I think it is more likely that Apple's lawyers pitched some offers to this couple to "make them go away" and couldn't work anything out. Then they just went about their business of setting up the service (this service through Starbucks was probably already well in the works - doubtful the "delay" was some tactic against this couple, though they might perceive it that way and allege it in the complaint). This patent seems silly - and in my mind, the longer it goes the worse the deal gets for the Plaintiff. Apple can counterclaim that it is an obvious "invention" and then not only does the couple have to prove infringement, but defend a valid patent - they might not even get in front of a jury on that one.
I don't know what I hate about capitalism more: patent trolls trying to make a buck off of big companies and raising the cost of products for everyone, or insensitive corporate clods who try to stomp on the little guy to keep the price of their products inflated. Either way, the consumer loses.
If you are going to remote places, you should check out a Solio Charger, which will charge your gadgets (at least, the phone, camera and other small stuff) using the sun.
My mother-in-law got me one for Xmas, and it is quite cool.
I was not aware of that, being from PA. As I thought about it after I posted, however, realize that MS pays sales tax on the products and services it buys for the general operation of the corporation... everything from TP for the bathrooms to copiers for the office. Not to mention the fact that, besides employing 35,000+ people, MS contributes indirectly to Washington's economy through the salaries and other benefits provided to those employees (at least the ones living in state).
I think in the end, Washington is getting a good cut of tax in various ways from MS (not to mention fees for licenses, zoning assessments, etc.), enough that Washington would rather have MS in the state then out. But like any other big MNC, MS really has the resources to work the tax system, and they do. IMO, that says more about the tax system itself than MS.
It is not like Washington isn't getting a cut out of MS. With 11.2 Million square feet or real estate, think of the property taxes? With 35,000+ employees, think of the payroll taxes?
Seriously, please don't tell me everybody on Slashdot is naive enough to think that companies like Red Hat, SUSE and Ubuntu aren't working the tax system either! Companies from a one man show to an MNC use this system to pay the least amount of tax they can. Nevada and Delaware have long maintained favorable tax treatment of corporations exactly for this purpose. If Washington wants in on this action, they can offer the same incentives to encourage MS to claim those profit in WA.
PJ as usual gives a good overview of what is going on. What she doesn't really spell out is that the mark needs to be viewed in reference to each one of these services. It is possible that CYBERLAW, when used in connection with some of these services, is descriptive, and not really generic. However, in this case, it may be so highly descriptive with any of these services that no amount of evidence will be sufficient to prove "secondary meaning" (i.e., acquired distinctiveness) - which just means that CYBERLAW for this guy will never become like INTERNATIONAL BUSINESS MACHINES has for IBM. In that sense, the difference between generic and descriptive is pretty moot.
It always concerns me when I see a laundry list of goods and/or services in an application, especially in this case, when most, if not all, of the services listed generally fall under the USPTO accepted identification of "legal services". That it is often a sign of an inexperienced trademark attorney.
More taxpayer dollars on utter nonsense. So the legislature wants to give ISPs immunity to help them spy domestically, and wants to screw coffee shops if they don't police their network. Ridiculous!
So what? His convictions for bank fraud are not (likely) some smoking gun in the patent case.
The conviction goes to the weight of his own testimony, not the merits of his case. Generally, convictions of criminal activity are only admissible if the convictions serve some probative value in the current case. If he obtained his patent lawfully, his conviction for bank fraud is not relevant to the case and can't be admitted to show that, since he committed bank fraud, he must be committing patent fraud.
In my state jurisdiction (PA), however, crimen falsi crimes (i.e., crimes of dishonesty) are admissible for purposes of impeaching a witnesses credibility. He won't be in state court though, he'll be in Federal court and FRE 608 and 609 will apply.
BSA refuses to disclose the source of their information; RIAA files ex parte sub poenas to get their information
BSA goes after small businesses because they have no leverage; RIAA goes after high school and college kids because they have no resources
BSA doubles or triples their settlement offer with respect to the original license costs; RIAA offers non-negotiable flat settlements which leave the defendant open to further lawsuits
"Rights" are not "freedoms", but they are easy to confuse in light of the Constitutions reference to "rights". You have a right to nothing. You are certainly free to do lots of things: bake bread, drive to work, build a house. For most things, however, you are doing them at the whim of the government. The government can restrict how and when you make bread, the government can require you to get a driver's license before you use the road (and take it away), the government can force you to build your house a certain way or tax the land that it is on. The government limits your freedom every day under the Commerce Clause. In fact, the U.S. Supreme Court has provided the legislature broad latitude to restrict your freedoms providing the freedoms being restricted are not fundamental rights. That is called rational basis, and the Supreme Court's interpretation of "rational basis" is anything but rational in my mind since it allows the government to make any argument in order to meet the standard of review. The government would have been perfectly justified in keeping the internet a DoD project. What fundamental right would have been involved? First Amendment? Hardly! You can exercise your right to free speech with the telephone, the post office, the TV and the newspaper.
Your "right" to broadband internet access is subject to the contract you signed with your ISP. You don't agree, you don't have service. Ask the government to step in on that one...
I get what you are saying and being a part-time defense attorney, I agree with you. I tend to fall on the side of making the government work for its convictions. There are also, however, exceptions to the warrant rule... exigent circumstances being the most obvious. I am not saying that such exceptions apply to a blanket form of snooping, but the (Bush) government has tried to work around the warrant requirement and the courts have had to interpret these concepts in a digital context.
Snooping may be illegal, but there is little difference between the guy with a handheld gadget snooping your wi-fi connection and Verizon or Comcast doing it as it flies out your router (especially in light of their terms of use). Either way, you are up the proverbial creek without a paddle if it is the thief or a Comcast employee who does something "illegal" and discovers you are planning a terrorist attack (or cheating on your wife) and discloses the information to authorities. Damage done is damage done.
I don't necessarily agree that the internet isn't public simply because you have to pay for it to gain access (in your home). You can go to the library to have access for free and with the number of open wi-fi points in Panera, Starbucks or whatever, there are other places as well to get free access.
Maybe in Deadwood (which I never watched), ISPs are state actors, but not in the U.S.
I do however see the point you are trying to make. Unfortunately, I don't think the line is so easily draw with ISPs as to when they may be doing "state action" and when they are private companies asserting their position of strength over the consumer. At least, the world has come a long way since Marsh v. Alabama.
Well, first you make an assumption that all criminals, and all members of al-quaida are sophisticated enough to use encryption. In light of the crap I have seen posted on myspace, youtube, facebook and the like, that is clearly not the case.
Second, I was really making a comment on the interpreting the 4th amendment in the digital age. One of the ways that privacy, though not necessarily 4th amendment protected privacy, is "violated" is by snooping. The question is, where does the 4th amendment kick in? In light of the fact that the Internet is truly public, are we really getting it all wrong with analogizing Internet communications like regular mail.... perhaps they are more like cell phones, where any third-rate jerk who spend $50 on some technology can snoop?
Supposed the government grabs all communications as they leave your ISP? Do they need a warrant for that? Is it even a protected 4th amendment interest? I'd like to think that it is, but I don't know if it really all that much matters what the Terms of Use of your ISP are. The real question is how we are going to overall define what class of communications e-mail and the like fall into. I'd hope that we would err on the side of caution and make the government work to have access, but I see the arguments on the other side as well, some of which (i.e., don't all criminals use PGP anyway?), you have already cited.
In the end, however, I think your sealed envelope is more like plain e-mail. If your envelope is ripped, damaged, held up to the light or whatever and the Postal Service (or anybody) looks at the contents and sees what they believe is illegal activity, a warrant based on that info is not going to get tossed. Same as if some sysadmin, script kiddie or whoever is looking at packets as your e-mail goes through the system and somehow catches you are doing something illegal. If script kiddie gets a momentary conscience and sends your info to the police, there is no 4th amendment issue, though you may have a civil remedy (big deal once you are in jail!).
GPG or PGP are really closer to hand delivery (assuming these encryptions methods can remain ahead of the technology trying to break them).
ISPs are not government entities, though I get that in the digital age, the line of who is a state actor and what is a state action is less clear. So there is no 4th amendment protection against what the ISPs do with your data (though there may be some statutory or common law tort theories for privacy violations). ISPs can provide you service under any terms they see fit, and you certainly don't have a constitutional right to broadband internet access.
The far more impacting (and interesting) legal question is how the courts are going to view the 4th amendment (and others) in light of the way communications are stored for eternity on the internet. A traditional approach seems unwise, since the way ISPs word their terms of service make it so your data practically falls under the "open fields" doctrine for purposes of search and seizure. On the other end of the spectrum, I don't want police investigations entirely shut down just because we want heightened protections for data that we keep in essentially insecure methods.
If you are that worried about privacy, use PGP or GPG.
Isn't this what Linux and the GPL are all about? That is why Red Hat tolerates CentOS, because they agreed to the GPL when they created their own Linux distribution. As long as CentOS removes the front-end trademarks, it seems to me the GPL applies.
Doesn't Red Hat derive a benefit from CentOS. Maybe a business running CentOS (like that described in the article) gets over its head in configuring or managing a CentOS server, and the moves to RHEL with paid support.
Trademark rights are acquired by use, not necessarily by filing an application in your country's Trademark Office and definitely not by reserving a domain name. The USPTO has made it very clear that registering a domain name is meaningless to show use of a trademark in commerce. Trademarks must be used in commerce on goods or services. You do not just "get a trademark" on everything under the sun because you start using the name. That is because there is only confusion (or, the true standard, likelihood of confusion) if similar marks are used on similar goods or services. Now, there is an exception to that for "famous marks". Owners of famous marks can stop people from using similar marks on just about anything through a theory called "dilution". Recent amendments to the U.S. Trademark Act (a.k.a Lanham Act) make it very difficult to have a mark meet the standard of being "famous". Basically, you have to be a Coca-Cola, Apple Computer, or Hard Rock Cafe to get that kind of status (and even then, YOU have to prove it, you don't simply file something and "get it").
So, if he is using the trademark, I'd love to know on what? Registering a domain name and tossing up a pre-made "click through" ad page, in my mind, would not count. (He could argue that he is providing some type of advertising service, but there is a lot of room to argue on that one). Even then, if you are using the mark on " a blog providing news and information in the field of open source software", those two services are not really related. It would be the same as saying Delta Airlines and Delta Faucets (essentially identical marks) cannot co-exists. Obviously, they do and have for years.
Go see a trademark lawyer... that is obviously the smartest thing to do. Most will at least meet with you for a half-hour or an hour at no charge.
I think the most telling quote is "No one wants a proprietary system that benefits one company." Never would I expect a Movie Industry exec to sound like a proponent for open-source... well, as long as it is not actually for his company's original works of authorship.
You may understand it as a copyright issue, perhaps because you can't get past somebody suing a "copyleft" organization, or that I advanced a plausible argument that gets CC hauled into court, or, who knows, perhaps your clear hatred of lawyers. However, as I stated numerous times in this thread, the issue is a "rights of publicity" issue and whether there is some duty on CC's part to inform users that the license doesn't involve publicity rights. Rights of publicity are not copyright issues, though they are often raised in connection with copyright and trademark issues.
You also spend a lot of time inserting snide comments regarding my ethics and intelligence into your posts which have nothing to do with healthy discourse on the subject, or the possibility that you might gain some insight you didn't have. You can attack my integrity, ethics, intelligence and whatever else you want in an effort to bully a "victory" in this argument, but that is a reflection on you, not me.
You appear to hold the mistaken thought that the GPL (or insert-open-source-license here) absolves you of responsibility for everything surrounding a product. That is just not the case and to repeat over and over again that "it is a copyright issue" and "I disclaim my rights in X and give nobody else any either" doesn't make Creative Commons immune from a lawsuit. This is especially true when the issue I raise is whether in CC's provision of the service (or product) of a copyright license, CC violates a duty of care by not clearly explaining what their licenses do and do not cover (such as rights of publicity). Your insistence on calling this a copyright issue is akin to the handyman whose only tool is a hammer. In that case, all the world is a nail.
You make an interesting point, though I would note that the fact that the work is published doesn't change the need for the release. I do not know exactly what CC license was used either and I would have to read the whole thing to tell you whether Virgin could have made any assumptions about using the photo based on the license the photographer granted. My first inclination is to say it is Virgin's responsibility to clear the work it wants to use since it is Virgin's desire to use it in a commercial context. Since it seems reasonable that somebody saw the photo on the guy's Flickr page, an e-mail asking him who the girl was would have been a start in the right direction.
With respect to the photographer, we really do not know what was said to the girl regarding the use of the photo. Maybe she and all other kids know that Counselor Bob (or whatever his name is) always takes photos at camp functions and posts them on his Flickr account. That, in my mind, is an implied license for the photographer to post her photo. While I am not aware of any case law on the point, it seems to me that with the ubiquity of camera phones, digital cameras, and video recorders, the courts may eventually acknowledge that permitting your photo to be taken is de facto consent for the photographer to use it for non-commercial purposes, such as on a Flickr, Facebook or MySpace page.
No, no, it is not about the license itself. It is about, with respect to Virgin, that they violated the girls right to publicity by using her name and likeness (in this case, likeness) in a commercial ad campaign. The CC license doesn't not implicate the use of the girl's likeness, just the scope to which others can use the photographer's work. Virgin would have been fine had they got the darn release from the girl, though I suspect that the Virgin grunt who made the decision to use that photo was confused about the "Attribution" aspect of the CC license, and probably didn't want to be bothered with tracking down the girl anyway.
With respect to CC, it comes down to whether they used due care in offering the licenses on the internet. The fact that it is free is irrelevant. There is no exception to using due care when you offer products and services for free. I think the that argument is reasonable enough to get you into court... whether you stay there with CC still as a Defendant, that is a different story.
You misunderstood me. It is malpractice for me to write a license without even looking at the work in question.
Malpractice is just another name for negligence... and everybody is held to a negligence standard whether they are driving a car or designing a website. The end question about CC's involvement in the case (in my mind anyway) is whether they are looked at as providing a service or providing a product. I have also read some other posts that suggest the Q&A aspect of their website is not to draft the license, but to direct people to the appropriate CC license. That may make enough of a difference to get CC out, but then of course you raise the issue of whether the FAQ is sufficient notice to those using the license about other issues to consider. Such warnings would be better on the same page as the license.
Maybe the message you referenced in the Flickr link caused the family to sue... who knows? I do know that that one post alone shows that people do not understand the "Attribution" aspect of the CC license. Attribution has to do with the author of the work, not the subjects in the work.
Your personal attack seemed unnecessary... I don't have to be desperate for work with cases like this one going around.;)
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Getting Windows to play nice with just about anything (including Linux). Isn't that the game?
I think it is more likely that Apple's lawyers pitched some offers to this couple to "make them go away" and couldn't work anything out. Then they just went about their business of setting up the service (this service through Starbucks was probably already well in the works - doubtful the "delay" was some tactic against this couple, though they might perceive it that way and allege it in the complaint). This patent seems silly - and in my mind, the longer it goes the worse the deal gets for the Plaintiff. Apple can counterclaim that it is an obvious "invention" and then not only does the couple have to prove infringement, but defend a valid patent - they might not even get in front of a jury on that one.
I don't know what I hate about capitalism more: patent trolls trying to make a buck off of big companies and raising the cost of products for everyone, or insensitive corporate clods who try to stomp on the little guy to keep the price of their products inflated. Either way, the consumer loses.
If you are going to remote places, you should check out a Solio Charger, which will charge your gadgets (at least, the phone, camera and other small stuff) using the sun.
My mother-in-law got me one for Xmas, and it is quite cool.
I was not aware of that, being from PA. As I thought about it after I posted, however, realize that MS pays sales tax on the products and services it buys for the general operation of the corporation... everything from TP for the bathrooms to copiers for the office. Not to mention the fact that, besides employing 35,000+ people, MS contributes indirectly to Washington's economy through the salaries and other benefits provided to those employees (at least the ones living in state).
I think in the end, Washington is getting a good cut of tax in various ways from MS (not to mention fees for licenses, zoning assessments, etc.), enough that Washington would rather have MS in the state then out. But like any other big MNC, MS really has the resources to work the tax system, and they do. IMO, that says more about the tax system itself than MS.
It is not like Washington isn't getting a cut out of MS. With 11.2 Million square feet or real estate, think of the property taxes? With 35,000+ employees, think of the payroll taxes?
Seriously, please don't tell me everybody on Slashdot is naive enough to think that companies like Red Hat, SUSE and Ubuntu aren't working the tax system either! Companies from a one man show to an MNC use this system to pay the least amount of tax they can. Nevada and Delaware have long maintained favorable tax treatment of corporations exactly for this purpose. If Washington wants in on this action, they can offer the same incentives to encourage MS to claim those profit in WA.
PJ as usual gives a good overview of what is going on. What she doesn't really spell out is that the mark needs to be viewed in reference to each one of these services. It is possible that CYBERLAW, when used in connection with some of these services, is descriptive, and not really generic. However, in this case, it may be so highly descriptive with any of these services that no amount of evidence will be sufficient to prove "secondary meaning" (i.e., acquired distinctiveness) - which just means that CYBERLAW for this guy will never become like INTERNATIONAL BUSINESS MACHINES has for IBM. In that sense, the difference between generic and descriptive is pretty moot.
It always concerns me when I see a laundry list of goods and/or services in an application, especially in this case, when most, if not all, of the services listed generally fall under the USPTO accepted identification of "legal services". That it is often a sign of an inexperienced trademark attorney.
More taxpayer dollars on utter nonsense. So the legislature wants to give ISPs immunity to help them spy domestically, and wants to screw coffee shops if they don't police their network. Ridiculous!
Well, we get what we vote for!
That is just silly... I spend too much time trying to think of what these inkblots look like, and some of them really don't look like anything.
Try a leet password generator... way easier to remember!
So what? His convictions for bank fraud are not (likely) some smoking gun in the patent case.
The conviction goes to the weight of his own testimony, not the merits of his case. Generally, convictions of criminal activity are only admissible if the convictions serve some probative value in the current case. If he obtained his patent lawfully, his conviction for bank fraud is not relevant to the case and can't be admitted to show that, since he committed bank fraud, he must be committing patent fraud.
In my state jurisdiction (PA), however, crimen falsi crimes (i.e., crimes of dishonesty) are admissible for purposes of impeaching a witnesses credibility. He won't be in state court though, he'll be in Federal court and FRE 608 and 609 will apply.
Hmm...
BSA refuses to disclose the source of their information; RIAA files ex parte sub poenas to get their information
BSA goes after small businesses because they have no leverage; RIAA goes after high school and college kids because they have no resources
BSA doubles or triples their settlement offer with respect to the original license costs; RIAA offers non-negotiable flat settlements which leave the defendant open to further lawsuits
Both are bullies, plain and simple.
That's what everybody said about Apple and the iPhone, and we all see how that is working out.
That is an interesting thought regarding the 13th amendment. I have never thought of that and certainly want to read more on it.
Thanks,
AJT
BZZZT. Once again this fallacy rears its head.
"Rights" are not "freedoms", but they are easy to confuse in light of the Constitutions reference to "rights". You have a right to nothing. You are certainly free to do lots of things: bake bread, drive to work, build a house. For most things, however, you are doing them at the whim of the government. The government can restrict how and when you make bread, the government can require you to get a driver's license before you use the road (and take it away), the government can force you to build your house a certain way or tax the land that it is on. The government limits your freedom every day under the Commerce Clause. In fact, the U.S. Supreme Court has provided the legislature broad latitude to restrict your freedoms providing the freedoms being restricted are not fundamental rights. That is called rational basis, and the Supreme Court's interpretation of "rational basis" is anything but rational in my mind since it allows the government to make any argument in order to meet the standard of review. The government would have been perfectly justified in keeping the internet a DoD project. What fundamental right would have been involved? First Amendment? Hardly! You can exercise your right to free speech with the telephone, the post office, the TV and the newspaper.
Your "right" to broadband internet access is subject to the contract you signed with your ISP. You don't agree, you don't have service. Ask the government to step in on that one...
I get what you are saying and being a part-time defense attorney, I agree with you. I tend to fall on the side of making the government work for its convictions. There are also, however, exceptions to the warrant rule... exigent circumstances being the most obvious. I am not saying that such exceptions apply to a blanket form of snooping, but the (Bush) government has tried to work around the warrant requirement and the courts have had to interpret these concepts in a digital context.
Snooping may be illegal, but there is little difference between the guy with a handheld gadget snooping your wi-fi connection and Verizon or Comcast doing it as it flies out your router (especially in light of their terms of use). Either way, you are up the proverbial creek without a paddle if it is the thief or a Comcast employee who does something "illegal" and discovers you are planning a terrorist attack (or cheating on your wife) and discloses the information to authorities. Damage done is damage done.
I don't necessarily agree that the internet isn't public simply because you have to pay for it to gain access (in your home). You can go to the library to have access for free and with the number of open wi-fi points in Panera, Starbucks or whatever, there are other places as well to get free access.
Maybe in Deadwood (which I never watched), ISPs are state actors, but not in the U.S.
I do however see the point you are trying to make. Unfortunately, I don't think the line is so easily draw with ISPs as to when they may be doing "state action" and when they are private companies asserting their position of strength over the consumer. At least, the world has come a long way since Marsh v. Alabama.
Well, first you make an assumption that all criminals, and all members of al-quaida are sophisticated enough to use encryption. In light of the crap I have seen posted on myspace, youtube, facebook and the like, that is clearly not the case.
Second, I was really making a comment on the interpreting the 4th amendment in the digital age. One of the ways that privacy, though not necessarily 4th amendment protected privacy, is "violated" is by snooping. The question is, where does the 4th amendment kick in? In light of the fact that the Internet is truly public, are we really getting it all wrong with analogizing Internet communications like regular mail.... perhaps they are more like cell phones, where any third-rate jerk who spend $50 on some technology can snoop?
Supposed the government grabs all communications as they leave your ISP? Do they need a warrant for that? Is it even a protected 4th amendment interest? I'd like to think that it is, but I don't know if it really all that much matters what the Terms of Use of your ISP are. The real question is how we are going to overall define what class of communications e-mail and the like fall into. I'd hope that we would err on the side of caution and make the government work to have access, but I see the arguments on the other side as well, some of which (i.e., don't all criminals use PGP anyway?), you have already cited.
In the end, however, I think your sealed envelope is more like plain e-mail. If your envelope is ripped, damaged, held up to the light or whatever and the Postal Service (or anybody) looks at the contents and sees what they believe is illegal activity, a warrant based on that info is not going to get tossed. Same as if some sysadmin, script kiddie or whoever is looking at packets as your e-mail goes through the system and somehow catches you are doing something illegal. If script kiddie gets a momentary conscience and sends your info to the police, there is no 4th amendment issue, though you may have a civil remedy (big deal once you are in jail!).
GPG or PGP are really closer to hand delivery (assuming these encryptions methods can remain ahead of the technology trying to break them).
ISPs are not government entities, though I get that in the digital age, the line of who is a state actor and what is a state action is less clear. So there is no 4th amendment protection against what the ISPs do with your data (though there may be some statutory or common law tort theories for privacy violations). ISPs can provide you service under any terms they see fit, and you certainly don't have a constitutional right to broadband internet access.
The far more impacting (and interesting) legal question is how the courts are going to view the 4th amendment (and others) in light of the way communications are stored for eternity on the internet. A traditional approach seems unwise, since the way ISPs word their terms of service make it so your data practically falls under the "open fields" doctrine for purposes of search and seizure. On the other end of the spectrum, I don't want police investigations entirely shut down just because we want heightened protections for data that we keep in essentially insecure methods.
If you are that worried about privacy, use PGP or GPG.
Isn't this what Linux and the GPL are all about? That is why Red Hat tolerates CentOS, because they agreed to the GPL when they created their own Linux distribution. As long as CentOS removes the front-end trademarks, it seems to me the GPL applies.
Doesn't Red Hat derive a benefit from CentOS. Maybe a business running CentOS (like that described in the article) gets over its head in configuring or managing a CentOS server, and the moves to RHEL with paid support.
Trademark rights are acquired by use, not necessarily by filing an application in your country's Trademark Office and definitely not by reserving a domain name. The USPTO has made it very clear that registering a domain name is meaningless to show use of a trademark in commerce. Trademarks must be used in commerce on goods or services. You do not just "get a trademark" on everything under the sun because you start using the name. That is because there is only confusion (or, the true standard, likelihood of confusion) if similar marks are used on similar goods or services. Now, there is an exception to that for "famous marks". Owners of famous marks can stop people from using similar marks on just about anything through a theory called "dilution". Recent amendments to the U.S. Trademark Act (a.k.a Lanham Act) make it very difficult to have a mark meet the standard of being "famous". Basically, you have to be a Coca-Cola, Apple Computer, or Hard Rock Cafe to get that kind of status (and even then, YOU have to prove it, you don't simply file something and "get it").
So, if he is using the trademark, I'd love to know on what? Registering a domain name and tossing up a pre-made "click through" ad page, in my mind, would not count. (He could argue that he is providing some type of advertising service, but there is a lot of room to argue on that one). Even then, if you are using the mark on " a blog providing news and information in the field of open source software", those two services are not really related. It would be the same as saying Delta Airlines and Delta Faucets (essentially identical marks) cannot co-exists. Obviously, they do and have for years.
Go see a trademark lawyer... that is obviously the smartest thing to do. Most will at least meet with you for a half-hour or an hour at no charge.
I think the most telling quote is "No one wants a proprietary system that benefits one company." Never would I expect a Movie Industry exec to sound like a proponent for open-source... well, as long as it is not actually for his company's original works of authorship.
You may understand it as a copyright issue, perhaps because you can't get past somebody suing a "copyleft" organization, or that I advanced a plausible argument that gets CC hauled into court, or, who knows, perhaps your clear hatred of lawyers. However, as I stated numerous times in this thread, the issue is a "rights of publicity" issue and whether there is some duty on CC's part to inform users that the license doesn't involve publicity rights. Rights of publicity are not copyright issues, though they are often raised in connection with copyright and trademark issues.
You also spend a lot of time inserting snide comments regarding my ethics and intelligence into your posts which have nothing to do with healthy discourse on the subject, or the possibility that you might gain some insight you didn't have. You can attack my integrity, ethics, intelligence and whatever else you want in an effort to bully a "victory" in this argument, but that is a reflection on you, not me.
You appear to hold the mistaken thought that the GPL (or insert-open-source-license here) absolves you of responsibility for everything surrounding a product. That is just not the case and to repeat over and over again that "it is a copyright issue" and "I disclaim my rights in X and give nobody else any either" doesn't make Creative Commons immune from a lawsuit. This is especially true when the issue I raise is whether in CC's provision of the service (or product) of a copyright license, CC violates a duty of care by not clearly explaining what their licenses do and do not cover (such as rights of publicity). Your insistence on calling this a copyright issue is akin to the handyman whose only tool is a hammer. In that case, all the world is a nail.
You make an interesting point, though I would note that the fact that the work is published doesn't change the need for the release. I do not know exactly what CC license was used either and I would have to read the whole thing to tell you whether Virgin could have made any assumptions about using the photo based on the license the photographer granted. My first inclination is to say it is Virgin's responsibility to clear the work it wants to use since it is Virgin's desire to use it in a commercial context. Since it seems reasonable that somebody saw the photo on the guy's Flickr page, an e-mail asking him who the girl was would have been a start in the right direction.
With respect to the photographer, we really do not know what was said to the girl regarding the use of the photo. Maybe she and all other kids know that Counselor Bob (or whatever his name is) always takes photos at camp functions and posts them on his Flickr account. That, in my mind, is an implied license for the photographer to post her photo. While I am not aware of any case law on the point, it seems to me that with the ubiquity of camera phones, digital cameras, and video recorders, the courts may eventually acknowledge that permitting your photo to be taken is de facto consent for the photographer to use it for non-commercial purposes, such as on a Flickr, Facebook or MySpace page.
No, no, it is not about the license itself. It is about, with respect to Virgin, that they violated the girls right to publicity by using her name and likeness (in this case, likeness) in a commercial ad campaign. The CC license doesn't not implicate the use of the girl's likeness, just the scope to which others can use the photographer's work. Virgin would have been fine had they got the darn release from the girl, though I suspect that the Virgin grunt who made the decision to use that photo was confused about the "Attribution" aspect of the CC license, and probably didn't want to be bothered with tracking down the girl anyway.
With respect to CC, it comes down to whether they used due care in offering the licenses on the internet. The fact that it is free is irrelevant. There is no exception to using due care when you offer products and services for free. I think the that argument is reasonable enough to get you into court... whether you stay there with CC still as a Defendant, that is a different story.
You misunderstood me. It is malpractice for me to write a license without even looking at the work in question.
Malpractice is just another name for negligence... and everybody is held to a negligence standard whether they are driving a car or designing a website. The end question about CC's involvement in the case (in my mind anyway) is whether they are looked at as providing a service or providing a product. I have also read some other posts that suggest the Q&A aspect of their website is not to draft the license, but to direct people to the appropriate CC license. That may make enough of a difference to get CC out, but then of course you raise the issue of whether the FAQ is sufficient notice to those using the license about other issues to consider. Such warnings would be better on the same page as the license.
Maybe the message you referenced in the Flickr link caused the family to sue... who knows? I do know that that one post alone shows that people do not understand the "Attribution" aspect of the CC license. Attribution has to do with the author of the work, not the subjects in the work.
Your personal attack seemed unnecessary... I don't have to be desperate for work with cases like this one going around. ;)