Well, then it looks like you now have the information you need. Stay strong. I am in similar boat, and I work like the guy in the article - I go home to see the kids and work later from home. These places that insist you do it all in their sight don't trust you and do not want you to have outside connections.
Looking at the complaint it immediately struck me that there was no claim for breach of contract, only one for copyright infringement. That doesn't seem to make sense - SFLC can get an injunction under a contract theory (if they prove the elements, etc) - why would they neglect a valid argument, even if it is not their preferred argument?
I know that the FSF and the SFLC say that GPL is only license, not contract, but are they really willing to live or die on this issue? The GPL has value even if it is "only a contract". But this complaint risks dismissal for failure to state a claim if they are wrong. On the other hand, what the SFLC wants most is an opinion saying that the GPL terms are conditions to the license. If they are wrong, I suppose they will just amend the complaint to add the contract claim.
Another issue is that the Hava support person said that they would comply with the terms of the GPL, namely make source code available, but couldn't commit to a date. This is still probably a breach - since the written offer on a forum thread probably doesn't meet the written offer requirement in GPL section 3 (mostly because it did not accompany the product), but it's not that far off, since section 3 doesn't specify that the written offer commit to a date by which the source would be available.
I would think there were better targets on the busybox list of shame.
MS Word didn't screw this up, Adobe prevented it. See http://news.zdnet.com/2100-3513_22-6079320.html. Microsoft caved to Adobe's demand because it was scared of the EU case. Adobe also got MS to drop its own competing portable format. And after Monday's EU CFI decision affirming the EC slap on them for bundling media player (I really can't imagine a more innocuous product), it looks like Microsoft read that situation right.
Well you definitely have a strong argument for distinguishing these cases. The issue here is whether a plaintiff can survive the inability to point to particular acts of distribution by just alleging that the defendant was "making available" the copyrighted material. I hope that in your next case the court agrees with you.
But I think you are misconstruing Greubel and Duty. Yes these cases were in the context of a motion to dismiss, but they rejected arguments that only alleging making available failed to state a claim of infringement - a question of law not dependent on any facts that might be discovered. For example, the Greubel court said "Contrary to Greubel's position, the courts have recognized that making copyrighted works available to others may constitute infringement by distribution in certain circumstances." And in note 11 the court specified that those circumstances are shown where distribution (or downloading) is contemplated.
As far as Napster goes, it was the first decision by the Ninth Circuit that said "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). In the second Napster case, the court held that Napster's own *indexing* of files is not distribution, because there is no evidence that Napster had the files to distribute. By this light, if the defendants in this case found a way to list music files they didn't actually have on their drive on Kazaa, they wouldn't be liable for distribution. (Such a hack would be a great way to mess with the RIAA if you could do it without making the service unusable). I didn't read the second Napster decision as limiting the first, but it is certainly an argument to make.
In the end, it does no one any good to pretend that there is not harmful precedent out there. I would hate for people to leave themselves unprotected because they think there is only this crazy Arizona decision. There is precedent, and if defending someone on these charges, as you do, of course a lawyer should distinguish the precedent. I guarantee you will have a job convincing the judge that there's no precedent out there, and I really hope you succeed in it.
As you have already discovered, IANAN - I am not a Nimmer.
There are other cases out there that hold that "making available" is distribution (meaning infringement if unauthorized). For example, Arista Records LLC. v. Greubel, 453 F.Supp. 2d 961, 969 (N.D. Tex. 2006); Interscope Records v. Duty, 2006 U.S. Dist. LEXIS 20214, at *7 (D. Ariz. 2006). It's probably only the older cases that would not say that "making available" is distribution, especially since that is what the WIPO Treaty on Copyright requires. An example of an old case that held the opposite is Marobie-FL, Inc. v. Nat'l Ass'n of Fire Equip. Distrs., 983 F. Supp. 1167, 1178 (N.D. Ill. 1997) (finding "that [the party putting clip art for download on a web page] only provided the means to copy, distrib-ute or display plaintiff's works, much like the owner of a public copying machine used by a third party to copy protected material").
This is what the Ninth Circuit said in 2001: "Napster users who upload[ed] file names to the search index for others to copy" engaged in distribution. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). On the other hand, Napster itself did not directly violate copyright holder's distribution rights by maintaining the search index. In re Napster, Inc. Copyright Litig., 377 F.Supp. 2d 796, 804 (N.D. Cal. 2005).
Back in 1997, the Fourth Circuit held a library liable for putting an unauthorized copy of geneology data from the Mormons in its catalog, holding that "making available" is distribution (no first sale, so no first sale doctrine). Hoteling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997).
So I think the weight of precedent is actually on this judge's side.
There was a great article on Prince in the Times this weekend and how he operates in this world. He gives cd's for free in the London newspaper - pretty much follows the heavy touring Dead/BB King model, but with extra-expensive exclusive shows, and a punch for being much more prolific.
Re your point #4 - this is a tournament model, where the vast majority of talented musicians don't make their money from records, but the hope of coming out on top and becoming the next [insert name here] is too alluring to pass up the chance when offered. I guess the question is whether the grass-roots myspace/youtube phenom will provide an attractive enough alternative for musicians that they will bypass record companies (Jake Shimabukuru - the incredible ukelele dude - certainly benefited from the youtube thing)
In this day and age, the principal should have worn this prank as a badge of honor. He could tell other principals: "Your students are soooo stupid that they still do the old car on the dumpster/fountain trick. My students can at least create a half-way funny parody. Do your students even know what a parody is? Can they spell it?"
That would be a great license, but you couldn't remake all of society with it;-) GPLv3 both adds to and subtracts from your great license in many ways but here are two major ones.
Subtraction
2. you add to or modify my code, then you must redistribute it because i would like to benefit from your changes This one went out the door because big companies who are not Microsoft didn't want it.
Addition If you sell my code, you can't make a deal to protect your customers from my infringing code.
There are those who would intentionally write to infringe on Microsoft's patents just to test the system. I'm all for "fight the power", many patents are not very good and should be challenged. But GPLv3 is the wrong way to go about it. GPLv3 says it's ok to drive a company out of business if it tries to protect its customers.
Let's say you grant me a license to your software, and license it GPL. If I give or sell a copy to my competitor, I must give him the same chance to make changes that I had. How is that anti-competitive? That's not anti-competitive. But let's try a different scenario: let's say that a bunch of big companies and a non-profit get together (let's call them the wild bunch, because we like them) to discuss ways to stop a competitor from getting an edge by providing its customers with assurance that they won't be liable to another large company for patent infringement, if any exists. The "wild bunch" decides to add a term to the software license to take away the competitor's ability to compete because of the deal it made to protect its customers. The stated reason given by the "wild bunch" is that the competitor shouldn't be able to "make a separate peace" - everyone should needs to stand together against that large patent owning company, customers be damned.
We talk about the fact that free software has "grown up" because big companies are adopting it, and big companies are sponsoring developers (who of the major contributors doesn't work for a big company these days?). Well, when big companies get together and decide to specifically exclude another big company from a market, they call that a group boycott, an antitrust violation.
In the U.S., it is hard to graduate from a high school without attending classes that discuss what police can or can't do. In my high school, the class was called "Civics" (I think... it was 13 years ago).
The # 1 change that I have seen in the practice of programming (so to speak) over the last couple of years is not due to Linux's ascent or the adoption of Java (although both are great), but the difference in design and coding due to the GoF book - Design Patterns.
A little before that 'Code Complete' rocked. While most cannot match this level of importance, it is important that they try. Most fiction does not touch Doestoyevsky, but people should still write and read lesser works.
You brought up that there is a big difference between Communicator and Navigator. I've been wondering about that for a long time. What is the difference? At first, I thought it was just the suite, but Navigator comes with the suite too.
There are waaaay more intranet sites and web applications being built than there are public internet sites. So when a corporation wants to build a web application (which more and more are doing instead of normal VB forms apps), they have a choice - be left with a fairly anemic app to support Netscape and MS, or go with IE and have all of the ui that they want (not talking ActiveX here, but DHTML). Unless they have an anti-MS bigot with the powere to scuttle, they will go with the IE-optimised version every time.
If there were something better, it would be used.
NYC is all about Work, no matter what profession
on
NetSlaves
·
· Score: 1
IT people actually have it better than those in other fields in NYC. Try working in a bank or brokerage house back office.
If you don't like what you do, then you've got someone else's job. Go do what you want to do, you'll end up happier, with a better attitude, and likely more money.
I program because it beats working. And yes, I often spend incredible hours at work, under lots of pressure. But the pressure is more self-imposed that otherwise. When I stay late it is only because I am not finished yet.
In the corporate world (of which I am a denizen), only safe and committee approved themes are ever officially sanctioned. The word professional has been co-opted to mean safe, traditional theme. You should sit in on a meeting to try and name a new system - Let's come up with a "flashy" acronym with boring meaning.
The only humor anyone ever "appreciates" is the the division head's.
I think that we have to assume that the original poster did enough analysis to arrive at the need for distributed/language independent processing.
There are quite a few reasons to use distributed processing that make sense. First off, very few large or corporate systems exist in a vaccuum. Most new systems either get data from, send data to, control, expose to a new audience (web), or otherwise interact with other systems. So given that you need to send "messages" around, is rolling your own request/reply protocol on top of naked sockets or http the simplest thing?
I would argue that it is anything but. You have to build all sorts of features yourself that you could get for free from an orb or a Messaging system. There are RPC mechanisms being built on top of HTTP that emulate the other distributed processing mechanisms (interestingly enough Microsoft is ahead in this regard), but I don't get the sense that this is what you are recommending.
I think that you have to ask yourself, what do you do after you have implemented all of these stand-alone systems? How do you get them to work together?
While I have not used it - Xerox's ILU (Inter-Language Unification) project has been around for a long time. It comes very highly reccomended. From the same people that brought you gui's, desktop publishing, ethernet and distributed computing.
My longest tenure at a company was as a Contractor for 1.5 years, two of my contractor friends have been there for 3 years and 4 years, respectively. The company recieves flexibility and a higher Revenue/employee ratio than otherwise, as well as being able to keep these extremely valuable resources.
As for Contractor motivation, I dispute that a contractor's motivation would be any different than an employee's, they just experience different forces. If a person was inclined to do good work because they ENJOY programming, then they will do good work, with good design, whether they were an employee or a contractor. As a contractor, I am valued for my design skills.
As for self-motivation, I feel that I do better work as a contractor than as an employee (although I like to think that I did good work as an employee). As an employee, I found myself spen ding an inordinate amount of time worrying about politics, and internal status (why is that yahoo being promoted, etc.). As a contractor, I don't particularly care what person X is getting as long as I'm getting my rate. And when any company wide events happen (merger/sale rumors, etc), it has absolutely no bearing on me, except if I feel that the project might be canceled or scaled back.
You have obviously never worked for a financial company. Not only does the SEC have direct oversight, but so do the "self-regulating" bodies. Any one of thes entities can put a firm and/or a person out of business. And it's a damn good thing they exist.
The E-Trade questionare reflects SEC suggested guidelines of what they call (and this is a standard industry phrase) the "sophisticated investor". And if the public were left without these protections, there would be quite a lot MORE fleecing going on.
I can't believe that no-one so far has nominated Travels With Samantha http://photo.net/samantha/travels-with-samantha.ht ml which was certainly one of the first interesting reads out on the web (as distinguish from the net). It may even have been the first internet published book that was later published as a dead-trees book.
When people started to realize that the web was a publishing mechanism it was because of this book.
Slashdot Mirror
I'm sure the kids would be happy with change too. Why don't you just give them some of that?
Well, then it looks like you now have the information you need. Stay strong. I am in similar boat, and I work like the guy in the article - I go home to see the kids and work later from home. These places that insist you do it all in their sight don't trust you and do not want you to have outside connections.
Looking at the complaint it immediately struck me that there was no claim for breach of contract, only one for copyright infringement. That doesn't seem to make sense - SFLC can get an injunction under a contract theory (if they prove the elements, etc) - why would they neglect a valid argument, even if it is not their preferred argument?
I know that the FSF and the SFLC say that GPL is only license, not contract, but are they really willing to live or die on this issue? The GPL has value even if it is "only a contract". But this complaint risks dismissal for failure to state a claim if they are wrong. On the other hand, what the SFLC wants most is an opinion saying that the GPL terms are conditions to the license. If they are wrong, I suppose they will just amend the complaint to add the contract claim.
Another issue is that the Hava support person said that they would comply with the terms of the GPL, namely make source code available, but couldn't commit to a date. This is still probably a breach - since the written offer on a forum thread probably doesn't meet the written offer requirement in GPL section 3 (mostly because it did not accompany the product), but it's not that far off, since section 3 doesn't specify that the written offer commit to a date by which the source would be available.
I would think there were better targets on the busybox list of shame.
IANAN - I am not a Nimmer
MS Word didn't screw this up, Adobe prevented it. See http://news.zdnet.com/2100-3513_22-6079320.html. Microsoft caved to Adobe's demand because it was scared of the EU case. Adobe also got MS to drop its own competing portable format. And after Monday's EU CFI decision affirming the EC slap on them for bundling media player (I really can't imagine a more innocuous product), it looks like Microsoft read that situation right.
Well you definitely have a strong argument for distinguishing these cases. The issue here is whether a plaintiff can survive the inability to point to particular acts of distribution by just alleging that the defendant was "making available" the copyrighted material. I hope that in your next case the court agrees with you.
But I think you are misconstruing Greubel and Duty. Yes these cases were in the context of a motion to dismiss, but they rejected arguments that only alleging making available failed to state a claim of infringement - a question of law not dependent on any facts that might be discovered. For example, the Greubel court said "Contrary to Greubel's position, the courts have recognized that making copyrighted works available to others may constitute infringement by distribution in certain circumstances." And in note 11 the court specified that those circumstances are shown where distribution (or downloading) is contemplated.
As far as Napster goes, it was the first decision by the Ninth Circuit that said "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). In the second Napster case, the court held that Napster's own *indexing* of files is not distribution, because there is no evidence that Napster had the files to distribute. By this light, if the defendants in this case found a way to list music files they didn't actually have on their drive on Kazaa, they wouldn't be liable for distribution. (Such a hack would be a great way to mess with the RIAA if you could do it without making the service unusable). I didn't read the second Napster decision as limiting the first, but it is certainly an argument to make.
In the end, it does no one any good to pretend that there is not harmful precedent out there. I would hate for people to leave themselves unprotected because they think there is only this crazy Arizona decision. There is precedent, and if defending someone on these charges, as you do, of course a lawyer should distinguish the precedent. I guarantee you will have a job convincing the judge that there's no precedent out there, and I really hope you succeed in it.
As you have already discovered, IANAN - I am not a Nimmer.
There are other cases out there that hold that "making available" is distribution (meaning infringement if unauthorized). For example, Arista Records LLC. v. Greubel, 453 F.Supp. 2d 961, 969 (N.D. Tex. 2006); Interscope Records v. Duty, 2006 U.S. Dist. LEXIS 20214, at *7 (D. Ariz. 2006). It's probably only the older cases that would not say that "making available" is distribution, especially since that is what the WIPO Treaty on Copyright requires. An example of an old case that held the opposite is Marobie-FL, Inc. v. Nat'l Ass'n of Fire Equip. Distrs., 983 F. Supp. 1167, 1178 (N.D. Ill. 1997) (finding "that [the party putting clip art for download on a web page] only provided the means to copy, distrib-ute or display plaintiff's works, much like the owner of a public copying machine used by a third party to copy protected material").
This is what the Ninth Circuit said in 2001: "Napster users who upload[ed] file names to the search index for others to copy" engaged in distribution. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). On the other hand, Napster itself did not directly violate copyright holder's distribution rights by maintaining the search index. In re Napster, Inc. Copyright Litig., 377 F.Supp. 2d 796, 804 (N.D. Cal. 2005).
Back in 1997, the Fourth Circuit held a library liable for putting an unauthorized copy of geneology data from the Mormons in its catalog, holding that "making available" is distribution (no first sale, so no first sale doctrine). Hoteling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997).
So I think the weight of precedent is actually on this judge's side.
IANAN - "I am not a Nimmer"
There was a great article on Prince in the Times this weekend and how he operates in this world. He gives cd's for free in the London newspaper - pretty much follows the heavy touring Dead/BB King model, but with extra-expensive exclusive shows, and a punch for being much more prolific.
Re your point #4 - this is a tournament model, where the vast majority of talented musicians don't make their money from records, but the hope of coming out on top and becoming the next [insert name here] is too alluring to pass up the chance when offered. I guess the question is whether the grass-roots myspace/youtube phenom will provide an attractive enough alternative for musicians that they will bypass record companies (Jake Shimabukuru - the incredible ukelele dude - certainly benefited from the youtube thing)
In this day and age, the principal should have worn this prank as a badge of honor. He could tell other principals: "Your students are soooo stupid that they still do the old car on the dumpster/fountain trick. My students can at least create a half-way funny parody. Do your students even know what a parody is? Can they spell it?"
Now that would be some good principal trash-talk.
Subtraction 2. you add to or modify my code, then you must redistribute it because i would like to benefit from your changes This one went out the door because big companies who are not Microsoft didn't want it.
Addition
If you sell my code, you can't make a deal to protect your customers from my infringing code.
There are those who would intentionally write to infringe on Microsoft's patents just to test the system. I'm all for "fight the power", many patents are not very good and should be challenged. But GPLv3 is the wrong way to go about it. GPLv3 says it's ok to drive a company out of business if it tries to protect its customers.
We talk about the fact that free software has "grown up" because big companies are adopting it, and big companies are sponsoring developers (who of the major contributors doesn't work for a big company these days?). Well, when big companies get together and decide to specifically exclude another big company from a market, they call that a group boycott, an antitrust violation.
Noah Clements
IANAN (I Am Not A Nimmer)
In the U.S., it is hard to graduate from a high school without attending classes that discuss what police can or can't do. In my high school, the class was called "Civics" (I think... it was 13 years ago).
The # 1 change that I have seen in the practice of programming (so to speak) over the last couple of years is not due to Linux's ascent or the adoption of Java (although both are great), but the difference in design and coding due to the GoF book - Design Patterns.
A little before that 'Code Complete' rocked. While most cannot match this level of importance, it is important that they try. Most fiction does not touch Doestoyevsky, but people should still write and read lesser works.
Books can lead to better code!
You brought up that there is a big difference between Communicator and Navigator. I've been wondering about that for a long time. What is the difference? At first, I thought it was just the suite, but Navigator comes with the suite too.
I would love to know, thanks
There are waaaay more intranet sites and web applications being built than there are public internet sites. So when a corporation wants to build a web application (which more and more are doing instead of normal VB forms apps), they have a choice - be left with a fairly anemic app to support Netscape and MS, or go with IE and have all of the ui that they want (not talking ActiveX here, but DHTML). Unless they have an anti-MS bigot with the powere to scuttle, they will go with the IE-optimised version every time.
If there were something better, it would be used.
IT people actually have it better than those in other fields in NYC. Try working in a bank or brokerage house back office.
If you don't like what you do, then you've got someone else's job. Go do what you want to do, you'll end up happier, with a better attitude, and likely more money.
I program because it beats working. And yes, I often spend incredible hours at work, under lots of pressure. But the pressure is more self-imposed that otherwise. When I stay late it is only because I am not finished yet.
In the corporate world (of which I am a denizen), only safe and committee approved themes are ever officially sanctioned. The word professional has been co-opted to mean safe, traditional theme. You should sit in on a meeting to try and name a new system - Let's come up with a "flashy" acronym with boring meaning.
The only humor anyone ever "appreciates" is the the division head's.
I think that we should all just whip out the code and measure it, and see who has the biggest swinging code.
This java and VB bashing crap is just that, "Hey, let's all feel superior. My repurposed teaching language (Pascal-Delphi) is better than yours (VB)."
Linux admins are also not "real programmers", but hopefully they are real admins, lord knows we could use some good sysadmins.
I couldn't find your email address, but I would be interested. mailto:noah@waquoit.com
I think that we have to assume that the original poster did enough analysis to arrive at the need for distributed/language independent processing.
There are quite a few reasons to use distributed processing that make sense. First off, very few large or corporate systems exist in a vaccuum. Most new systems either get data from, send data to, control, expose to a new audience (web), or otherwise interact with other systems. So given that you need to send "messages" around, is rolling your own request/reply protocol on top of naked sockets or http the simplest thing?
I would argue that it is anything but. You have to build all sorts of features yourself that you could get for free from an orb or a Messaging system. There are RPC mechanisms being built on top of HTTP that emulate the other distributed processing mechanisms (interestingly enough Microsoft is ahead in this regard), but I don't get the sense that this is what you are recommending.
I think that you have to ask yourself, what do you do after you have implemented all of these stand-alone systems? How do you get them to work together?
While I have not used it - Xerox's ILU (Inter-Language Unification) project has been around for a long time. It comes very highly reccomended. From the same people that brought you gui's, desktop publishing, ethernet and distributed computing.
My longest tenure at a company was as a Contractor for 1.5 years, two of my contractor friends have been there for 3 years and 4 years, respectively. The company recieves flexibility and a higher Revenue/employee ratio than otherwise, as well as being able to keep these extremely valuable resources.
As for Contractor motivation, I dispute that a contractor's motivation would be any different than an employee's, they just experience different forces. If a person was inclined to do good work because they ENJOY programming, then they will do good work, with good design, whether they were an employee or a contractor. As a contractor, I am valued for my design skills.
As for self-motivation, I feel that I do better work as a contractor than as an employee (although I like to think that I did good work as an employee). As an employee, I found myself spen ding an inordinate amount of time worrying about politics, and internal status (why is that yahoo being promoted, etc.). As a contractor, I don't particularly care what person X is getting as long as I'm getting my rate. And when any company wide events happen (merger/sale rumors, etc), it has absolutely no bearing on me, except if I feel that the project might be canceled or scaled back.
You have obviously never worked for a financial company. Not only does the SEC have direct oversight, but so do the "self-regulating" bodies. Any one of thes entities can put a firm and/or a person out of business. And it's a damn good thing they exist.
The E-Trade questionare reflects SEC suggested guidelines of what they call (and this is a standard industry phrase) the "sophisticated investor". And if the public were left without these protections, there would be quite a lot MORE fleecing going on.
Noah
previously a registered NASD Series 7 & 63
I can't believe that no-one so far has nominated Travels With Samantha http://photo.net/samantha/travels-with-samantha.ht ml which was certainly one of the first interesting reads out on the web (as distinguish from the net). It may even have been the first internet published book that was later published as a dead-trees book.
When people started to realize that the web was a publishing mechanism it was because of this book.