Civil liberties: Fundamental individual rights, such as freedom of speech and religion, protected by law against unwarranted governmental or other interference.
Civil rights: The rights belonging to an individual by virtue of citizenship, especially the fundamental freedoms and privileges guaranteed by the 13th and 14th Amendments to the U.S. Constitution and by subsequent acts of Congress, including civil liberties, due process, equal protection of the laws, and freedom from discrimination.
In other words, civil liberties correspond to 'natural law' rights, or human rights -- rights you are born with. You have civil liberties in spite of the State. Civil rights are rights granted because of State involvement, like the right to vote.
Don't worry. Whichever way the Supreme Court rules, in twenty years, all the old bullshit patents will have expired. We'll only have to deal with all the new bullshit patents.
"An anonymous reader asks..." Nice one. If you're going to try free marketing feedback from a large population of geeks, the first thing you need to do is be honest about who you are. We hate obscurity and we hate marketers -- you could at least make a peace offering by naming yourself.
If you've got a problem with what I've said, you're welcome to reply. I signed my digital name to this post.
"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent." 35 U.S.C. 271(a) (exclusive rights emphasized).
"The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. 283.
If a patent holder wishes to interrupt the business of an alleged infringer, there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product.
There is: it's called a jury trial. When someone is violating rights given you by the State (as opposed to natural rights), you should be able to have the State command them to stop. You sue the alleged infringer in court, and the judge and jury decide whether or not there is infringement. This is the entire purpose of the court system, to decide who prevails in a dispute between two parties over a legal issue. It's really that simple.
As for negotiating settlements, that usually happens before the law suit begins. Sometimes, the parties will wait to hear the judge's preliminary ruling, or see which way he or she is going, because it gives them leverage in the negotiations. Most patent suits settle before reaching a verdict; however, the court system is the ultimate arbiter of disputes, not settlement. Settlements fall through all the time. The court system is not allowed to 'fail', i.e. refuse to render a verdict.
If I understand it correctly, Congress is considering changing it from first to patent to first to file.
I believe you are referring to the Patent Reform Act of 2005[1]. This legislation would effectively eviscerate the novelty bars to being granted a patent based on the invention date.[2]
So they are either changing the very definition of inventor in a way that is clearly nonsensical, that is, that the first person to file for a patent is the inventor even if someone else had already done it months earlier.
Except that pretty much every other country works on a first-to-file system. In fact the Philippines just switched to that system. On top of which, the US can use the bill as a carrot in international trade negotiations. I.e., the US ambassador says to $COUNTRY: "We'll bring our patent system in line with yours, if you give us X."
The only fair and honest approach is to either grant patent protection to multiple inventors or to grant patent protection only to the very first inventor.
The problems with first-to-invent are well-documented. For one thing, it causes tremendous transaction costs in case of a dispute.[3] Currently, under a process known as an interference, two inventors battle each other in a steel cage (i.e., in front of the USPTO's Board of Patent Appeals and Interferences) to see which one invented first. Litigation costs are outrageous, since sometimes millions of dollars are at stake. Under a first-to-file system, the situation is resolved by someone walking to the records room and comparing the dates on two pieces of paper. Another well-known problem with first-to-invent is that, until there is a dispute, you'll never know if someone else got there first. They might not hear about your invention until you're 15 years in to profits, then they come along and submarine you. First-to-file brings much more certainty to the system. It also makes it much faster to get a patent, since you don't have to do nearly as extensive a prior art search.
What happens if someone invents something and doesn't patent it? After a period of time, he can no longer file for a patent.
Correct. Under the current system, once an invention is "in public use or on sale in this country", that starts a one-year clock ticking. After that year, the inventor can no longer apply for a patent.[4] The system gives inventors a choice: patent, or trade secret, but not both. A first-to-file system gives the inventor an incentive to file immediately, favoring a policy of the public disclosure that comes from patent publication, over the non-disclosure of trade secrets.
But if someone else comes along and independently invents the same thing, can they not still apply for a patent for the same invention?
Yes, they can. A second inventor can claim patent rights over the first one, provided the first inventor "abandoned, suppressed, or concealed" his invention.[5] However, the second inventor is also out of luck if the invention was disclosed in a printed publication anywhere in the world before the later of the second invention date or one year prior to the filing date.[6] The Patent Reform Act retains this restriction, in Section 3, at least as to the filing date.
Also, the wording of the Constitution makes it clear that an invention has only one inventor.
The Constitution states: "The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."[7] The plurals are used throughout. The Framers could have said "each author", but they didn't. However, the usual interpretation is that there is a one-to-one relationship between the 'inventing entity' and the patent.[8]
Currently, if a company knows or thinks that someone else is w
I wonder what it would be like if everyone who invented the same device could receive their own patents as long as their applications were filed before any were published.
In order to lock out competitors, everyone who invents something would simply publish their invention immediately. Many university researchers already do this. This is good policy, in that more applications are published more quickly, but bad because people can start working around the patents quicker -- in fact, before they're even filed. That's a reason the patent office holds off on publishing for 18 months. Overall, the policy damages the patent incentive, because you're now giving people 18 months less protection.
I certainly can't see any logical reason why anyone who invented something independently of another should be deprived of the fruits of their own effort.
This is the 'sweat of the brow' policy justification. Justice O'Connor thoroughly repudiated it for copyright in a landmark case[1]. The problem I see with this argument is that it is arguably unconstitutional. "Congress shall have power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[2] The policy reason for congressional power to issue patents and copyrights in the first place is given in the same sentence that authorizes that power. The Constitution does not grant Congress any power to reward hard work by handing out patents. Therefore, arguably, any patent policy passed by Congress or the USPTO (by delegation) specifically to reward hard work, while not advancing science, exceeds Congress' constitutional powers.
Your 'sweat of the brow' policy would do precisely that -- it grants one person a patent for an invention which is identical to another person's invention. That second patent grant doesn't advance science.
Notice that my argument doesn't extend beyond copyrights and patents. You can get rewarded for effort in lots of other places.
I agree with you -- public credibility attacks are a problem. Almost all of what you just said could be repeated verbatim when describing any public attacks, made on TV, radio, the local telephone pole, posted on campus billboards, or on the side of buses. My point is that almost none of what you said has anything to do with the Internet, privacy, anonymity, or registering users, which was the subject matter of the (apparently now defunct) bill.
The problem with the bill is that it doesn't attack this problem effectively. If you want to attack public slander, you have to look at where it's coming from, how much is attributable to the various sources, how much it would cost to go after each source, and how difficult each source would be to take down. I would argue, in fact, that dirty campaigning on TV reaches a much wider audience than it does on Internet message boards. Why not go after the people who are slinging mud on TV? Or radio? Or anywhere else? You'd get a much bigger impact, and you don't have to compromise anyone's anonymity to do it. The bill only went after website operators, and it would have required them to take actions that arguably violate the Constitution.
It's been said that the best remedy for bad speech is good speech. Or, if someone has actually said something untrue about you and injured your career, you can sue them in court for defamation. That's the purpose of the court system, and it doesn't matter where the false statement was made. If what they said is true and you've been hurt, that's just tough luck. If your argument is that you can't sue rich people and win, you might have a point. That is a genuine problem with the legal system, but the discussion of the solution to that problem goes well beyond the scope of the current topic of defamation.
I know of one case where someone was accused of not using a shopping cart when shopping! Four month investigation...
This is a problem with law enforcement not having enough to do. Which is a pretty good problem to have. You try and pull this crap in any large city like LA, and the cops would laugh at you. The LAPD have to handle way too many rapes, gang slayings, and child prostitutes to deal with "serious social problems" like anonymous finger-pointing.
Which is simply to say, if you put these sort of accusations in perspective, they don't justify violating privacy rights that people are granted by the Constitution.
So tell me, is it in the public interest to allow this sort of behavior?
Of course not, that's why we have laws against defamation. But laws and enforcement are two separate branches of government. By design, even. Yes, it sucks that a dedicated public servant had his life ruined. So catch the people who did it, but by a method less restrictive than invading the privacy of lots of people who have nothing to do with the defamation.
But don't take my word for it. Here's what Justice Stevens had to say about it:
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U.S. at 64. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995).
Have you ever seen an anonymous letter stapled to a telephone pole, slandering someone? You'd like to be able to sue for defamation, but you can't. That's life, it sucks, deal with it. You can't just tack on the words "on the internet" and change things. Of course, that's what this bill is trying to do -- impose an affirmative duty to watch each and every telephone pole and identify the posters by legal name and address.
Now although it's not the main issue, economics should be addressed. Sure, the cost is spread out over all the website operators and not consolidated in the phone company, but the same cost is being imposed nonetheless. Every website operator will now have to 'hire guards' (databases, coding special HTML pages, access restrictions, etc). This makes hosting a public forum more expensive. You might even call it a 'tax' on free speech.
Both from a rights perspective and an economic perspective, this bill stinks.
The question the court is facing is whether you can copyright an idea, a conjecture.
Well, for starters:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. 102(b).
As for "lifting the central theme" from a fictional work, the test for infringement in the US is generally derived from Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976) (the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events, and characterization).
Copyright in historical research, however, has been a little more tricky. The 2nd and 7th Circuits have a minor split on the question of how much protection, if any, historical research should get. The tension lies between disallowing an author to 'take exclusive possession of history', yet encouraging historians to do research. See Hoehling v. Universal City Studios, 618 F.2d 972, 978 (2d Cir. 1980) (interpretations of historical events are not copyrightable, repudiating Toksvig, a 7th Circuit holding) and Nash v. CBS, 899 F.2d 1537, 1542 (7th Cir. 1990) ("it is a mistake to . . . grant[] the first author a right to forbid all similar treatments of history [or to] grant[] the second author a right to use anything he pleases of the first's work"). After discussing incentives and 'sweat of the brow', the 7th Circuit found that there was no infringement, the same outcome as in Hoehling. Both courts agree that to avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots. Nash, 899 F.2d at 1542 (citing Hoehling, 618 F.2d at 978).
My guess is that if this case were tried in the US, there wouldn't be any infringement.
They ruled according to the law, as written. Don't blame the judge, it's the law that's bad. And the law is bad because it overlooks the damage caused by the loss of personal information. I'm not surprised -- the issue was probably framed in the wrong terms. Look at the medical industry -- they have HIPAA. Private medical information gets insane protections. In this capitalist society, it's high time financial information got the same protection. Granted, that's the supposed purpose of Chapter 94 of Title 15, United States Code (US law that deals with commerce and trade). However, if you actually ready that Chapter, they're only interested in limiting voluntary disclosures (opt-outs, telemarketing, and affiliate sales programs). There's nothing at all about negligence or involuntary disclosures.
I say that financial information should be protected from negligent disclosures as well. Any business, financial or otherwise, should be required to protect financial information (properly defined, but including credit card numbers and bank account numbers), subject to strict liability. There should be a private right of action, with a presumption of causation if you suffer false credit card charges within, say, 30 days of the breach. To balance what I foresee as tremendous opposition from the business sector, the law should lessen the length of time businesses have to keep private data on file. Heck, most businesses should probably delete credit card numbers from their files immediately after the transaction clears. The only businesses that can't, use rolling payments or frequent transactions (pay-per-use services). There might be an exception for them. The big hurdle there would be rewriting the tax laws, but Bush said he was going to do that to make life easier for businesses, didn't he?
Write your Senators and Reps. Especially if you live in a Red state. The GOP is in power now, it's time we used them properly.
Yes, at one time, we actually had reporters who cared about the news. It stopped for the same reason everything else is going to hell: corporate greed.
It used to be that major media outlets funded news departments at a loss, because they still thought that being honest and thorough was important to the American ethos. Once they made news departments responsible for turning a profit, you started to get sensationalism and editorialism, rather than true investigative journalism. It's a lot less expensive to have talking heads argue over why someone did what they did than actually go out there and find out.
Next time you watch the news, ask yourself: are they presenting facts, or are they presenting viewpoints? I don't watch Fox 'News', because nine tenths of it is editorializing and not reporting facts. CNN is slightly better on this count, but they're showing a disturbing trend towards fluff pieces, rather than actual substantive issues that really affect people.
On a side note, one of the last real, honest journalists was Peter Jennings. Every one of his reports was pure gold. He never gave his opinion, he presented the opinions of the people who the facts affected. He could get interviews with Israelis and Palestinians alike, because people simply didn't question his motives. Ask yourself if Bill O'Reilly, Tucker Carlson, or Jack Cafferty could get interviews like that. Until American news departments stop editorializing, the news will continue to suck.
Um, if the police are getting called to a house for domestic violence 5 times a week, and they can't pin something on someone, then either (1) the police are galactically incompetent, (2) the man is a certifiable genius, or (3) the woman should stop covering for the slime. (There's always your randoms who just like to fuck with the police, but I'm leaving them out of it.) I think it's pretty easy to figure out which is which from the circumstances. You don't need a camera to do that sort of police work. Just tell the lady next time she calls, that unless she's going to press charges, they aren't going to show up.
The police are out there putting their lives on the line every day. They have real problems to deal with, they aren't relationship counselors. For everyone who thinks I'm a heartless bastard because battered woman syndrome is a real problem -- write your city council, or your congressman, to get the laws changed.
If someone wants to protect their property, they can buy their own camera, and give the tape to the police. The police can do the same thing to their parking lot, if they want, but the can keep their damn cameras out of my yard.
It's Sony and Michael Jackson, 50-50. And MJ owned the rights outright before 1995. The point was that MJ has made plenty of music, and isn't someone who bought the rights without any artistic merit themselves.
Am I to understand that you are saying the movie industry would order the assassinations of authors whose works they wish to adapt to the movie screen? Because I think that's what I'm hearing.
There shouldn't be any link to term of life.
I didn't say protection for the life of the author was automatic, I said it was a limit. As in, upper bound. 28 years could be longer than the life of the author, in which case it is too long. I suppose there is a disincentive to older authors against creating new works, but as they say, you can't take it with you.
As for paying to keep copyrights: the copyrights that are actually renewed will be (1) owned by people who can afford to pay, and (2) valuable. And if a copyright is valuable enough, (1) won't be a problem for long. In other words, the valuable copyrights will still be in the hands of the rich. In fact, the more valuable the copyright, the longer it stays out of the PD (up to the statutory limit, of course). End result: lots more less valuable copyright works enter the PD sooner. I suppose you could call that a win. In the meantime, the entire market of copyrighted works gets taxed, lessening the incentive to create. This goes against the effectiveness of the copyright 'deal' in the first place.
I'm not saying it's not a good idea. Heck, it's probably better than what we have now. All I'm saying is that it does have some warts.
Prior to copyright law content creators had to keep creating to feed themselves
Propaganda. Prior to copyright law? You mean, before the Statute of Anne in 1710, when the government was so unable to control the publishing industry that they had to pass a law giving the rights to the authors? At that time, the authors had no real rights. Or do you mean before the monopoly granted to the Stationer's Company in 1556, when older authors could remember a time before the printing press? Before that, the church owned all knowledge for five hundred years, and "content creators" like Galileo Galilei were censored and arrested.
It's a pleasant illusion we tell ourselves, that things used to be OK in the 'good old days'. The problem is that the publishing companies still have too much power, despite the Statute of Anne, despite the Copyright Act of 1976. The authors are supposed to have the power, dammit. They are supposed to be rewarded for their efforts. Yet industry contracts take away all their power, because too many authors and musicians cheaply sell that which kings and congresses have given them.
The solution is quite simple, but would destroy the profit-making power of entire industries so it will never happen. Make copyright unalienable. Make it so you can't sell your copyright. Make it so only the author(s) of a work can own the work. The incentive that copyright is supposed to provide exists only in primary creators, not in third parties looking to make a dollar.
A natural consequence is to limit copyright terms to the lifetime of the authors. Once they die, rewards will give their inheritors a disincentive to further create. They may not even have the 'creative spark'. There is no reasonable incentive policy in line with the Constitution's plain language and the intent of its drafters, that rewards someone other than the content creator for his or her work.
Does anyone know what the max key length is now if it is? I think it was something like 128 bits (that the government could crack) around the time of PGP.
This information can be found from the Bureau of Export Administration's regulations, in particular, the Commerce Control List (CCL), 15 C.F.R. 774. The alphabetical index lists "encryption software" as deisgnation "5D002", and the numerical index places 5D002 under "Information Security - Software". A hop over to that section says the following:
Encryption software is controlled because of its functional capacity, and not because of any informational value of such software; such software is not accorded the same treatment under the EAR as other "software"; and for export licensing purposes, encryption software is treated under the EAR in the same manner as a commodity included in ECCN 5A002.
5A002.a.1 includes equipment designed or modified to use "cryptography" employing analog principles when implemented with digital techniques.
a.1.a. A "symmetric algorithm" employing a key length in excess of 56-bits; or
a.1.b. An "asymmetric algorithm" where the security of the algorithm is based on any of the following:
a.1.b.1. Factorization of integers in excess of 512 bits (e.g., RSA);
a.1.b.2. Computation of discrete logarithms in a multiplicative group of a finite field of size greater than 512 bits (e.g., Diffie- Hellman over Z/pZ); or
a.1.b.3. Discrete logarithms in a group other than mentioned in 5A002.a.1.b.2 in excess of 112 bits (e.g., Diffie-Hellman over an elliptic curve);
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Don't worry. Whichever way the Supreme Court rules, in twenty years, all the old bullshit patents will have expired. We'll only have to deal with all the new bullshit patents.
Read U.S. Pat. No. 6,526,440. Seriously, it's quite informative.
The answer is in the question -- stop making bad robot movies!
I'll take that bet. Oh wait... never mind.
If you've got a problem with what I've said, you're welcome to reply. I signed my digital name to this post.
"The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. 283.
If a patent holder wishes to interrupt the business of an alleged infringer, there should be a fixed set of things that must occur before the alleged infringer must cease the patented activity or product.
There is: it's called a jury trial. When someone is violating rights given you by the State (as opposed to natural rights), you should be able to have the State command them to stop. You sue the alleged infringer in court, and the judge and jury decide whether or not there is infringement. This is the entire purpose of the court system, to decide who prevails in a dispute between two parties over a legal issue. It's really that simple.
As for negotiating settlements, that usually happens before the law suit begins. Sometimes, the parties will wait to hear the judge's preliminary ruling, or see which way he or she is going, because it gives them leverage in the negotiations. Most patent suits settle before reaching a verdict; however, the court system is the ultimate arbiter of disputes, not settlement. Settlements fall through all the time. The court system is not allowed to 'fail', i.e. refuse to render a verdict.
"The nice thing about standards is that there are so many to choose from." -- Andrew S. Tanenbaum, author of Minix.
I believe you are referring to the Patent Reform Act of 2005[1]. This legislation would effectively eviscerate the novelty bars to being granted a patent based on the invention date.[2]
So they are either changing the very definition of inventor in a way that is clearly nonsensical, that is, that the first person to file for a patent is the inventor even if someone else had already done it months earlier.
Except that pretty much every other country works on a first-to-file system. In fact the Philippines just switched to that system. On top of which, the US can use the bill as a carrot in international trade negotiations. I.e., the US ambassador says to $COUNTRY: "We'll bring our patent system in line with yours, if you give us X."
The only fair and honest approach is to either grant patent protection to multiple inventors or to grant patent protection only to the very first inventor.
The problems with first-to-invent are well-documented. For one thing, it causes tremendous transaction costs in case of a dispute.[3] Currently, under a process known as an interference, two inventors battle each other in a steel cage (i.e., in front of the USPTO's Board of Patent Appeals and Interferences) to see which one invented first. Litigation costs are outrageous, since sometimes millions of dollars are at stake. Under a first-to-file system, the situation is resolved by someone walking to the records room and comparing the dates on two pieces of paper. Another well-known problem with first-to-invent is that, until there is a dispute, you'll never know if someone else got there first. They might not hear about your invention until you're 15 years in to profits, then they come along and submarine you. First-to-file brings much more certainty to the system. It also makes it much faster to get a patent, since you don't have to do nearly as extensive a prior art search.
What happens if someone invents something and doesn't patent it? After a period of time, he can no longer file for a patent.
Correct. Under the current system, once an invention is "in public use or on sale in this country", that starts a one-year clock ticking. After that year, the inventor can no longer apply for a patent.[4] The system gives inventors a choice: patent, or trade secret, but not both. A first-to-file system gives the inventor an incentive to file immediately, favoring a policy of the public disclosure that comes from patent publication, over the non-disclosure of trade secrets.
But if someone else comes along and independently invents the same thing, can they not still apply for a patent for the same invention?
Yes, they can. A second inventor can claim patent rights over the first one, provided the first inventor "abandoned, suppressed, or concealed" his invention.[5] However, the second inventor is also out of luck if the invention was disclosed in a printed publication anywhere in the world before the later of the second invention date or one year prior to the filing date.[6] The Patent Reform Act retains this restriction, in Section 3, at least as to the filing date.
Also, the wording of the Constitution makes it clear that an invention has only one inventor.
The Constitution states: "The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."[7] The plurals are used throughout. The Framers could have said "each author", but they didn't. However, the usual interpretation is that there is a one-to-one relationship between the 'inventing entity' and the patent.[8]
Currently, if a company knows or thinks that someone else is w
In order to lock out competitors, everyone who invents something would simply publish their invention immediately. Many university researchers already do this. This is good policy, in that more applications are published more quickly, but bad because people can start working around the patents quicker -- in fact, before they're even filed. That's a reason the patent office holds off on publishing for 18 months. Overall, the policy damages the patent incentive, because you're now giving people 18 months less protection.
I certainly can't see any logical reason why anyone who invented something independently of another should be deprived of the fruits of their own effort.
This is the 'sweat of the brow' policy justification. Justice O'Connor thoroughly repudiated it for copyright in a landmark case[1]. The problem I see with this argument is that it is arguably unconstitutional. "Congress shall have power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[2] The policy reason for congressional power to issue patents and copyrights in the first place is given in the same sentence that authorizes that power. The Constitution does not grant Congress any power to reward hard work by handing out patents. Therefore, arguably, any patent policy passed by Congress or the USPTO (by delegation) specifically to reward hard work, while not advancing science, exceeds Congress' constitutional powers.
Your 'sweat of the brow' policy would do precisely that -- it grants one person a patent for an invention which is identical to another person's invention. That second patent grant doesn't advance science. Notice that my argument doesn't extend beyond copyrights and patents. You can get rewarded for effort in lots of other places.
[1] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[2] U.S. Const. art. I sec. 8.
The problem with the bill is that it doesn't attack this problem effectively. If you want to attack public slander, you have to look at where it's coming from, how much is attributable to the various sources, how much it would cost to go after each source, and how difficult each source would be to take down. I would argue, in fact, that dirty campaigning on TV reaches a much wider audience than it does on Internet message boards. Why not go after the people who are slinging mud on TV? Or radio? Or anywhere else? You'd get a much bigger impact, and you don't have to compromise anyone's anonymity to do it. The bill only went after website operators, and it would have required them to take actions that arguably violate the Constitution.
It's been said that the best remedy for bad speech is good speech. Or, if someone has actually said something untrue about you and injured your career, you can sue them in court for defamation. That's the purpose of the court system, and it doesn't matter where the false statement was made. If what they said is true and you've been hurt, that's just tough luck. If your argument is that you can't sue rich people and win, you might have a point. That is a genuine problem with the legal system, but the discussion of the solution to that problem goes well beyond the scope of the current topic of defamation.
This is a problem with law enforcement not having enough to do. Which is a pretty good problem to have. You try and pull this crap in any large city like LA, and the cops would laugh at you. The LAPD have to handle way too many rapes, gang slayings, and child prostitutes to deal with "serious social problems" like anonymous finger-pointing.
Which is simply to say, if you put these sort of accusations in perspective, they don't justify violating privacy rights that people are granted by the Constitution.
Of course not, that's why we have laws against defamation. But laws and enforcement are two separate branches of government. By design, even. Yes, it sucks that a dedicated public servant had his life ruined. So catch the people who did it, but by a method less restrictive than invading the privacy of lots of people who have nothing to do with the defamation.
Have you ever seen an anonymous letter stapled to a telephone pole, slandering someone? You'd like to be able to sue for defamation, but you can't. That's life, it sucks, deal with it. You can't just tack on the words "on the internet" and change things. Of course, that's what this bill is trying to do -- impose an affirmative duty to watch each and every telephone pole and identify the posters by legal name and address.
Now although it's not the main issue, economics should be addressed. Sure, the cost is spread out over all the website operators and not consolidated in the phone company, but the same cost is being imposed nonetheless. Every website operator will now have to 'hire guards' (databases, coding special HTML pages, access restrictions, etc). This makes hosting a public forum more expensive. You might even call it a 'tax' on free speech.
Both from a rights perspective and an economic perspective, this bill stinks.
Well, for starters:
As for "lifting the central theme" from a fictional work, the test for infringement in the US is generally derived from Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976) (the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events, and characterization).Copyright in historical research, however, has been a little more tricky. The 2nd and 7th Circuits have a minor split on the question of how much protection, if any, historical research should get. The tension lies between disallowing an author to 'take exclusive possession of history', yet encouraging historians to do research. See Hoehling v. Universal City Studios, 618 F.2d 972, 978 (2d Cir. 1980) (interpretations of historical events are not copyrightable, repudiating Toksvig, a 7th Circuit holding) and Nash v. CBS, 899 F.2d 1537, 1542 (7th Cir. 1990) ("it is a mistake to . . . grant[] the first author a right to forbid all similar treatments of history [or to] grant[] the second author a right to use anything he pleases of the first's work"). After discussing incentives and 'sweat of the brow', the 7th Circuit found that there was no infringement, the same outcome as in Hoehling. Both courts agree that to avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots. Nash, 899 F.2d at 1542 (citing Hoehling, 618 F.2d at 978).
My guess is that if this case were tried in the US, there wouldn't be any infringement.
I wouldn't worry about it, the beavers are just jealous.
I say that financial information should be protected from negligent disclosures as well. Any business, financial or otherwise, should be required to protect financial information (properly defined, but including credit card numbers and bank account numbers), subject to strict liability. There should be a private right of action, with a presumption of causation if you suffer false credit card charges within, say, 30 days of the breach. To balance what I foresee as tremendous opposition from the business sector, the law should lessen the length of time businesses have to keep private data on file. Heck, most businesses should probably delete credit card numbers from their files immediately after the transaction clears. The only businesses that can't, use rolling payments or frequent transactions (pay-per-use services). There might be an exception for them. The big hurdle there would be rewriting the tax laws, but Bush said he was going to do that to make life easier for businesses, didn't he?
Write your Senators and Reps. Especially if you live in a Red state. The GOP is in power now, it's time we used them properly.
It used to be that major media outlets funded news departments at a loss, because they still thought that being honest and thorough was important to the American ethos. Once they made news departments responsible for turning a profit, you started to get sensationalism and editorialism, rather than true investigative journalism. It's a lot less expensive to have talking heads argue over why someone did what they did than actually go out there and find out.
Next time you watch the news, ask yourself: are they presenting facts, or are they presenting viewpoints? I don't watch Fox 'News', because nine tenths of it is editorializing and not reporting facts. CNN is slightly better on this count, but they're showing a disturbing trend towards fluff pieces, rather than actual substantive issues that really affect people.
On a side note, one of the last real, honest journalists was Peter Jennings. Every one of his reports was pure gold. He never gave his opinion, he presented the opinions of the people who the facts affected. He could get interviews with Israelis and Palestinians alike, because people simply didn't question his motives. Ask yourself if Bill O'Reilly, Tucker Carlson, or Jack Cafferty could get interviews like that. Until American news departments stop editorializing, the news will continue to suck.
The police are out there putting their lives on the line every day. They have real problems to deal with, they aren't relationship counselors. For everyone who thinks I'm a heartless bastard because battered woman syndrome is a real problem -- write your city council, or your congressman, to get the laws changed.
If someone wants to protect their property, they can buy their own camera, and give the tape to the police. The police can do the same thing to their parking lot, if they want, but the can keep their damn cameras out of my yard.
It's Sony and Michael Jackson, 50-50. And MJ owned the rights outright before 1995. The point was that MJ has made plenty of music, and isn't someone who bought the rights without any artistic merit themselves.
Am I to understand that you are saying the movie industry would order the assassinations of authors whose works they wish to adapt to the movie screen? Because I think that's what I'm hearing.
There shouldn't be any link to term of life.
I didn't say protection for the life of the author was automatic, I said it was a limit. As in, upper bound. 28 years could be longer than the life of the author, in which case it is too long. I suppose there is a disincentive to older authors against creating new works, but as they say, you can't take it with you.
As for paying to keep copyrights: the copyrights that are actually renewed will be (1) owned by people who can afford to pay, and (2) valuable. And if a copyright is valuable enough, (1) won't be a problem for long. In other words, the valuable copyrights will still be in the hands of the rich. In fact, the more valuable the copyright, the longer it stays out of the PD (up to the statutory limit, of course). End result: lots more less valuable copyright works enter the PD sooner. I suppose you could call that a win. In the meantime, the entire market of copyrighted works gets taxed, lessening the incentive to create. This goes against the effectiveness of the copyright 'deal' in the first place.
I'm not saying it's not a good idea. Heck, it's probably better than what we have now. All I'm saying is that it does have some warts.
Um, do you know who owns the publishing rights to most of the Beatles' songs?
Propaganda. Prior to copyright law? You mean, before the Statute of Anne in 1710, when the government was so unable to control the publishing industry that they had to pass a law giving the rights to the authors? At that time, the authors had no real rights. Or do you mean before the monopoly granted to the Stationer's Company in 1556, when older authors could remember a time before the printing press? Before that, the church owned all knowledge for five hundred years, and "content creators" like Galileo Galilei were censored and arrested.
It's a pleasant illusion we tell ourselves, that things used to be OK in the 'good old days'. The problem is that the publishing companies still have too much power, despite the Statute of Anne, despite the Copyright Act of 1976. The authors are supposed to have the power, dammit. They are supposed to be rewarded for their efforts. Yet industry contracts take away all their power, because too many authors and musicians cheaply sell that which kings and congresses have given them.
The solution is quite simple, but would destroy the profit-making power of entire industries so it will never happen. Make copyright unalienable. Make it so you can't sell your copyright. Make it so only the author(s) of a work can own the work. The incentive that copyright is supposed to provide exists only in primary creators, not in third parties looking to make a dollar.
A natural consequence is to limit copyright terms to the lifetime of the authors. Once they die, rewards will give their inheritors a disincentive to further create. They may not even have the 'creative spark'. There is no reasonable incentive policy in line with the Constitution's plain language and the intent of its drafters, that rewards someone other than the content creator for his or her work.
This information can be found from the Bureau of Export Administration's regulations, in particular, the Commerce Control List (CCL), 15 C.F.R. 774. The alphabetical index lists "encryption software" as deisgnation "5D002", and the numerical index places 5D002 under "Information Security - Software". A hop over to that section says the following: