IANAL (yet) either, but I do know enough to know that there is a difference between an employee and in independent contractor. The question will probably be whether the outside firm qualifies as an employee or is only an IC. That's no excuse for Univention's lawyers allowing the loophole in the first place though. It should have said 'TSG or their agent' from the beginning.
Don't get me wrong, I think TSG's claims are laughable. If anything, I think my comments were intended to show just how silly TSG is. Also, get the facts right. Not to defend them, but TSG has never claimed that Linux "is so tainted with [their] patents" if only for the fact that they don't have any significant patents (if any). I think it most likely that TSG has chose not to show what they claim to be infringing code as a business strategy to delay the inevitable for as long as possible in order to benefit their executives and benefactors as much as possible before the whole house of cards comes crashing down. That's just my opinion, I could be wrong.
They could "work[] to create legal conditions" the same way they are here, through litigation. If TSG succeeds in their litigation here in the US they would have effectively created legal conditions (i.e., precedent indicating Linux infringes TSG copyrights) which would pressure Linux users to purchase licenses from TSG.
It's this kind of behavior that helps us see why they're afraid of showing code. They think that as soon as they do someone will find a clever way around their claims, just as they would do if put in the same position. Now, that doesn't change the fact that a lot of someones will probably find a lot of clever ways around their claims, but isn't that exactly what they should want if they were living in the same world as the rest of us?
Try using "emerge -B gcc" on another system and "emerge -k gcc" on the dead one (after copying the package over to/usr/portage/packages/All). If you don't have another system, let me know what USE and CFLAGS you need and I'll see what I can do to get you a package.
Anyone who's visited the Gentoo Forums wouldn't say that Gentoo doesn't care about customers (broadly defined). What the Gentoo project doesn't care about is milking every last dime out of every possible customer.
Yeah, for some reason the slashcode insists on putting a space before the last twelve bits so it reads "J2 ZS4" where it should read "J2ZS4" which will give you the final "e." Any suggestions for preventing that would be appreciated.
Which is why Portage is so handy. It builds from source and takes care of package removal. It also offers config file protection so a new version of a package doesn't stomp all over your carefully configured system.
You don't have to wait days to get a working Gentoo system. With the GRP CDs you can have a working system up and running in a few hours. It's still going to take more time than Fedora or SuSE, but it will be optimized more for your platform with the option of recompiling for further optimization. That's how I setup Gentoo on my laptop as it's hideously slow. Over time it's had almost everything recompiled a piece at a time, but I didn't have to wait for it to do everything from glibc up at once.
Ok, time to take off the tinfoil hat.;) Any wacko who's going to go on a killing spree because his candidate didn't get elected is more likely to do it randomly or find a rally for the opposing politician at which to wreak havoc. He doesn't need contributor info for that. And, as for the candidates themselves, they already have that info, it comes on the checks they get and they're the ones providing it to the FEC, who then makes it available to sites like that.
Clarify the potential for misuse please. Are you saying, for example, that I should be afraid of my boss finding out who I contributed to and retaliating because of it?
What ever happened to self-regulation? I thought that was the holy grail for this administration. I don't see why advertisers can't force the networks (and remember, the FCC only controls the networks) to reign in their shows during times when children might be watching. All this will do is force the content onto cable, but since cable is so widespread there will still be (even more?) cries for regulation, forcing the FCC to seek regulatory control over the cable networks. Then we're taken completely afield from the scarcity and public interest justifications for regulating indecency on the public airways and there is absolutely no reason for the FCC to regulate.
Gentoo is definitely the way to go. There's plenty of hand-holding available from the excellent install guide that just keeps getting better to the invaluable forum that has answers for just about any question you might ask. Personally, I much prefer the Portage system to either apt-get or (god forbid) RPM. Compilation time adds up, but if you have multiple machines and use distcc and make packages, it's not that bad.
Lawyers most certainly pay attention to sites like Groklaw. I was recently involved in a discussion with an attorney representing one of the companies involved in the whole mess covered at Groklaw and one of the first things said was, "I don't want any of this to show up at Groklaw." It's something they can't afford to ignore given the pace at which armchair lawyers dissect their pleadings and spark discussion, informed or otherwise, about the merits of the case. There are also a few nuggets of wisdom floating around on those type of sites that they would be wise to mine.
Wow! What can I say. I've thought MAI was a complete and total POS from the day that I read it, but I've never been able to clearly express why other than pointing to the transitory nature of RAM and the definition of fixation. Your analogy to the telephone game is very effective. I hope you don't mind if I share this exchange with some other students at my school. You're, in my view, right on the UCC point as well. Acceptance should be tied to affirmative acts that indicate acceptance and constitute, at least in some minimal form, consideration. Taking advantage of tech support would be a prime example.
I know your sig says you're not a lawyer, but you seem to have a better grasp of these issues than some of my professors. Are you a student? A paralegal? What do you do? I've been trying to figure out how I can do technology law without doing patents (not because I can't sit for the patent bar, just because I don't really want to, I don't really care for the idea of software patents and if I have to do much more work like the provisional application I drafted today for an incremental improvement in a particular aspect of an anti-lock braking system I'm going to rip my hair out) and the CSO at my school is no help. Any advice?
I thought that was the point I was trying to make. Sorry if I didn't make it clear. Thanks for giving a succinct statement of what I was trying to get across in my ramblings.
but that doesn't grant you any ownership interest in the software on that medium.
This is totally incorrect. You're failing to distinguish between a work as a whole, and a copy as a fixed medium embodying an individual instance of a work.
I don't think I am, but let me try to elaborate on my thinking and you can, as you have so ably done before, poke holes through it! We seem to agree that the purchase of a CD containing software results in the ownership of that CD by the purchaser. Where we seem to diverge is what rights come with that ownership. I don't think we would disagree that there is the right to dispose of the CD, i.e., through sale. I also don't think we would disagree that the purchase of the CD conveys any right to reproduce the contents of the CD to the extent that such reproducton is an infringement of a 106 right. Where that infringement occurs seems to be where we differ. I think you misapprehend my argument when you make the analogy to reading a book. When you read a book you do not exercise any of the rights granted under 106. Use of a computer program is different in that, of necessity, a copy of that program is made and the right "to reproduce the copyrighted work" is right there in 106(1). That brings us to 117 which tells us that, notwithstanding 106, it is not an infringement to make a copy of a computer program in certain circumstances. Let's look at the elements of the limitation of 106 embodied in 117(a):
it is not infringement for the owner of a copy of a computer program to make a copy or adaptation of the program provided
the new copy or adaptation
is created as an essential step to using the program
together with a machine
and in no other manner; or
the new copy or adaptation
is for archival purposes only
all archival copies are destroyed when continued possession is no longer rightful
Now, I don't think we disagree about (2). The question really is how broad should the terms of 117(a)(1) be read. Is it essential to make a copy of a GBA ROM to run on an emulator when the ROM would run just as well on a real GBA without the intermediate copy? How is "a machine" to be interpreted? Your point that Congress well knows how to limit terms and could have chosen to do so is well taken. That said, Congress doesn't seem to have been very thoughtful in drafting 117 which, if I remember correctly, was a somewhat rushed response to the Peak v. MAI case holding that copying to RAM to run a program is infringement. For example, 117(b) states that copies so prepared may only be transferred only along with the transfer "of all rights in the program." Does that mean "all rights in the [copy of] the program" to more closely reflect the distinction they were otherwise careful to make between a copy and the computer program as a work protected by copyright?
On the UCC front, I completely agree with you that 2-207 makes it clear that such terms are only "proposals for addition to the contract" in contracts not between merchants. I don't see how that necesesarily means that they cannot become part of the contract absent explicit indication of assent to the modified agreement. 2-207(3) repeats the proposition from 2-204 that "Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract." There are a whole host of factual issues to be considered in that analysis, but I think it a difficult argument to make that 2-207 prevents the addition of terms to a contract between a merchant and a nonmerchant (or between nonmerchants).
Anyways, it's too damn late (early?!?) and I've got to try to get some sleep. I'm sure there are flaws in my thinking and I hope you'll continue to point them out to me.
What, then, of 17 U.S.C. 503 allowing a court to impound and, eventually, destroy copies made in violation of the 106 rights and "other arcitles by means of which such copies or phonorecords may be reproduced." Granted, this requires an infringement action and an injunction, but it still indicates that Congress doesn't seem to view ownership of a copy made in violation of a 106 right to be lawful.
Yeah, I'm still in law school, so the "spirit" is a bit clearer to me than to most, but I am also looking only at the letter, specifically 37 C.F.R. 1.56. It requires the disclosure of not only patents, but "all information known to that individual to be material to patentability." Now, there's a hell of a lot of wiggle room around "material to patentability" (which has it's own subsection of the regs) but the obligation is still there. You're right that a lot of companies will try to disclose as little as possible and limit their disclosures to very general art. In this case, Nintendo themselves disclosed a lot of "real world" prior art, such as MAME, bleem! and Snes9x. I'm not sure I agree with you though that "Big corporations don't need that insurance." I work for a decent sized law firm who works for a very large corporation and I have had to do a number of patent searches and patentability opinions for that client before they would even consider filing an application. As for applications being granted on the first try, that's not been my experience. It's far more likely that an application will be rejected on the first try and, if it isn't, then the attorney drafting the claims should probably be sued for malpractice because they didn't draft broadly enough.
But, as I read BiggerIsBetter's argument, if I purchase a copy of a GPL'd program and the GPL is later found to be invalid, I can then use that program however I want because there was no valid license and I own a copy of the program. If I'm misapprehending that, please correct me.
Perhaps I was less than clear. I never meant to imply that you do not own a copy of software you purchase. The meduim on which you purchase software is yours, just as the little five-inch diameter piece of plastic holding the latest [insert crappy band name here] album is yours, but that doesn't grant you any ownership interest in the software on that medium.
Why would the UCC render a purported license inoperative? We've looked a fair amount at UCITA and UETA in my e-commerce class with respect to software licensing and it would seem to me that, at least UETA and ESIGN, having effect in most U.S. jurisdictions, emphasize that a license is not invalid merely because it is electronic. Maybe I don't understand your point.
Finally, 117 does only apply to owned copies of software, but, as I said above, I don't deny that you own the *copy*, you just don't own the *software* but rather you license it. Also, 117 does allow for copies to be "leased, sold, or otherwise transferred" which leads me to believe it would apply to copies of a software program that were licensed (the physical copy that is). 117 also only allows such extra copies to be made "as an essential step in the utilization of the computer program in conjunction with a machine and... in no other manner" Section 101 doesn't define "machine," but I would be willing to bet you'd have a hard time finding a court outside the 9th circuit to hold that it meant anything other than the machine for which the software was created.
You own the physical medium on which the software is carried. You do not own the copyright to the software. Adobe v. SoftMan doesn't tell us any different. The judge in that case, quite wisely, held that SoftMan was doing nothing more than exercising its rights under the first sale doctrine to sell a *particular copy* of the software that it purchased:
In short, the transfer of copies of Adobe software making up the distribution chain from Adobe to SoftMan are sales of the particular copies, but not of Adobe's intellectual rights in the computer program itself, which is protected by Adobe's copyright. SoftMan is an "owner" of the copy and is entitled to the use and enjoyment of the software, with the rights that are consistent with copyright law. The Court rejects Adobe's argument that the EULA gives to purchasers only a license to use the software. The Court finds that SoftMan has not assented to the EULA and therefore cannot be bound by its terms. Therefore, the Court finds that Adobe has not demonstrated a likelihood of success on the merits of its copyright infringement claim.
It is abundantly clear from this that you do not own anything more than the medium on which the software is distributed. You do not, by the mere purchase of a CD, obtain any of the exclusive rights under 17 U.S.C. 106.
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IANAL (yet) either, but I do know enough to know that there is a difference between an employee and in independent contractor. The question will probably be whether the outside firm qualifies as an employee or is only an IC. That's no excuse for Univention's lawyers allowing the loophole in the first place though. It should have said 'TSG or their agent' from the beginning.
Don't get me wrong, I think TSG's claims are laughable. If anything, I think my comments were intended to show just how silly TSG is. Also, get the facts right. Not to defend them, but TSG has never claimed that Linux "is so tainted with [their] patents" if only for the fact that they don't have any significant patents (if any). I think it most likely that TSG has chose not to show what they claim to be infringing code as a business strategy to delay the inevitable for as long as possible in order to benefit their executives and benefactors as much as possible before the whole house of cards comes crashing down. That's just my opinion, I could be wrong.
They could "work[] to create legal conditions" the same way they are here, through litigation. If TSG succeeds in their litigation here in the US they would have effectively created legal conditions (i.e., precedent indicating Linux infringes TSG copyrights) which would pressure Linux users to purchase licenses from TSG.
It's this kind of behavior that helps us see why they're afraid of showing code. They think that as soon as they do someone will find a clever way around their claims, just as they would do if put in the same position. Now, that doesn't change the fact that a lot of someones will probably find a lot of clever ways around their claims, but isn't that exactly what they should want if they were living in the same world as the rest of us?
Try using "emerge -B gcc" on another system and "emerge -k gcc" on the dead one (after copying the package over to /usr/portage/packages/All). If you don't have another system, let me know what USE and CFLAGS you need and I'll see what I can do to get you a package.
Anyone who's visited the Gentoo Forums wouldn't say that Gentoo doesn't care about customers (broadly defined). What the Gentoo project doesn't care about is milking every last dime out of every possible customer.
Yeah, for some reason the slashcode insists on putting a space before the last twelve bits so it reads "J2 ZS4" where it should read "J2ZS4" which will give you the final "e." Any suggestions for preventing that would be appreciated.
Which is why Portage is so handy. It builds from source and takes care of package removal. It also offers config file protection so a new version of a package doesn't stomp all over your carefully configured system.
You don't have to wait days to get a working Gentoo system. With the GRP CDs you can have a working system up and running in a few hours. It's still going to take more time than Fedora or SuSE, but it will be optimized more for your platform with the option of recompiling for further optimization. That's how I setup Gentoo on my laptop as it's hideously slow. Over time it's had almost everything recompiled a piece at a time, but I didn't have to wait for it to do everything from glibc up at once.
Maybe he forgot that they slipped that donation increase into McCain-Feingold to further stick it to the Dems.
Ok, time to take off the tinfoil hat. ;) Any wacko who's going to go on a killing spree because his candidate didn't get elected is more likely to do it randomly or find a rally for the opposing politician at which to wreak havoc. He doesn't need contributor info for that. And, as for the candidates themselves, they already have that info, it comes on the checks they get and they're the ones providing it to the FEC, who then makes it available to sites like that.
Clarify the potential for misuse please. Are you saying, for example, that I should be afraid of my boss finding out who I contributed to and retaliating because of it?
you mean you wouldn't rather have a 5'+ dick?
What ever happened to self-regulation? I thought that was the holy grail for this administration. I don't see why advertisers can't force the networks (and remember, the FCC only controls the networks) to reign in their shows during times when children might be watching. All this will do is force the content onto cable, but since cable is so widespread there will still be (even more?) cries for regulation, forcing the FCC to seek regulatory control over the cable networks. Then we're taken completely afield from the scarcity and public interest justifications for regulating indecency on the public airways and there is absolutely no reason for the FCC to regulate.
Gentoo is definitely the way to go. There's plenty of hand-holding available from the excellent install guide that just keeps getting better to the invaluable forum that has answers for just about any question you might ask. Personally, I much prefer the Portage system to either apt-get or (god forbid) RPM. Compilation time adds up, but if you have multiple machines and use distcc and make packages, it's not that bad.
Lawyers most certainly pay attention to sites like Groklaw. I was recently involved in a discussion with an attorney representing one of the companies involved in the whole mess covered at Groklaw and one of the first things said was, "I don't want any of this to show up at Groklaw." It's something they can't afford to ignore given the pace at which armchair lawyers dissect their pleadings and spark discussion, informed or otherwise, about the merits of the case. There are also a few nuggets of wisdom floating around on those type of sites that they would be wise to mine.
I know your sig says you're not a lawyer, but you seem to have a better grasp of these issues than some of my professors. Are you a student? A paralegal? What do you do? I've been trying to figure out how I can do technology law without doing patents (not because I can't sit for the patent bar, just because I don't really want to, I don't really care for the idea of software patents and if I have to do much more work like the provisional application I drafted today for an incremental improvement in a particular aspect of an anti-lock braking system I'm going to rip my hair out) and the CSO at my school is no help. Any advice?
I thought that was the point I was trying to make. Sorry if I didn't make it clear. Thanks for giving a succinct statement of what I was trying to get across in my ramblings.
This is totally incorrect. You're failing to distinguish between a work as a whole, and a copy as a fixed medium embodying an individual instance of a work.
I don't think I am, but let me try to elaborate on my thinking and you can, as you have so ably done before, poke holes through it! We seem to agree that the purchase of a CD containing software results in the ownership of that CD by the purchaser. Where we seem to diverge is what rights come with that ownership. I don't think we would disagree that there is the right to dispose of the CD, i.e., through sale. I also don't think we would disagree that the purchase of the CD conveys any right to reproduce the contents of the CD to the extent that such reproducton is an infringement of a 106 right. Where that infringement occurs seems to be where we differ. I think you misapprehend my argument when you make the analogy to reading a book. When you read a book you do not exercise any of the rights granted under 106. Use of a computer program is different in that, of necessity, a copy of that program is made and the right "to reproduce the copyrighted work" is right there in 106(1). That brings us to 117 which tells us that, notwithstanding 106, it is not an infringement to make a copy of a computer program in certain circumstances. Let's look at the elements of the limitation of 106 embodied in 117(a):
it is not infringement for the owner of a copy of a computer program to make a copy or adaptation of the program provided
Now, I don't think we disagree about (2). The question really is how broad should the terms of 117(a)(1) be read. Is it essential to make a copy of a GBA ROM to run on an emulator when the ROM would run just as well on a real GBA without the intermediate copy? How is "a machine" to be interpreted? Your point that Congress well knows how to limit terms and could have chosen to do so is well taken. That said, Congress doesn't seem to have been very thoughtful in drafting 117 which, if I remember correctly, was a somewhat rushed response to the Peak v. MAI case holding that copying to RAM to run a program is infringement. For example, 117(b) states that copies so prepared may only be transferred only along with the transfer "of all rights in the program." Does that mean "all rights in the [copy of] the program" to more closely reflect the distinction they were otherwise careful to make between a copy and the computer program as a work protected by copyright?
On the UCC front, I completely agree with you that 2-207 makes it clear that such terms are only "proposals for addition to the contract" in contracts not between merchants. I don't see how that necesesarily means that they cannot become part of the contract absent explicit indication of assent to the modified agreement. 2-207(3) repeats the proposition from 2-204 that "Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract." There are a whole host of factual issues to be considered in that analysis, but I think it a difficult argument to make that 2-207 prevents the addition of terms to a contract between a merchant and a nonmerchant (or between nonmerchants).
Anyways, it's too damn late (early?!?) and I've got to try to get some sleep. I'm sure there are flaws in my thinking and I hope you'll continue to point them out to me.
What, then, of 17 U.S.C. 503 allowing a court to impound and, eventually, destroy copies made in violation of the 106 rights and "other arcitles by means of which such copies or phonorecords may be reproduced." Granted, this requires an infringement action and an injunction, but it still indicates that Congress doesn't seem to view ownership of a copy made in violation of a 106 right to be lawful.
Your post is so internally inconsistent that I won't even respond to it except to say as much. Try again when you've figured out the rules of logic.
Yeah, I'm still in law school, so the "spirit" is a bit clearer to me than to most, but I am also looking only at the letter, specifically 37 C.F.R. 1.56. It requires the disclosure of not only patents, but "all information known to that individual to be material to patentability." Now, there's a hell of a lot of wiggle room around "material to patentability" (which has it's own subsection of the regs) but the obligation is still there. You're right that a lot of companies will try to disclose as little as possible and limit their disclosures to very general art. In this case, Nintendo themselves disclosed a lot of "real world" prior art, such as MAME, bleem! and Snes9x. I'm not sure I agree with you though that "Big corporations don't need that insurance." I work for a decent sized law firm who works for a very large corporation and I have had to do a number of patent searches and patentability opinions for that client before they would even consider filing an application. As for applications being granted on the first try, that's not been my experience. It's far more likely that an application will be rejected on the first try and, if it isn't, then the attorney drafting the claims should probably be sued for malpractice because they didn't draft broadly enough.
But, as I read BiggerIsBetter's argument, if I purchase a copy of a GPL'd program and the GPL is later found to be invalid, I can then use that program however I want because there was no valid license and I own a copy of the program. If I'm misapprehending that, please correct me.
Why would the UCC render a purported license inoperative? We've looked a fair amount at UCITA and UETA in my e-commerce class with respect to software licensing and it would seem to me that, at least UETA and ESIGN, having effect in most U.S. jurisdictions, emphasize that a license is not invalid merely because it is electronic. Maybe I don't understand your point.
Finally, 117 does only apply to owned copies of software, but, as I said above, I don't deny that you own the *copy*, you just don't own the *software* but rather you license it. Also, 117 does allow for copies to be "leased, sold, or otherwise transferred" which leads me to believe it would apply to copies of a software program that were licensed (the physical copy that is). 117 also only allows such extra copies to be made "as an essential step in the utilization of the computer program in conjunction with a machine and ... in no other manner" Section 101 doesn't define "machine," but I would be willing to bet you'd have a hard time finding a court outside the 9th circuit to hold that it meant anything other than the machine for which the software was created.