hardware, but when his "Psystar Apple" computer stops working, he is going to call Apple for the fix. That, among many things, is what Apple is trying to prevent.
There are often abuses of the Trademark Act - Starbucks, in my opinion, is absolutely awful and ruthless in "protecting" its brand, often bankrupting small coffee roasters, or even beer brewers to protect the Starbucks name. Apple has had its bad moments too... I just don't think this is one of them, and these wacky arguments Psystar lawyers are coming up with sound like the mental exercises of a law school exam.
It doesn't matter whether people are likely to think that Psystar is Apple. You have to be authorized by a trademark owner to use its trademarks - the whole point of dilution is that Psystar is NOT Apple, but is perceived to be connected to Apple in some lawful way by the use of Apple's trademarks. The public perception is likely to be that Apple has authorized Psystar to install Apple's OS on non-Apple branded hardware. That is as classic as dilution gets and is far more compelling (and grounded in case law) than this nonsense "monopoly over the Apple OS" claim Psystar tried to argue.
Apple filed separate counts for trademark infringement and trademark dilution in their original complaint (See Apple's 5th, 6th, 7th and 8th claims of relief in the original complaint), so there are in an excellent position to claim damages for brand dilution. Apple is going to win on the trademark claims alone... and if the only thing Psystar can come up with is that Apple didn't file a $45 form with the Copyright Office, they are going to win the copyright claims too. IAAL and frankly, these arguments by Psystar's attorneys are just plain embarrassing.
Mosquitoes are a winged creature. That means they fly. They are also attracted to human beings since they can detect us at ranges up to 40 miles. The fact that the mosquito was in the car is laughably circumstantial evidence. It could never even hold up in court.
You just wrote your cross examination of the cop who thinks this is good police work.
I was dying to have one of these cases cross my desk, though frankly, I was a solo and it probably would have killed me to take it. I can't stand injustice like what the RIAA is doing... guess that's why I became a Public Defender.:)
Regardless, like many Slashdot readers, I've followed your work over the years, and you have certainly brought a number of smiles to my face from the documents you have posted on your website.
Sure, Duke is bold now that NewYorkCountryLawyer and other lawyers stood their ground in a proverbial Battle of Thermopylae defending a bunch of homemakers and retirees against the RIAA army!
While it certainly helps now, we needed the universities' collective might in 2005, not 2008, and perhaps a lot of people wouldn't have been put needlessly through the wringer!
Dropping my speed from 75 to 70 has gotten me about another 3 mpg on a 40 mile commute and essentially added about 2 minutes to the trip. Finding areas to strategically put the car into neutral (i.e., going downhill) has netted me about another 1 mpg. I have tried driving at 65, but it added another 4 minutes to the trip and only about 1 mpg more so that wasn't worth it. Also, speeds of 65 and less are really hazardous in most places... the only time anybody does the speed limit where I live is if a cop is on the road.
Hypermiling works, but I am careful about it. I don't turn the engine off, or coast in high traffic where I will clog things up and aggravate people. I think one of the other things that has helped is cutting out the hard accelerating and braking. I now accelerate moderately to enter the highway and keep the high speed passing to a minimum. I also coast around town as much as I can, if it is safe.
Well, murder by self defense is still murder (or homicide), but the law calls it "justifiable homicide". It is a homicide that happens to be justified based on the circumstances.
Interesting... I appreciate the case cite and I will have to read it. It says vacated by agreement of parties... which is weird. I have never seen that before. It seems to me that it is not valid precedent, but I can't say without reading the whole case (and it is way to late for me to get started on that!). However, I searched a little further and it looks like Howell v. Miller, 91 F 129 (1898) holds that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." That is an old, old case, but certainly can still be good law today. That specifically dealt with attempts to claim copyright on Michigan statutes.
I also found this article through Google Books, which has several cites to some case authority in a footnote (not sure if that link will work, but it was simply the 4th hit on a Google search of "548 F. Supp. 110" (with quotes)). Certainly something worth reading... if you are into this sort of "legal geekiness" anyway!
This thread has provided me with some new insight on the issue. I would note that I appreciate your thoughtful and polite discourse... these Slashdot threads so often devolve into name calling, I get hesitant to follow-up on my posts. Thanks!
I agree with you with respect to the public policy and (compelling) legal arguments from the Perritt article. However, neither a public policy position from the Copyright Office, nor an article from a law journal are "law". In that sense, they are only persuasive authority, not mandatory authority, such as the Constitution, statute (in this case, Section 105) or case law. There is no case law (that I am aware of anyway) holding that a state cannot copyright a work, including legal texts it publishes.
Unfortunately, many Slashdotters are misreading Section 105. That section of the Copyright Act applies only to the Federal government, NOT the several states, nor to local (county, municipal or borough) governments. I absolutely disagree with a state government claiming copyright on its own laws, but it is technically possible.
I have seen in other posts this Veeck case cited. I haven't read the whole thing, but just the summary tells me that the issue came down to a private company claiming copyright on laws that were codified by a legislature. That is not the same as a state claiming copyright in a document (any, document, including the text of a law) it has created. A Westlaw v. Lexis case (see "Legal Disputes" section here) upheld copyright years ago on the entire work simply because Westlaw put casebook style page numbering in their version of the legal text. All Westlaw was doing was taking the government work and matching up the page numbers in their electronic version!
Like I said, I think this type of conduct is reprehensible from a state, but not technically illegal. Malamud is really (IMHO) banking on the PR nightmare of Cali actually filing a copyright infringement suit against him.
This is a mental health issue, and a stupid way of dealing with it. I work in a Public Defender's Office, and while I am sure some of these people are jerks, my experience has been that people who call emergency services with these kinds of requests often have mental health issues. That is why a lot of jurisdictions have mental health diversionary programs for people who commit minor offenses. Embarassing the mentally ill on the internet will only embolden them at best, but certainly not help them deal with their issues in any way. In that regard, this solution seems rather callous.
Actually the half of Apple's argument that everybody (including Psystar) is forgetting is the trademark claims (if you read the complaint, there are about six - ranging from infringement to dilution to state unfair competition). And those are the easier claims to make than the copyright ones.
You can drive a Honda on any road you want. You just can't pull the Honda emblems off it, stick them on a bunch of 1985 Yugos and sell them as Hondas. The Trademark Act is equally tough with damages - it can include "treble damages" and attorneys fees. That will put Psystar out of business.
If this convinces Apple to offer a mid-range expandable desktop, I'll consider it a victory.
I don't think it is a waste to learn a second language. In fact, I think it can help you in your primary area of interest/expertise. I found with learning foreign languages that I often had to think around or outside of the box in order to communicate. I might not know exactly how to say what I wanted, so I had to use different words with same/similar meanings to make my point. That can only help in the field of engineering, where break-throughs are made because one can think outside the box. If your goal is to challenge yourself to think in different ways, I don't think it matters what language you choose, though you will probably have more opportunity to use a language like Spanish than say, what I know, Italian.
Ugh... this is why District Attorneys drive me crazy (and, as a Public Defender, I deal with them regularly). Using an 1893 law to prosecute a college student... "Fundamentally," as they say, that makes them a bunch of a-holes! If you ever wanted to deal with a group of people who think in binary (on/off, black/white, etc.), work with DAs on a regular basis. Absolutely, no sense of humor...
With a law that old, however, I think it could at the very least be challenged on 1st Amendment grounds. Afterall, isn't "selling" your vote just a political statement as to the complete lack of difference your vote makes?
In ATL, the citizens at least could use the 5th Amendment's taking clause to get just compensation for any property lost to the government.
I had to look, but China does surprisingly have a version of the "eminent domain" clause in their Constitution - See #6 of "Amendment Fourth" down the page. Note it doesn't say "just compensation"... it just says they can take private property, and pay you something for it. Somehow I don't think, unless you are a Communist party big-wig, that value is decided by an impartial tribunal in a court of law.
Slashdot Mirror
There are some really smart people who didn't know when to keep their mouths shut when taken "out of their element". Just ask Hans Reiser, who I believe would have been found not guilty had he stayed off the witness stand.
As I have told countless clients:
If the police have enough to question you, they already have enough to charge you with whatever they think you did (and often more). Your "confession" seals the deal... so just keep your mouth shut.
Sadly, less than 1 out of 100 clients heeds this advice, regardless of age, intelligence, and education..
It has nothing to do with my view. It is a fundamental concept of trademark law that you can't associate your products with another trademark owner's brand without their permission. Dilution is much broader than Company X selling computers using the trademark of Company Y, who also happens to sell computers. Apple could be selling dog food, but if Apple's mark is famous, which it unquestionably is, it prohibits the use of Apple's mark in association with just about any other product.
Perhaps the better example is all of the product placement in movies. Nobody would believe that Coca-Cola or BMW or TagHeuer were the source of the latest action movie, but that doesn't give the movie studio the right to display the hero driving a BMW without BMW's permission. By placing a BMW in the movie, there is a belief that BMW has consented to its association with the film. By using the Apple OS on a Psystar, there is a belief that Apple has consented to that use.
The Microsoft and Linux business model allow association of the OS with any type of hardware from any source (Dell, HP, Fly-By-Night Computers, whatever). Apple has not, does not, and is under no obligation to adhere to that model, no matter how many people want to run MacOS on a PC and no matter how many companies like Psystars decide they are going to put the MacOS on their machines regardless of how Apple feels about it.
Your Ford example is not what Psystar is doing though. They are essentially buying a Toyota slapping Ford badges on it and calling it a Ford. If you did that once or twice on eBay Motors, Ford wouldn't bat an eye... but if you established a store front to sell Toyotas with Ford badges on them, Ford would throw a fit (and frankly so would Toyota). That is trademark dilution - implying a false connection to a famous brand. You think you are getting a Ford, but you are really getting a Toyota. (I purposely did not use a Yugo in this example because the quality of your goods really doesn't matter when it comes to dilution of a famous brand. You could slap Ford badges on a Bentley and Ford would still be pissed (as would obviously, Bentley)).
Your notion that all Psystar customers are sophisticated consumers sounds correct initially. It may be that many of Psystar first customers are "Slashdot" types - but eventually, Joe the Plumber is going to hear that he can get an APPLE computer for 400 bucks. Not only is Apple then losing a sale on hardware, but when his "Psystar Apple" computer stops working, he is going to call Apple for the fix. That, among many things, is what Apple is trying to prevent.
There are often abuses of the Trademark Act - Starbucks, in my opinion, is absolutely awful and ruthless in "protecting" its brand, often bankrupting small coffee roasters, or even beer brewers to protect the Starbucks name. Apple has had its bad moments too... I just don't think this is one of them, and these wacky arguments Psystar lawyers are coming up with sound like the mental exercises of a law school exam.
It doesn't matter whether people are likely to think that Psystar is Apple. You have to be authorized by a trademark owner to use its trademarks - the whole point of dilution is that Psystar is NOT Apple, but is perceived to be connected to Apple in some lawful way by the use of Apple's trademarks. The public perception is likely to be that Apple has authorized Psystar to install Apple's OS on non-Apple branded hardware. That is as classic as dilution gets and is far more compelling (and grounded in case law) than this nonsense "monopoly over the Apple OS" claim Psystar tried to argue.
Apple filed separate counts for trademark infringement and trademark dilution in their original complaint (See Apple's 5th, 6th, 7th and 8th claims of relief in the original complaint), so there are in an excellent position to claim damages for brand dilution. Apple is going to win on the trademark claims alone... and if the only thing Psystar can come up with is that Apple didn't file a $45 form with the Copyright Office, they are going to win the copyright claims too. IAAL and frankly, these arguments by Psystar's attorneys are just plain embarrassing.
Mosquitoes are a winged creature. That means they fly. They are also attracted to human beings since they can detect us at ranges up to 40 miles. The fact that the mosquito was in the car is laughably circumstantial evidence. It could never even hold up in court.
You just wrote your cross examination of the cop who thinks this is good police work.
Ray,
I was dying to have one of these cases cross my desk, though frankly, I was a solo and it probably would have killed me to take it. I can't stand injustice like what the RIAA is doing... guess that's why I became a Public Defender. :)
Regardless, like many Slashdot readers, I've followed your work over the years, and you have certainly brought a number of smiles to my face from the documents you have posted on your website.
Regards,
Anthony
Sure, Duke is bold now that NewYorkCountryLawyer and other lawyers stood their ground in a proverbial Battle of Thermopylae defending a bunch of homemakers and retirees against the RIAA army! While it certainly helps now, we needed the universities' collective might in 2005, not 2008, and perhaps a lot of people wouldn't have been put needlessly through the wringer!
Dropping my speed from 75 to 70 has gotten me about another 3 mpg on a 40 mile commute and essentially added about 2 minutes to the trip. Finding areas to strategically put the car into neutral (i.e., going downhill) has netted me about another 1 mpg. I have tried driving at 65, but it added another 4 minutes to the trip and only about 1 mpg more so that wasn't worth it. Also, speeds of 65 and less are really hazardous in most places... the only time anybody does the speed limit where I live is if a cop is on the road. Hypermiling works, but I am careful about it. I don't turn the engine off, or coast in high traffic where I will clog things up and aggravate people. I think one of the other things that has helped is cutting out the hard accelerating and braking. I now accelerate moderately to enter the highway and keep the high speed passing to a minimum. I also coast around town as much as I can, if it is safe.
Well, murder by self defense is still murder (or homicide), but the law calls it "justifiable homicide". It is a homicide that happens to be justified based on the circumstances.
Easy... can't you see the Windows CoA on the top panel? :)
IAAL. I could never make it THAT simple! :)
8u9mEn0t.C0m
or
bu6m3n07.c0m
or (really throw Facebook)
|}|_|6|\/|3|\|0+.(0|\/|
Interesting... I appreciate the case cite and I will have to read it. It says vacated by agreement of parties... which is weird. I have never seen that before. It seems to me that it is not valid precedent, but I can't say without reading the whole case (and it is way to late for me to get started on that!). However, I searched a little further and it looks like Howell v. Miller, 91 F 129 (1898) holds that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." That is an old, old case, but certainly can still be good law today. That specifically dealt with attempts to claim copyright on Michigan statutes.
I also found this article through Google Books, which has several cites to some case authority in a footnote (not sure if that link will work, but it was simply the 4th hit on a Google search of "548 F. Supp. 110" (with quotes)). Certainly something worth reading... if you are into this sort of "legal geekiness" anyway!
This thread has provided me with some new insight on the issue. I would note that I appreciate your thoughtful and polite discourse... these Slashdot threads so often devolve into name calling, I get hesitant to follow-up on my posts. Thanks!
I agree with you with respect to the public policy and (compelling) legal arguments from the Perritt article. However, neither a public policy position from the Copyright Office, nor an article from a law journal are "law". In that sense, they are only persuasive authority, not mandatory authority, such as the Constitution, statute (in this case, Section 105) or case law. There is no case law (that I am aware of anyway) holding that a state cannot copyright a work, including legal texts it publishes.
Unfortunately, many Slashdotters are misreading Section 105. That section of the Copyright Act applies only to the Federal government, NOT the several states, nor to local (county, municipal or borough) governments. I absolutely disagree with a state government claiming copyright on its own laws, but it is technically possible.
I have seen in other posts this Veeck case cited. I haven't read the whole thing, but just the summary tells me that the issue came down to a private company claiming copyright on laws that were codified by a legislature. That is not the same as a state claiming copyright in a document (any, document, including the text of a law) it has created. A Westlaw v. Lexis case (see "Legal Disputes" section here) upheld copyright years ago on the entire work simply because Westlaw put casebook style page numbering in their version of the legal text. All Westlaw was doing was taking the government work and matching up the page numbers in their electronic version!
Like I said, I think this type of conduct is reprehensible from a state, but not technically illegal. Malamud is really (IMHO) banking on the PR nightmare of Cali actually filing a copyright infringement suit against him.
Sell them on eBay like Seattle did with the self-cleaning toilets. Though the toilets are probably far more useful.
This is a mental health issue, and a stupid way of dealing with it. I work in a Public Defender's Office, and while I am sure some of these people are jerks, my experience has been that people who call emergency services with these kinds of requests often have mental health issues. That is why a lot of jurisdictions have mental health diversionary programs for people who commit minor offenses. Embarassing the mentally ill on the internet will only embolden them at best, but certainly not help them deal with their issues in any way. In that regard, this solution seems rather callous.
Actually the half of Apple's argument that everybody (including Psystar) is forgetting is the trademark claims (if you read the complaint, there are about six - ranging from infringement to dilution to state unfair competition). And those are the easier claims to make than the copyright ones.
You can drive a Honda on any road you want. You just can't pull the Honda emblems off it, stick them on a bunch of 1985 Yugos and sell them as Hondas. The Trademark Act is equally tough with damages - it can include "treble damages" and attorneys fees. That will put Psystar out of business.
If this convinces Apple to offer a mid-range expandable desktop, I'll consider it a victory.
I don't think it is a waste to learn a second language. In fact, I think it can help you in your primary area of interest/expertise. I found with learning foreign languages that I often had to think around or outside of the box in order to communicate. I might not know exactly how to say what I wanted, so I had to use different words with same/similar meanings to make my point. That can only help in the field of engineering, where break-throughs are made because one can think outside the box. If your goal is to challenge yourself to think in different ways, I don't think it matters what language you choose, though you will probably have more opportunity to use a language like Spanish than say, what I know, Italian.
Isn't this just the geek version of biathlon (with less snow and more pummeling, of course)?
Ugh... this is why District Attorneys drive me crazy (and, as a Public Defender, I deal with them regularly). Using an 1893 law to prosecute a college student... "Fundamentally," as they say, that makes them a bunch of a-holes! If you ever wanted to deal with a group of people who think in binary (on/off, black/white, etc.), work with DAs on a regular basis. Absolutely, no sense of humor...
With a law that old, however, I think it could at the very least be challenged on 1st Amendment grounds. Afterall, isn't "selling" your vote just a political statement as to the complete lack of difference your vote makes?
Of course, the definition of "citizen" has proven to be quite selective. Just ask the Tibetans...
Yeah, you're right, but the Supreme Court has unfortunately said otherwise.
In ATL, the citizens at least could use the 5th Amendment's taking clause to get just compensation for any property lost to the government.
I had to look, but China does surprisingly have a version of the "eminent domain" clause in their Constitution - See #6 of "Amendment Fourth" down the page. Note it doesn't say "just compensation"... it just says they can take private property, and pay you something for it. Somehow I don't think, unless you are a Communist party big-wig, that value is decided by an impartial tribunal in a court of law.