Re:NuSphere clearly violating 15 USC � 1125(d)
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MySQL & Nusphere
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· Score: 2
Not necessarily. The first question to answer would be with which country/court jurisdiction lays. Everything beyond that is pure speculation.
Is this disputed? They both filed lawsuits already -- what jurisdictions did they use?
Re:NuSphere clearly violating 15 USC � 1125(d)
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MySQL & Nusphere
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· Score: 3
No, they aren't. They are claiming that their agreement with Monty and David grant them the right to use the trademark in various ways, including within a domain name. The statute you cite doesn't prevent a trademark owner from granting such rights.
OK, if this is NuSphere's argument, then they'll bear the burden of proof to substantiate it in the courtroom. Otherwise, this will be an example of "If we agreed you could use it, we wouldn't be suing you."
But your point is well taken -- these are disputed issues of fact as to what was agreed upon. I expect it will take a judge about 3 minutes to read the black letter language of the agreement and determine who is right.
I find it difficult to believe that MySQL would ever agree to let NuSphere use mysql.org . I find it almost impossible to believe that they would have done so and not realized it.
NuSphere clearly violating 15 USC � 1125(d)
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MySQL & Nusphere
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· Score: 4
MySQL.org clearly violates 15 USC 1125(d) , specifically 1125 (d)(1)(A)(ii)(I) . The term "MySQL" is a trademark of MySQL AB. Using a domain name of someone else's trademark was made illegal by the Anticybersquatting Consumer Protection Act of 1999.
Regardless of whatever complaints NuSphere has about getting the stiff arm when trying to submit code, they have unclean hands until they fix their clear trademark violation.
I would like to remind everybody that there were similar accusations of stiff arming associated with the release of Interbase by Borland. The approach taken there was to create the Firebird project by forking. Without trying to endorse NuSphere's complaints, even if they are true, the fork and rename plan is the honorable way to procede when you don't feel the project owner is fair. Until NuSphere fixes their blatent legal violations, their other arguments are just sorry excuses.
MySQL.org clearly violates 15 USC 1125(d) , specifically 1125 (d)(1)(A)(ii)(I) . Using a domain name of someone else's trademark was made illegal by the Anticybersquatting Consumer Protection Act of 1999.
It also appears that MySQL.org is clearly violating the GPL by distributing a modified version without source code for the mods.
Bzzzzzt! Nope. Sketcher is a registered trademark of Fractal Design corp. if I recall correctly (or whoever bought them out). It's a raster graphics product, not vector, but it's sufficiently similar to qualify as trademark dilution.
Actually Fractal Designs abandonded it according to this: trademark 74362832
There is a CAD program with this name though: trademark 74318782 , but this was registered while the other one was in effect, as it shouldn't be a problem.
I believe this offer should be accepted. It is very important that the open source community not be viewed as trying to fight every battle however hopeless. Adobe's claim has some merit and all the counter arguments for KIllustrator are based on technicalities.
We don't need to fight this battle, and if we simply accept their settlement then the conflict goes away.
I suggest "sKetcher".
Also, all open source projects should think seriously about trademarking their names.
The deregulation was put into place during a Republican administration with the full support of the industries being deregulated.
Oh, right -- blame Pete Wilson. Last I checked it was the legislature and not the governor that writes the laws. It went into force on Davis's watch because it was passed by a democratic legislature.
California currently has democratic governor, democratic legislature, two democratic senators, and mostly democratic representatives. It voted heavily for Clinton and Gore in the last 3 elections. Yet as soon as something bad happens, they're blaming Bush and the previous governor. Odd that one is before and one is after the problem started.
And of course the industry loves partial deregulation. Why wouldn't they? When the government is stupid enough to give you a non-free marketplace advantage, you take it. I wish I'd bought their stock - it's probably outperformed the NASDAQ pretty well.
people can feel that the weather is changing. They can see pictures of penguins dying in Antarctica. They read that skin cancer rates are rising.
They can? Where I live (South-Central Texas) it's been one of the mildest summers I can remember. Also, I think you are confused -- penguins in Antarctica and skin cancer are purported consequence of the ozone hole letting in UV. This has nothing to do with global warming.
The release of CO2 is associated with the burning of fossil fuels. Fossil fuel are a finite resource and eventually they will all be burned and humans with be forced to develop alternative energy sources like nuclear and solar power. It really doesn't matter if we cut energy consumption if we don't develop alternative energy sources -- eventually all fossil fuels will be burned, no matter what.
The only question is how much power (political power) the government will try to usurp by exploiting the issue along the way. I believe the free market must solve this problem. Government cannot create energy nor reduce demand.
California illustrates this. The same stupid democrats who caused the problem there by partial deregulation now want to put price caps in place. (Why do you get more control after you prove that you are incompetent?).
The only moral solution is to let the market set prices. High energy prices will drive market based energy solutions like small scale energy production and alternative power sources. If Californians suffer along the way then good -- that is what they voted for. Personally, the higher prices the better from my point of view. CA has the lowest per capita energy consumption because of the mild costal climate in LA, SF, and yet they still can't meet their own needs. They dumped all their energy production on other states to "protect the environment" (screw the other states). Now they complain when the other states charge them, but I'm glad. Fools and their money are soon parted, to the good of the economy.
1. a similar product to their product with similar functions Killustrator is not a "product" as concerns Dr. Sattler. Dr. Sattler is simply exercising his first amendment rights without attempting to sell anything. Perhaps it is a product for Red Hat, but they're not being sued.
2. has a similiar interface to thier product Trademark does not protect functionality.
3. Is obviously designed as a freeware / low cost competitor to an existing product thus damaging and undermining their business and product line Trademark does not protect you from competition.
4. Damaging to their existing copyright and causing confusion in the marketplace
Trademark does not protect copyright, and Killustrator does not infringe Adobe's copyrights in any way. It is legal to "cause confusion in the marketplace" in noncommercial ways, although KIllustrator isn't exactly confusing. Eg: FUD is legal, while fraud is not.
5. Also under the GPL they can go thru the code and check that no where is there any evidence of code resue or copy True. Openness and confusion are enemies, and trademark law rides entirely on likelyhood of confusion.
6. From memory the fact that it is a non profit or for profit company makes no difference when it comes to copyright and trademark violation Probably true. What company is targetted here? Answer: A university who happens to employ a professor who spends his free time publishing free software. The university's relation to Killustrator is hardly a commercial one.
I believe that years of corporate orientation have lead us to expect that every activity is commercial. It isn't. Dr. Sattler maintains a "free" body of expression. The fact that companies often do the same thing does not mean that Dr. Sattler's activity is commercial. The fact that an activity replaces commercial activity does not make it commercial.
Under US law, trademark protection against dilution is defined by 15 USC 1225. Germany's law is probably somewhat similar. I suspect that Adobe's trademark is registered in the US.
After reading the law (something I'd recommend for most Slashdotters), it seems to me that the claim of trademark dilution is somewhat iffy.
The key shortcoming is that 15 USC 1225(c)(1) only authorizes an injuction against "another person's commercial use in commerce of a mark or trade name" (emphasis added). Moreover, per 1225(c)(4)(B) "noncommercial use of a mark" is not actionable.
I believe that a strong case can be made that KIllustrator is not a commercial use by the good Dr. Sattler.
Even if it is somehow commercial use, then by 1225(c)(2), injunctive relief is the FULL extent of relief unless the person "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark". The idea that Dr. Sattler did this seems rather absurd to me.
Thus under US law, I would doubt this case would go anywhere at all.
Dude, GPL can be considered "misuse of copyright" since it FORCES me into licensing scheme chosen by somebody else.
Dude, you are free to not use GPL software at all, so dude, you aren't "forced" into anything, and in fact the only way that, dude, you could possibly use GPL'd code is by choosing to use it yourself, so dude, it's not a licence "chosen by somebody else", but rather one offered by them and chosen by you.
Misuse of copyright means leveraging the copyright to enforce anticompetitive business practices. Ask Red Hat if Mandrake's use of the GPL was anticompetitive when they took Red Hat's work and resold it as is. The GPL is charged pro-competitive on steroids.
This may be a text-book case of "misuse of copyright" where one uses intellectual property rights in an anticompetitive way. Here Microsoft is using its copyright to excluded competition (sort of anti-tying competing products).
The common remedy, by the way, when there is a conclusion of misuse is that the government refuses to enforce the abuser's copyright until the anticompetitive behavior is fixed.
Perhaps various authors of GPL software should coordinate to file antitrust cases in a few dozen different jurisdictions. I think there are probably some firms gearing up to bring private MS antitrust suits who might be interested in doing these kinds of filings on a contingency basis. Basically, some big firm could take the "best" case forward in the hopes that the precedent will turn all the others into good investements.
It seems like Adobe has a reasonable, yet not air tight claim that KIllustrator is confusingly similar to Illustrator, given that both are software tools in the vector drawing arena.
OK, so what happens now? Either the KDE component will need to hire some lawyers and fight, or they need to change their name, or they could simply pay the fee.
Perhaps a little barter arrangement can be made in return for a trademark licence. I suppose KDE could offer Adobe free use, source code, and even distribution of the program;-] but I don't think Adobe will be very keen, you see they've already got one.
Since the name is somewhat derivitive, I'd recommend changing it as path with the moral high ground. Perhaps they should have a contest to propose the new name. Also, I think all prominent open source projects should trademark their names as a precaution.
Here's a few alternate names I thought of (post your ideas):
sKetch
Kanvas
Killus
KVector
GeometricK
Spam is free speech, people! When you prevent someone from telling people about their issue or product, what ever it might be, in the United States, you are restriting their Constitutionally-guarenteed rights to free speech. (emphasis added)
This is false. The Constitution prevents THE GOVERNMENT from regulating such speech. It does not prevent me or any private third party from doing so, nor does it obligate me or them to use my private resources to forward on an endless supply of mindless chatter. And it most certainly does not stop us from sharing information on who we think is irresponsible enough to privately block.
In fact, it is an exercise of free speech (and property rights) for me or them to put a privately owned mail server on the internet and choose not to forward mail designated by whatever source I choose to. If you don't like it, too bad. You are free to start routing your own mail with your own resources, but I'm free to block whatever mail I feel like from being transferred by my private property.
Everyone should have a right to tell people about events. They do, but not with the assistance of private resources of those who oppose their message or editorial style.
There is one wrench that this case has stuck in the works: the fact that Yahoo does operate a physical site in France for its French-based services. This is why the French court was able to place such a restriction in the first place. However, I do believe that the French court cannot control what Yahoo does on it's non-French servers, nor force Yahoo to block French users from using certain parts of them.
You are right. People make this too complicated. France can order Yahoo-France to do anything it wants, including to stop doing buisiness until Yahoo-USA stops hosting Nazi memoribilia auctions or stops hosting auctions altogether or stops allowing people named Bob to work there. About all that Yahoo can do is cry "gosh, France, you suck".
Yahoo can flip France a big fat finger if and only if they are ready to shut down shop in France. If they do this, then what is France going to do to enforce their ruling? Invade the US? I doubt it.
The US case is completely irrelevant, because by the same token, unless the US is ready to back it up militarily (as we did in Panama) a US judge cannot change the fact that a foreign government is sovereign in its territory, even if it uses that sovereignty to implement tyranical rules. Since the idea of the US invading France is hard to imagine (and a bad idea under the NATO treaty), Yahoo-USA can give up Yahoo-France or it can comply with French law as define by the French legal system, regardless of what any US judge says.
ME: the web page design serves as a specification.
YOU: No, it serves as a suggestion. As I said in another thread, you have no control over the users' browser, and never have. Get over it.
Legally, HTML is copyrighted expression that is treated as software literary work. The very act of rendering it produces a derivitive work, just as compiling or interpreting any source code produces a derivitive work. This is copyright infringement unless explicitly authorized, however the HTML itself explicitly authorizes display consistent with its commands, which contrary to your implied assertion does not create a unique formatting requirement, but rather authorizes a whole range of derivitive renderings. Smart-tags are not in that range.
You can play wordgames if you like and call it a "suggestion", but please state where you get the legally needed explicit copyright authorization to render it in any way other than consistent with the "suggested" display. Choosing not to load images, whether by filtering ads based on the linked location or simply not providing that functionality in the browser (lynx) does not produce a rendering that is inconsistent with the HTML. Tags can be rendered in a variety of ways including not rendered, but the untagged text cannot be changed. The same thing applies to not executing javascript.
Your examples all share this trait: the browser chooses to render only a subset of the specified HTML commands. That is entirely different than rendering something not expressed.
Go write "I have no control over other people's browsers" on the blackboard until you get it.
In fact I do have a control over other peoples browsers: under the copyright Act, I have a legal cause of action against anyone who uses a browser to commit copyright infringement against me. I can petition a Court for an injunction to force compliance, and if that is ignored, eventually the government will send people with guns to get compliance to the injunction by force.
Go write "17 USC 106(2)" on the board until you get it.
Some people have made much of the fact that html is designed to allow different presentations. This may be true, but the web page design serves as a specification. Presentations of the page must vary within those bounds, other wise a derivitive work is created. In general, creation of a derivitive work is copyright infringement unless it is authorized by the copyright owner. An "opt out" strategy is not availing -- an explicit affirmation is required by law.
There can still be a defense of fair use. For example, if I write a script to add links and run it in my own browser, I haven't done anything that affects the market value of the page, because my affect as a single user is insignificant. Also such a personal script is noncommercial in nature.
Not so for Microsoft. They have been found to be a monopoly specifically in the browser market. As such, when they change your web page, it will be changed for the masses and it will alter the statistics significantly of your click patterns, which clearly affects your ability to profit from you copyrighted content.
Additionally, Microsoft is attempting to profit from this feature, whereas an individual user is probably not doing so. Thus two critical factors of the fair use equation weigh against smart-tags, however this does not mean that all modification of web pages are infringing. Fair use is a case by case analysis.
Appellate courts are used to dealing with upholding the rights of a lot more contemptible folks than hackers.
The higher in the system you go, the more sensitive judges are to the fact that you must protect even the scumbags in order for rights to have meaning. Consider the Brandenberg case the judges asked about. It upheld the rights of KKK members to advocate racially motivated violence. Against that backdrop, hackers look like Mother Theresa.
That a person might use a computer program to do something does not by itself add "nonspeech" elements to the text.
That a person "might?" Where does "might" come from? I'm not sure where these EFF guys have been, but most programs actually get run much more frequently than they are used for interpersonal communication. I'm not saying that programs aren't used for communication - they are. It's just not their primary purpose.
The question is not whether non-speech elements exists when "programs actually get run", but whether DeCSS itself has non-speech elements. You are confounding the program as an entitiy with the action of running it. Any conduct that exists as part of the latter act is done by the programs user, not the author.
Maybe running programs is a "non-speech element", though most devices that ordinary computers control are speech devices (monitor, printer, speakers), so I won't even cede the point that running a program has non-speech elements. Does running the "authorized" DVD player program have non-speech elements? All it does is show the movie - an action that results in pure expression. Why does that change if the player program isn't "authorized", after all we are talking about non-infringing use of the movie (private performance).
Culture clash: biologists and programmers
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Bioinformatics
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· Score: 5
There are two factors that I think are driving the emergence of bioinformatics: culture and data explosion.
When I was in college, the computer science majors "hung out" with the math majors, the physics majors, and the electrical engineering majors. Biologists hung out with the less analytical crowd. Obviously these are generalizations, but I believe a lot of "the problem" is that culturally biologists just don't have very good computer skills. Suddenly it is the case that biology as a science absolutely requires these skills. If you were one of the few (and some do exist) that broke the stereotype, you need to be starting a company about now. Otherwise the race is on for the biologists to learn programming and the CS-math-physics types to learn biology.
Second is the fact that biologists are drowning in data. Projects like the human genome project are producing lots of data, but thats just the tip of the iceberg. There is already an exploding market in high throughput assays and measurement computation. The result is that the field as a whole simply isn't managing it's data well. Often groups store there data in extremely crappy formats. Custom text formats, asn.1, etc... I'm an Oracle programmer, so I expect the kind of solutions that Banks and.com's use: big iron data warehouses running heavy duty RDBMS's like oracle, DB2. Nope. I have yet to come across a single bioinformatics project that has a clue about data modelling. It's actually much above average to use a database at all, let alone well. If I was head of the NIH, you can bet that Freshmen biologists would take a class in SQL starting immediately.
When you combine the two factors: culture and data innundation, very strange things start to happen. The data infrastructure just isn't there and worse a lot of people just don't realize it. Biology is presenting problems that require massive data warehousing solutions to a field whose main data background is calculating p-values to show the effect of a drug is significant.
"Judge: Well, maybe you can enjoin them from putting it on the Internet. That's an idea. "
Ummm. Copyright infringement is ALREADY illegal. The defense needs to emphasize that judicial nixation on 1201(a)(2) doesn't suddenly legalize copyright infringement. It also doesn't even impact 1201(b)(1) which is aimed at circumvention tools primarily aimed at copyright infringement as opposed to mere access.
The open source community interaction with law and politics to date has been almost completely reactive. Typically some company or governement institution has or is about to do something draconian before we are able to mobilize. Sometimes we get there in time, sometimes not. Examples are: DMCA, UCITA, and hundreds of software patents, Microsoft's embrace and extend campaign of the week,... the list goes on.
What can we do as a community to be more effective in protecting ourselves. I'm someone who has joined the EFF, written letters to the copyright office, participated heavily on Openlaw, and written letters to my Congressmen. Many of us are involved in these ways, but somehow we've got to take it up a notch. What's the next step?
Currently, there's no Open Source industry group that deals with legislative issues, although Webbink says Red Hat's efforts have been received well both on Capitol Hill and in Maryland's statehouse. Red Hat worked with the Open Source Initiative to craft the change in Maryland's UCITA.
For God's sake, why don't they create this! Right now we rely on the EFF to represent our interests to lawmakers. This needs to be supplemented with a group with a business perspective, for a one-two punch. The open source movement needs to start doing more PR work with legislatures. Red Hat's work here is great, but this has to be about more than just one company. The open source community is offereing tremendous value to consumers, citizens, and corporations that use our software and pay for our services. We need to move our community into the mainstream in the minds of the Congress critters.
Especially with Microsoft making it clear they are going to bash us as "intelletual property destroyers", we need to proactively present our pro-business face to lawmakers and set the record straight. Open source brings programmers, software companies, and software consumers (corporate and indiviual) together in a community that is focused on minimizing waste in the global software market, especially that caused by artificially created barriers. This makes sense from an individual rights perspective and it makes sense from a business perspective, once you focus on optimizing the creation of value within the entire system. Voluntary cooperation out of mutual self-interst for mutual gain is the EPITOME of the American way. In fact, this is little more than a statement of the concept of trade.
No party engaging in trade in a modern society creates products solely for self use. We are all dependend on trading those goods we create for something created by someone else. Open source is simply a different value proposition within software trade. Recognizing the cumulative value in compounding innovation, the open source value proposition says that instead of trading your IP rights for money, you trade those rights for permanent access to the valuable intellectual property contributions of others whose work extends your own.
IP is valuable precisely to the extent it is useful. To trade IP you create for access to the useful IP of others is in fact a profound statement about the value of use for software and intellectual property generally. The open source movement not only deeply respects intellectual property, it is in fact is critically dependent on it, since it is only by the open source copyright licences that we are secure in our ability to work together without fear of being ripped off.
In sum, the idea that open source destroys IP or stiffles trade is not just wrong, it is profoundly wrong-headed. Work released in an open source licence IS intellectual property. What open source will destroy is the barriers to directly trading IP for IP. For companies that survive by trading IP by the drop directly to consumers in exchange for cash, this is no doubt troubling because it paradigmatically challenges their value proposition. As with any situation where different value propositions exist, the market will choose how to distribute total resources among the two rival models to provide the system that is globally most efficient. That is the american way, and we embrace it.
Ocne a copyright expires on a DVD (in, what, 70+ years form now?), they then expect the circumvention devices to surface.
No, it's not 70 years from now. Many DVD's were made for old movies, for example Charlie Chaplin. Often the studios add something new so that they can get a new copyright, but this only protects the new elements. You can use DeCSS to obtain elements of the digital work that are in the public domain as of right NOW.
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
A computer program expresses a method. It expresses functional ideas, much as a recipe, scientific experimient instructions, or musical score does. The actual expression depends on the program, so the question is sort of like asking what a musical score expresses - a general answer is very generic, but any specific instance of such communication will be much more rich. Here, DeCSS expresses the functional ideas that demonstrate that CSS is insecure in a specific tangible way. The First Amendment protects such content even against a Congress bent on stiffling that particular idea from dissemination.
Softwares expression generally is equivalent to standard english sentences with the understood 2nd person subject ("You"), followed by the verb given by the instruction, and a direct object that tells what the operation occurs on. A decryption program, for example, generally expresses a mathematical forumla, and are often an implementation of functional ideas learned from reading mathematical literature. Computer books are filled with programs and form a major sections at most bookstores precisely because they are expressive. Programs are copyrighted because they are expressive. Computer programs are not part of any "conduct" until and unless they are executed. Instead, a program merely communicates functional ideas that might be exectued or might be read by the legions of programmers actually do read and understand programming languages.
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
The question is misplaced. Fair use admits no bright line rules (See Leibovitz v Paramount, opinion by judge Newman) A rule that said "No fair uses exist for high quality digital works" is therefore impossible to assert. Instead, fair use is an affirmative defense to copying as chosen and performed by the alleged infringeer. If the four factors weigh in favor of fair use, then fair use exists. To abstractly argue this can never be the case for digital movies requires proving a negative, which is impossible and counter to copyright jurisprudence.
We'll answer the question anyway by providing just one example, that happens to be relevent to DeCSS: "Interoperability" is one class of fair use that clearly has a well-established existance in copyright jurisprudence. Using DeCSS to allow interoperability of DVD's with alternative operating systems and/or MPEG-2 players is done for personal, noncommercial use, and increases rather than decreases the potential market for the copyrighted works in their high-quality digital form. Linux users will now buy DVD's, if allowed.
Slashdot Mirror
Not necessarily. The first question to answer would be with which country/court jurisdiction lays. Everything beyond that is pure speculation.
Is this disputed? They both filed lawsuits already -- what jurisdictions did they use?
No, they aren't. They are claiming that their agreement with Monty and David grant them the right to use the trademark in various ways, including within a domain name. The statute you cite doesn't prevent a trademark owner from granting such rights.
OK, if this is NuSphere's argument, then they'll bear the burden of proof to substantiate it in the courtroom. Otherwise, this will be an example of "If we agreed you could use it, we wouldn't be suing you."
But your point is well taken -- these are disputed issues of fact as to what was agreed upon. I expect it will take a judge about 3 minutes to read the black letter language of the agreement and determine who is right.
I find it difficult to believe that MySQL would ever agree to let NuSphere use mysql.org . I find it almost impossible to believe that they would have done so and not realized it.
MySQL.org clearly violates 15 USC 1125(d) , specifically 1125 (d)(1)(A)(ii)(I) . The term "MySQL" is a trademark of MySQL AB. Using a domain name of someone else's trademark was made illegal by the Anticybersquatting Consumer Protection Act of 1999.
Regardless of whatever complaints NuSphere has about getting the stiff arm when trying to submit code, they have unclean hands until they fix their clear trademark violation.
I would like to remind everybody that there were similar accusations of stiff arming associated with the release of Interbase by Borland. The approach taken there was to create the Firebird project by forking. Without trying to endorse NuSphere's complaints, even if they are true, the fork and rename plan is the honorable way to procede when you don't feel the project owner is fair. Until NuSphere fixes their blatent legal violations, their other arguments are just sorry excuses.
MySQL.org clearly violates 15 USC 1125(d) , specifically 1125 (d)(1)(A)(ii)(I) . Using a domain name of someone else's trademark was made illegal by the Anticybersquatting Consumer Protection Act of 1999.
It also appears that MySQL.org is clearly violating the GPL by distributing a modified version without source code for the mods.
Actually Fractal Designs abandonded it according to this: trademark 74362832
There is a CAD program with this name though: trademark 74318782 , but this was registered while the other one was in effect, as it shouldn't be a problem.
You can check trademarks here
I believe this offer should be accepted. It is very important that the open source community not be viewed as trying to fight every battle however hopeless. Adobe's claim has some merit and all the counter arguments for KIllustrator are based on technicalities.
We don't need to fight this battle, and if we simply accept their settlement then the conflict goes away.
I suggest "sKetcher".
Also, all open source projects should think seriously about trademarking their names.
The deregulation was put into place during a Republican administration with the full support of the industries being deregulated.
Oh, right -- blame Pete Wilson. Last I checked it was the legislature and not the governor that writes the laws. It went into force on Davis's watch because it was passed by a democratic legislature.
California currently has democratic governor, democratic legislature, two democratic senators, and mostly democratic representatives. It voted heavily for Clinton and Gore in the last 3 elections. Yet as soon as something bad happens, they're blaming Bush and the previous governor. Odd that one is before and one is after the problem started.
And of course the industry loves partial deregulation. Why wouldn't they? When the government is stupid enough to give you a non-free marketplace advantage, you take it. I wish I'd bought their stock - it's probably outperformed the NASDAQ pretty well.
people can feel that the weather is changing. They can see pictures of penguins dying in Antarctica. They read that skin cancer rates are rising.
They can? Where I live (South-Central Texas) it's been one of the mildest summers I can remember. Also, I think you are confused -- penguins in Antarctica and skin cancer are purported consequence of the ozone hole letting in UV. This has nothing to do with global warming.
The release of CO2 is associated with the burning of fossil fuels. Fossil fuel are a finite resource and eventually they will all be burned and humans with be forced to develop alternative energy sources like nuclear and solar power. It really doesn't matter if we cut energy consumption if we don't develop alternative energy sources -- eventually all fossil fuels will be burned, no matter what.
The only question is how much power (political power) the government will try to usurp by exploiting the issue along the way. I believe the free market must solve this problem. Government cannot create energy nor reduce demand.
California illustrates this. The same stupid democrats who caused the problem there by partial deregulation now want to put price caps in place. (Why do you get more control after you prove that you are incompetent?).
The only moral solution is to let the market set prices. High energy prices will drive market based energy solutions like small scale energy production and alternative power sources. If Californians suffer along the way then good -- that is what they voted for. Personally, the higher prices the better from my point of view. CA has the lowest per capita energy consumption because of the mild costal climate in LA, SF, and yet they still can't meet their own needs. They dumped all their energy production on other states to "protect the environment" (screw the other states). Now they complain when the other states charge them, but I'm glad. Fools and their money are soon parted, to the good of the economy.
1. a similar product to their product with similar functions
Killustrator is not a "product" as concerns Dr. Sattler. Dr. Sattler is simply exercising his first amendment rights without attempting to sell anything. Perhaps it is a product for Red Hat, but they're not being sued.
2. has a similiar interface to thier product
Trademark does not protect functionality.
3. Is obviously designed as a freeware / low cost competitor to an existing product thus damaging and undermining their business and product line
Trademark does not protect you from competition.
4. Damaging to their existing copyright and causing confusion in the marketplace
Trademark does not protect copyright, and Killustrator does not infringe Adobe's copyrights in any way. It is legal to "cause confusion in the marketplace" in noncommercial ways, although KIllustrator isn't exactly confusing. Eg: FUD is legal, while fraud is not.
5. Also under the GPL they can go thru the code and check that no where is there any evidence of code resue or copy
True. Openness and confusion are enemies, and trademark law rides entirely on likelyhood of confusion.
6. From memory the fact that it is a non profit or for profit company makes no difference when it comes to copyright and trademark violation
Probably true. What company is targetted here? Answer: A university who happens to employ a professor who spends his free time publishing free software. The university's relation to Killustrator is hardly a commercial one.
I believe that years of corporate orientation have lead us to expect that every activity is commercial. It isn't. Dr. Sattler maintains a "free" body of expression. The fact that companies often do the same thing does not mean that Dr. Sattler's activity is commercial. The fact that an activity replaces commercial activity does not make it commercial.
Under US law, trademark protection against dilution is defined by 15 USC 1225. Germany's law is probably somewhat similar. I suspect that Adobe's trademark is registered in the US.
After reading the law (something I'd recommend for most Slashdotters), it seems to me that the claim of trademark dilution is somewhat iffy.
The key shortcoming is that 15 USC 1225(c)(1) only authorizes an injuction against "another person's commercial use in commerce of a mark or trade name" (emphasis added). Moreover, per 1225(c)(4)(B) "noncommercial use of a mark" is not actionable.
I believe that a strong case can be made that KIllustrator is not a commercial use by the good Dr. Sattler.
Even if it is somehow commercial use, then by 1225(c)(2), injunctive relief is the FULL extent of relief unless the person "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark". The idea that Dr. Sattler did this seems rather absurd to me.
Thus under US law, I would doubt this case would go anywhere at all.
Dude, GPL can be considered "misuse of copyright" since it FORCES me into licensing scheme chosen by somebody else.
Dude, you are free to not use GPL software at all, so dude, you aren't "forced" into anything, and in fact the only way that, dude, you could possibly use GPL'd code is by choosing to use it yourself, so dude, it's not a licence "chosen by somebody else", but rather one offered by them and chosen by you.
Misuse of copyright means leveraging the copyright to enforce anticompetitive business practices. Ask Red Hat if Mandrake's use of the GPL was anticompetitive when they took Red Hat's work and resold it as is. The GPL is charged pro-competitive on steroids.
This may be a text-book case of "misuse of copyright" where one uses intellectual property rights in an anticompetitive way. Here Microsoft is using its copyright to excluded competition (sort of anti-tying competing products).
The common remedy, by the way, when there is a conclusion of misuse is that the government refuses to enforce the abuser's copyright until the anticompetitive behavior is fixed.
Perhaps various authors of GPL software should coordinate to file antitrust cases in a few dozen different jurisdictions. I think there are probably some firms gearing up to bring private MS antitrust suits who might be interested in doing these kinds of filings on a contingency basis. Basically, some big firm could take the "best" case forward in the hopes that the precedent will turn all the others into good investements.
It seems like Adobe has a reasonable, yet not air tight claim that KIllustrator is confusingly similar to Illustrator, given that both are software tools in the vector drawing arena.
;-] but I don't think Adobe will be very keen, you see they've already got one.
OK, so what happens now? Either the KDE component will need to hire some lawyers and fight, or they need to change their name, or they could simply pay the fee.
Perhaps a little barter arrangement can be made in return for a trademark licence. I suppose KDE could offer Adobe free use, source code, and even distribution of the program
Since the name is somewhat derivitive, I'd recommend changing it as path with the moral high ground. Perhaps they should have a contest to propose the new name. Also, I think all prominent open source projects should trademark their names as a precaution.
Here's a few alternate names I thought of (post your ideas):
sKetch
Kanvas
Killus
KVector
GeometricK
Spam is free speech, people! When you prevent someone from telling people about their issue or product, what ever it might be, in the United States, you are restriting their Constitutionally-guarenteed rights to free speech. (emphasis added)
This is false. The Constitution prevents THE GOVERNMENT from regulating such speech. It does not prevent me or any private third party from doing so, nor does it obligate me or them to use my private resources to forward on an endless supply of mindless chatter. And it most certainly does not stop us from sharing information on who we think is irresponsible enough to privately block.
In fact, it is an exercise of free speech (and property rights) for me or them to put a privately owned mail server on the internet and choose not to forward mail designated by whatever source I choose to. If you don't like it, too bad. You are free to start routing your own mail with your own resources, but I'm free to block whatever mail I feel like from being transferred by my private property.
Everyone should have a right to tell people about events.
They do, but not with the assistance of private resources of those who oppose their message or editorial style.
There is one wrench that this case has stuck in the works: the fact that Yahoo does operate a physical site in France for its French-based services. This is why the French court was able to place such a restriction in the first place. However, I do believe that the French court cannot control what Yahoo does on it's non-French servers, nor force Yahoo to block French users from using certain parts of them.
You are right. People make this too complicated. France can order Yahoo-France to do anything it wants, including to stop doing buisiness until Yahoo-USA stops hosting Nazi memoribilia auctions or stops hosting auctions altogether or stops allowing people named Bob to work there. About all that Yahoo can do is cry "gosh, France, you suck".
Yahoo can flip France a big fat finger if and only if they are ready to shut down shop in France. If they do this, then what is France going to do to enforce their ruling? Invade the US? I doubt it.
The US case is completely irrelevant, because by the same token, unless the US is ready to back it up militarily (as we did in Panama) a US judge cannot change the fact that a foreign government is sovereign in its territory, even if it uses that sovereignty to implement tyranical rules. Since the idea of the US invading France is hard to imagine (and a bad idea under the NATO treaty), Yahoo-USA can give up Yahoo-France or it can comply with French law as define by the French legal system, regardless of what any US judge says.
ME: the web page design serves as a specification.
YOU: No, it serves as a suggestion. As I said in another thread, you have no control over the users' browser, and never have. Get over it.
Legally, HTML is copyrighted expression that is treated as software literary work. The very act of rendering it produces a derivitive work, just as compiling or interpreting any source code produces a derivitive work. This is copyright infringement unless explicitly authorized, however the HTML itself explicitly authorizes display consistent with its commands, which contrary to your implied assertion does not create a unique formatting requirement, but rather authorizes a whole range of derivitive renderings. Smart-tags are not in that range.
You can play wordgames if you like and call it a "suggestion", but please state where you get the legally needed explicit copyright authorization to render it in any way other than consistent with the "suggested" display. Choosing not to load images, whether by filtering ads based on the linked location or simply not providing that functionality in the browser (lynx) does not produce a rendering that is inconsistent with the HTML. Tags can be rendered in a variety of ways including not rendered, but the untagged text cannot be changed. The same thing applies to not executing javascript.
Your examples all share this trait: the browser chooses to render only a subset of the specified HTML commands. That is entirely different than rendering something not expressed.
Go write "I have no control over other people's browsers" on the blackboard until you get it.
In fact I do have a control over other peoples browsers: under the copyright Act, I have a legal cause of action against anyone who uses a browser to commit copyright infringement against me. I can petition a Court for an injunction to force compliance, and if that is ignored, eventually the government will send people with guns to get compliance to the injunction by force.
Go write "17 USC 106(2)" on the board until you get it.
Some people have made much of the fact that html is designed to allow different presentations. This may be true, but the web page design serves as a specification. Presentations of the page must vary within those bounds, other wise a derivitive work is created. In general, creation of a derivitive work is copyright infringement unless it is authorized by the copyright owner. An "opt out" strategy is not availing -- an explicit affirmation is required by law.
There can still be a defense of fair use. For example, if I write a script to add links and run it in my own browser, I haven't done anything that affects the market value of the page, because my affect as a single user is insignificant. Also such a personal script is noncommercial in nature.
Not so for Microsoft. They have been found to be a monopoly specifically in the browser market. As such, when they change your web page, it will be changed for the masses and it will alter the statistics significantly of your click patterns, which clearly affects your ability to profit from you copyrighted content.
Additionally, Microsoft is attempting to profit from this feature, whereas an individual user is probably not doing so. Thus two critical factors of the fair use equation weigh against smart-tags, however this does not mean that all modification of web pages are infringing. Fair use is a case by case analysis.
Appellate courts are used to dealing with upholding the rights of a lot more contemptible folks than hackers.
The higher in the system you go, the more sensitive judges are to the fact that you must protect even the scumbags in order for rights to have meaning. Consider the Brandenberg case the judges asked about. It upheld the rights of KKK members to advocate racially motivated violence. Against that backdrop, hackers look like Mother Theresa.
That a person might use a computer program to do something does not by itself add "nonspeech" elements to the text.
That a person "might?" Where does "might" come from? I'm not sure where these EFF guys have been, but most programs actually get run much more frequently than they are used for interpersonal communication. I'm not saying that programs aren't used for communication - they are. It's just not their primary purpose.
The question is not whether non-speech elements exists when "programs actually get run", but whether DeCSS itself has non-speech elements. You are confounding the program as an entitiy with the action of running it. Any conduct that exists as part of the latter act is done by the programs user, not the author.
Maybe running programs is a "non-speech element", though most devices that ordinary computers control are speech devices (monitor, printer, speakers), so I won't even cede the point that running a program has non-speech elements. Does running the "authorized" DVD player program have non-speech elements? All it does is show the movie - an action that results in pure expression. Why does that change if the player program isn't "authorized", after all we are talking about non-infringing use of the movie (private performance).
There are two factors that I think are driving the emergence of bioinformatics: culture and data explosion.
.com's use: big iron data warehouses running heavy duty RDBMS's like oracle, DB2. Nope. I have yet to come across a single bioinformatics project that has a clue about data modelling. It's actually much above average to use a database at all, let alone well. If I was head of the NIH, you can bet that Freshmen biologists would take a class in SQL starting immediately.
When I was in college, the computer science majors "hung out" with the math majors, the physics majors, and the electrical engineering majors. Biologists hung out with the less analytical crowd. Obviously these are generalizations, but I believe a lot of "the problem" is that culturally biologists just don't have very good computer skills. Suddenly it is the case that biology as a science absolutely requires these skills. If you were one of the few (and some do exist) that broke the stereotype, you need to be starting a company about now. Otherwise the race is on for the biologists to learn programming and the CS-math-physics types to learn biology.
Second is the fact that biologists are drowning in data. Projects like the human genome project are producing lots of data, but thats just the tip of the iceberg. There is already an exploding market in high throughput assays and measurement computation. The result is that the field as a whole simply isn't managing it's data well. Often groups store there data in extremely crappy formats. Custom text formats, asn.1, etc... I'm an Oracle programmer, so I expect the kind of solutions that Banks and
When you combine the two factors: culture and data innundation, very strange things start to happen. The data infrastructure just isn't there and worse a lot of people just don't realize it. Biology is presenting problems that require massive data warehousing solutions to a field whose main data background is calculating p-values to show the effect of a drug is significant.
"Judge: Well, maybe you can enjoin them from putting it on the Internet. That's an idea. "
Ummm. Copyright infringement is ALREADY illegal. The defense needs to emphasize that judicial nixation on 1201(a)(2) doesn't suddenly legalize copyright infringement. It also doesn't even impact 1201(b)(1) which is aimed at circumvention tools primarily aimed at copyright infringement as opposed to mere access.
The open source community interaction with law and politics to date has been almost completely reactive. Typically some company or governement institution has or is about to do something draconian before we are able to mobilize. Sometimes we get there in time, sometimes not. Examples are: DMCA, UCITA, and hundreds of software patents, Microsoft's embrace and extend campaign of the week, ... the list goes on.
What can we do as a community to be more effective in protecting ourselves. I'm someone who has joined the EFF, written letters to the copyright office, participated heavily on Openlaw, and written letters to my Congressmen. Many of us are involved in these ways, but somehow we've got to take it up a notch. What's the next step?
Currently, there's no Open Source industry group that deals with legislative issues, although Webbink says Red Hat's efforts have been received well both on Capitol Hill and in Maryland's statehouse. Red Hat worked with the Open Source Initiative to craft the change in Maryland's UCITA.
For God's sake, why don't they create this! Right now we rely on the EFF to represent our interests to lawmakers. This needs to be supplemented with a group with a business perspective, for a one-two punch. The open source movement needs to start doing more PR work with legislatures. Red Hat's work here is great, but this has to be about more than just one company. The open source community is offereing tremendous value to consumers, citizens, and corporations that use our software and pay for our services. We need to move our community into the mainstream in the minds of the Congress critters.
Especially with Microsoft making it clear they are going to bash us as "intelletual property destroyers", we need to proactively present our pro-business face to lawmakers and set the record straight. Open source brings programmers, software companies, and software consumers (corporate and indiviual) together in a community that is focused on minimizing waste in the global software market, especially that caused by artificially created barriers. This makes sense from an individual rights perspective and it makes sense from a business perspective, once you focus on optimizing the creation of value within the entire system. Voluntary cooperation out of mutual self-interst for mutual gain is the EPITOME of the American way. In fact, this is little more than a statement of the concept of trade.
No party engaging in trade in a modern society creates products solely for self use. We are all dependend on trading those goods we create for something created by someone else. Open source is simply a different value proposition within software trade. Recognizing the cumulative value in compounding innovation, the open source value proposition says that instead of trading your IP rights for money, you trade those rights for permanent access to the valuable intellectual property contributions of others whose work extends your own.
IP is valuable precisely to the extent it is useful. To trade IP you create for access to the useful IP of others is in fact a profound statement about the value of use for software and intellectual property generally. The open source movement not only deeply respects intellectual property, it is in fact is critically dependent on it, since it is only by the open source copyright licences that we are secure in our ability to work together without fear of being ripped off.
In sum, the idea that open source destroys IP or stiffles trade is not just wrong, it is profoundly wrong-headed. Work released in an open source licence IS intellectual property. What open source will destroy is the barriers to directly trading IP for IP. For companies that survive by trading IP by the drop directly to consumers in exchange for cash, this is no doubt troubling because it paradigmatically challenges their value proposition. As with any situation where different value propositions exist, the market will choose how to distribute total resources among the two rival models to provide the system that is globally most efficient. That is the american way, and we embrace it.
Ocne a copyright expires on a DVD (in, what, 70+ years form now?), they then expect the circumvention devices to surface.
No, it's not 70 years from now. Many DVD's were made for old movies, for example Charlie Chaplin. Often the studios add something new so that they can get a new copyright, but this only protects the new elements. You can use DeCSS to obtain elements of the digital work that are in the public domain as of right NOW.
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
A computer program expresses a method. It expresses functional ideas, much as a recipe, scientific experimient instructions, or musical score does. The actual expression depends on the program, so the question is sort of like asking what a musical score expresses - a general answer is very generic, but any specific instance of such communication will be much more rich. Here, DeCSS expresses the functional ideas that demonstrate that CSS is insecure in a specific tangible way. The First Amendment protects such content even against a Congress bent on stiffling that particular idea from dissemination.
Softwares expression generally is equivalent to standard english sentences with the understood 2nd person subject ("You"), followed by the verb given by the instruction, and a direct object that tells what the operation occurs on. A decryption program, for example, generally expresses a mathematical forumla, and are often an implementation of functional ideas learned from reading mathematical literature. Computer books are filled with programs and form a major sections at most bookstores precisely because they are expressive. Programs are copyrighted because they are expressive. Computer programs are not part of any "conduct" until and unless they are executed. Instead, a program merely communicates functional ideas that might be exectued or might be read by the legions of programmers actually do read and understand programming languages.
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
The question is misplaced. Fair use admits no bright line rules (See Leibovitz v Paramount, opinion by judge Newman) A rule that said "No fair uses exist for high quality digital works" is therefore impossible to assert. Instead, fair use is an affirmative defense to copying as chosen and performed by the alleged infringeer. If the four factors weigh in favor of fair use, then fair use exists. To abstractly argue this can never be the case for digital movies requires proving a negative, which is impossible and counter to copyright jurisprudence.
We'll answer the question anyway by providing just one example, that happens to be relevent to DeCSS: "Interoperability" is one class of fair use that clearly has a well-established existance in copyright jurisprudence. Using DeCSS to allow interoperability of DVD's with alternative operating systems and/or MPEG-2 players is done for personal, noncommercial use, and increases rather than decreases the potential market for the copyrighted works in their high-quality digital form. Linux users will now buy DVD's, if allowed.