So what's up with the gratuitous intercapping of Microsoft in the story title? The summary doesn't use that, and Microsoft hasn't used that name for decades. Is it just a subtle way to mock Microsoft, or what?
In any event, it's unprofessional for a tech site that aims to be taken seriously. (Not that that's new at Slashdot.)
Of course, advertisers are probably less enthused....
I suspect advertisers would gladly give up some of the exposure they get from streaming video ads in exchange for more information about who sees their ads and how popular a certain ad is (or how many times it gets clicked-and-streamed). One of the eternal problems with television advertising is that advertisers have little idea how much their message is actually being heard and seen, and by whom; there are ratings, but they're a very crude measurement of the actual demographic impact of an ad. You can learn much more about your audience on the web -- age, income, sex, how long they see the ad, &c. This is a big reason why the web is becoming an important place for advertising.
This is exactly right: the Supreme Court is definitely *not* limited to constitutional questions, though those make up a good portion of its docket. The Court hears three types of cases (for the most part): constitutional ones; ones involving the interpretation of statutes when different circuits disagree; and ones involving important federal issues. But since patent cases are decided exclusively by one circuit, the Federal Circuit, the Court doesn't have any circuit splits to deal with. Every now and then the Court takes one or two important patent cases; otherwise the Federal Circuit would be pretty much unrestrained in setting patent policy.
(I am a lawyer, but I do not represent you, and this does not represent legal advice. Consult competent counsel.)
In this instance, there is a trial: the government has been sued, and there will be a trial to determine whether the COPA is constitutional or not. The subpoena is part of the discovery process before that trial.
(I am an attorney, but this post does not constitute legal advice. Consult competent legal counsel.)
As is usually the case when Slashdot discusses EULAs, there are many comments saying EULAs are not enforceable contracts. Actually, as a legal conclusion this is far from true. Many academics have questioned whether "shrink wrap" type licenses are binding, but the court cases pretty unanimously hold them to be binding. See for example ProCD, Inc v Zeidenberg, 86 F3d 1447 (7th Cir 1996).
From Judge Easterbrook's opinion:
In Wisconsin, as elsewhere, a contract includes only the terms on which the parties have agreed. One cannot agree to hidden terms, the [trial court] judge concluded. So far, so good--but one of the terms to which Zeidenberg agreed by purchasing the software is that the transaction was subject to a license. Zeidenberg's position therefore must be that the printed terms on the outside of a box are the parties' contract--except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties' choice in this [*1451] way? Vendors can put the entire terms of a contract on the outside of a box only by using microscopic type, removing other information that buyers might find more useful (such as what the software does, and on which computers it works), or both. The "Read Me" file included with most software, describing system requirements and potential incompatibilities, may be equivalent to ten pages of type; warranties and license restrictions take still more space. Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are [**10] unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike. See E. Allan Farnsworth, 1 Farnsworth on Contracts 4.26 (1990); Restatement (2d) of Contracts 211 comment a (1981) ("Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than the details of individual transactions."). Doubtless a state could forbid the use of standard contracts in the software business, but we do not think that Wisconsin has done so.
(I am a lawyer, but I am probably not licensed in your jurisdiction, and this does not constitute legal advice.)
Actually, as a legal conclusion this is far from true. Many academics have questioned whether "shrink wrap" type licenses are binding, but the court cases pretty unanimously hold them to be binding. See for example ProCD, Inc v Zeidenberg, 86 F3d 1447 (7th Cir 1996).
From Judge Easterbrook's opinion:
In Wisconsin, as elsewhere, a contract includes only the terms on which the parties have agreed. One cannot agree to hidden terms, the judge concluded. So far, so good--but one of the terms to which Zeidenberg agreed by purchasing the software is that the transaction was subject to a license. Zeidenberg's position therefore must be that the printed terms on the outside of a box are the parties' contract--except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties' choice in this [*1451] way? Vendors can put the entire terms of a contract on the outside of a box only by using microscopic type, removing other information that buyers might find more useful (such as what the software does, and on which computers it works), or both. The "Read Me" file included with most software, describing system requirements and potential incompatibilities, may be equivalent to ten pages of type; warranties and license restrictions take still more space. Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are [**10] unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike. See E. Allan Farnsworth, 1 Farnsworth on Contracts 4.26 (1990); Restatement (2d) of Contracts 211 comment a (1981) ("Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than the details of individual transactions."). Doubtless a state could forbid the use of standard contracts in the software business, but we do not think that Wisconsin has done so.
Actually, as a legal conclusion this is far from true. Many academics have questioned whether "shrink wrap" type licenses are binding, but the court cases pretty unanimously hold them to be binding. See for example ProCD, Inc v Zeidenberg, 86 F3d 1447 (7th Cir 1996).
From Judge Easterbrook's opinion:
In Wisconsin, as elsewhere, a contract includes only the terms on which the parties have agreed. One cannot agree to hidden terms, the judge concluded. So far, so good--but one of the terms to which Zeidenberg agreed by purchasing the software is that the transaction was subject to a license. Zeidenberg's position therefore must be that the printed terms on the outside of a box are the parties' contract--except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties' choice in this [*1451] way? Vendors can put the entire terms of a contract on the outside of a box only by using microscopic type, removing other information that buyers might find more useful (such as what the software does, and on which computers it works), or both. The "Read Me" file included with most software, describing system requirements and potential incompatibilities, may be equivalent to ten pages of type; warranties and license restrictions take still more space. Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are [**10] unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike. See E. Allan Farnsworth, 1 Farnsworth on Contracts 4.26 (1990); Restatement (2d) of Contracts 211 comment a (1981) ("Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than the details of individual transactions."). Doubtless a state could forbid the use of standard contracts in the software business, but we do not think that Wisconsin has done so.
So is it your claim that because the goods are sold in interstate commerce, state governments don't have the power to tax? The commerce clause doesn't work that way. It's a very complicated subject (I'm working on a law review article about part of it), but in a nutshell, the commerce clause means that the federal government has the power to regulate it, and can preempt state laws in the area, but that doesn't mean states have no power. States can tax goods sold in interstate commerce until Congress decides to take control of the subject. Which Congress certainly has not done, either directly or through implication.
The Supreme Court is not "taking up" the case. Justice O'Connor granted an interim stay to consider whether a longer one is necessary. Today, she dismissed that stay and declined to impost a longer one.
Whether the AP takes up the jurisdictional question in the case is another issue, yet to be decided on, and even if it does take it up, it is just that, solely a jurisdictional issue.
>They probably can't do that, not legally. VALinux is a public company now, isn't it? Public >companies have a duty to their shareholders to make the most money possible. To stop >selling to a valuable client just because you didn't like what that client was doing would be a >breach of fiduciary duty. The VALinux directors could end up in court over that.
This is not correct. Public companies have no legal obligation to do ANYTHING to make money. George Carlin has an interesting analogy to this: General Motors could make more money by, say, selling crack. Yet this is considered by our society to be unacceptable, and so they do not do so, even though it could improve their return for their shareholders. Even in cases where it's not a matter of legal problems, companies can and do all the time make decisions for humanitarian or other nonfinancial reasons, such as not doing business with companies that do business in countries that support slavery. Ford Motor Company stopped buying parts from Johnson Controls when the latter company hired replacement workers during a strike. They didn't want to support a company that didn't support its union workers.
>Umm... are the Slashdot readers the only ones that realize that this is not a ruling?
The Findings of Fact are indeed a ruling. They are a ruling on the facts of the case as seen by the judge. They are not a ruling on the conclusions one draws from those facts, on Microsoft's liability. They are not a ruling on Conclusions of Law or on corrective measures, but they are a ruling on Findings of Fact.
Once again, Slashdot has reacted in its typical reactionary manner. This order is NOT an abuse by Bill Clinton. It's not even a significant event, really. Here's why.
All this order does is establish a group to study whether or not there could be effective laws to help prevent some of the illegality that already exists on the internet, and whether or not these laws exist. (See the examples cited in the order: fraud [travel scams, prescription drug scams, fake ecomerce sites, etc], child pornography, drug trafficking, etc.) Most of the time, these laws already exist; if they do not, any new laws would still have to go through the existing lawmaking process - the house, the senate, a signature by the president, and, if there's a possibility of a constitutional violation, the court system.
This group has NO lawmaking powers on its own.
No one is talking about banning nudity or encryption or anything like that. Besides, the federal courts have been very reluctant to uphold any anti-liberty net laws so far; it's unlikely they would suddenly start approving them.
The US government sponsors hundreds of such commissions every year; this is nothing new. And likely, nothing will ever come out of it. Don't worry. The sky is not falling.
Once again, Slashdot has reacted in its typical reactionary manner. This order is NOT a, abuse by Bill Clinton. It's nto even a significant event, really. Here's why. All this order does is establish a group to study whether or not there could be effective laws to help prevent some of the illegality that already exists on the internet, and whether or not these laws exist. (See the examples cited in the order: fraud [travel scams, prescription drug scams, fake ecomerce sites, etc], child pornography, drug trafficking, etc.) Most of the time, these laws already exist; if they do not, any new laws would still have to go through the existing lawmaking process - the house, the senate, a signature by the president, and, if there's a possibility of a constitutional violation, the court system. This group has NO lawmaking powers on its own. No one is talking about banning nudity or encryption or anything like that. Besides, the federal courts have been very reluctant to uphold any anti-liberty net laws so far; it's unlikely they would suddenly start approving them. The US government sponsors hundreds of such commissions every year; this is nothing new. And likely, nothing will ever come out of it. Don't worry. The sky is not falling. Roger Ford
Apple can win this lawsuit despite losing to Microsoft, for one basic reason: the two lawsuits are based on entirely different legal reasoning.
Apple lost the Microsoft suit because they had signed a contract saying that Microsoft could use some of the features of the Mac OS in a Windows product. They have of course not signed any such document with Future Power.
There are two legal tactics Apple could use, according to computer and intellectual property law specialist Curtis E. Karnow. The first is "trade dress," which covers the distinctive appearance of a product and its association with a certain company in the minds of consumers. The classic example of this is the distinctive appearance of the Coca Cola bottle. Trade dress is very difficult to prove, however, since you have to prove that consumers could be confused.
The other tactic Apple could take is dilution of trademark. From MacWeek:
" `Apple could charge Future Power with trademark dilution, which is much easier to prove than trade dress,' Karnow said. Proof of trademark dilution requires no substantive documentation of any confusion customers might experience when they see a product that looks much like the iMac."
Apple certainly has the iMac designs trademarked (and probably has design patents too), so this would be a relatively easy case to win.
For more information, see: http://macweek.zdnet.com/1999/06/27/epower.html http://macweek.zdnet.com/1999/06/27/imacalikethu rs.html
Slashdot Mirror
So what's up with the gratuitous intercapping of Microsoft in the story title? The summary doesn't use that, and Microsoft hasn't used that name for decades. Is it just a subtle way to mock Microsoft, or what?
In any event, it's unprofessional for a tech site that aims to be taken seriously. (Not that that's new at Slashdot.)
Of course, advertisers are probably less enthused....
I suspect advertisers would gladly give up some of the exposure they get from streaming video ads in exchange for more information about who sees their ads and how popular a certain ad is (or how many times it gets clicked-and-streamed). One of the eternal problems with television advertising is that advertisers have little idea how much their message is actually being heard and seen, and by whom; there are ratings, but they're a very crude measurement of the actual demographic impact of an ad. You can learn much more about your audience on the web -- age, income, sex, how long they see the ad, &c. This is a big reason why the web is becoming an important place for advertising.
This is exactly right: the Supreme Court is definitely *not* limited to constitutional questions, though those make up a good portion of its docket. The Court hears three types of cases (for the most part): constitutional ones; ones involving the interpretation of statutes when different circuits disagree; and ones involving important federal issues. But since patent cases are decided exclusively by one circuit, the Federal Circuit, the Court doesn't have any circuit splits to deal with. Every now and then the Court takes one or two important patent cases; otherwise the Federal Circuit would be pretty much unrestrained in setting patent policy.
(I am a lawyer, but I do not represent you, and this does not represent legal advice. Consult competent counsel.)
In this instance, there is a trial: the government has been sued, and there will be a trial to determine whether the COPA is constitutional or not. The subpoena is part of the discovery process before that trial.
(I am an attorney, but this post does not constitute legal advice. Consult competent legal counsel.)
From Judge Easterbrook's opinion:
(I am a lawyer, but I am probably not licensed in your jurisdiction, and this does not constitute legal advice.)From Judge Easterbrook's opinion:
(IAN[Y]AL)From Judge Easterbrook's opinion:
(IAN[Y]AL)So is it your claim that because the goods are sold in interstate commerce, state governments don't have the power to tax? The commerce clause doesn't work that way. It's a very complicated subject (I'm working on a law review article about part of it), but in a nutshell, the commerce clause means that the federal government has the power to regulate it, and can preempt state laws in the area, but that doesn't mean states have no power. States can tax goods sold in interstate commerce until Congress decides to take control of the subject. Which Congress certainly has not done, either directly or through implication.
[IAN(Y)AL. I am a mere law student.]
The Supreme Court is not "taking up" the case. Justice O'Connor granted an interim stay to consider whether a longer one is necessary. Today, she dismissed that stay and declined to impost a longer one.
See this AP story.
Whether the AP takes up the jurisdictional question in the case is another issue, yet to be decided on, and even if it does take it up, it is just that, solely a jurisdictional issue.
>companies have a duty to their shareholders to make the most money possible. To stop
>selling to a valuable client just because you didn't like what that client was doing would be a
>breach of fiduciary duty. The VALinux directors could end up in court over that.
This is not correct. Public companies have no legal obligation to do ANYTHING to make money. George Carlin has an interesting analogy to this: General Motors could make more money by, say, selling crack. Yet this is considered by our society to be unacceptable, and so they do not do so, even though it could improve their return for their shareholders. Even in cases where it's not a matter of legal problems, companies can and do all the time make decisions for humanitarian or other nonfinancial reasons, such as not doing business with companies that do business in countries that support slavery. Ford Motor Company stopped buying parts from Johnson Controls when the latter company hired replacement workers during a strike. They didn't want to support a company that didn't support its union workers.
RAF
>Umm... are the Slashdot readers the only ones that realize that this is not a ruling?
The Findings of Fact are indeed a ruling. They are a ruling on the facts of the case as seen by the judge. They are not a ruling on the conclusions one draws from those facts, on Microsoft's liability. They are not a ruling on Conclusions of Law or on corrective measures, but they are a ruling on Findings of Fact.
All this order does is establish a group to study whether or not there could be effective laws to help prevent some of the illegality that already exists on the internet, and whether or not these laws exist. (See the examples cited in the order: fraud [travel scams, prescription drug scams, fake ecomerce sites, etc], child pornography, drug trafficking, etc.) Most of the time, these laws already exist; if they do not, any new laws would still have to go through the existing lawmaking process - the house, the senate, a signature by the president, and, if there's a possibility of a constitutional violation, the court system.
This group has NO lawmaking powers on its own.
No one is talking about banning nudity or encryption or anything like that. Besides, the federal courts have been very reluctant to uphold any anti-liberty net laws so far; it's unlikely they would suddenly start approving them.
The US government sponsors hundreds of such commissions every year; this is nothing new. And likely, nothing will ever come out of it. Don't worry. The sky is not falling.
Roger Ford
Once again, Slashdot has reacted in its typical reactionary manner. This order is NOT a, abuse by Bill Clinton. It's nto even a significant event, really. Here's why. All this order does is establish a group to study whether or not there could be effective laws to help prevent some of the illegality that already exists on the internet, and whether or not these laws exist. (See the examples cited in the order: fraud [travel scams, prescription drug scams, fake ecomerce sites, etc], child pornography, drug trafficking, etc.) Most of the time, these laws already exist; if they do not, any new laws would still have to go through the existing lawmaking process - the house, the senate, a signature by the president, and, if there's a possibility of a constitutional violation, the court system. This group has NO lawmaking powers on its own. No one is talking about banning nudity or encryption or anything like that. Besides, the federal courts have been very reluctant to uphold any anti-liberty net laws so far; it's unlikely they would suddenly start approving them. The US government sponsors hundreds of such commissions every year; this is nothing new. And likely, nothing will ever come out of it. Don't worry. The sky is not falling. Roger Ford
Apple can win this lawsuit despite losing to Microsoft, for one basic reason: the two lawsuits are based on entirely different legal reasoning.
u rs.html
Apple lost the Microsoft suit because they had signed a contract saying that Microsoft could use some of the features of the Mac OS in a Windows product. They have of course not signed any such document with Future Power.
There are two legal tactics Apple could use, according to computer and intellectual property law specialist Curtis E. Karnow. The first is "trade dress," which covers the distinctive appearance of a product and its association with a certain company in the minds of consumers. The classic example of this is the distinctive appearance of the Coca Cola bottle. Trade dress is very difficult to prove, however, since you have to prove that consumers could be confused.
The other tactic Apple could take is dilution of trademark. From MacWeek:
" `Apple could charge Future Power with trademark dilution, which is much easier to prove than trade dress,' Karnow said. Proof of trademark dilution requires no substantive documentation of any confusion customers might experience when they see a product that looks much like the iMac."
Apple certainly has the iMac designs trademarked (and probably has design patents too), so this would be a relatively easy case to win.
For more information, see:
http://macweek.zdnet.com/1999/06/27/epower.html
http://macweek.zdnet.com/1999/06/27/imacaliketh
-Roger Ford
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