You can't claim any damages that occurred between your becoming aware of infringement and filing suit.
Sure you can. You can claim damages for damages that occurred between your becoming aware of infringement and filing suit. However, the other side can raise laches as a defense. If you delayed unreasonably in taking action, then the judge might bar your claim to earlier damages.
What is reasonable and what is not? You can't look at the patent statute to find out, laches are a judicial remedy for inequitable conduct. Thus, you have to go through Federal Circuit cases to find cases that are most similar (and probably distinguishable given a particular set of facts).
It would probably get very complicated in case where a third-party has allegedly infringed for some time, but the patent owner sued (or countersued) a new alleged infringer based on recent conduct. If the patent owner did not plan on suing the third-party, then why is unfair to wait until the recent conduct before suing the new alleged infringer?
If Panasonic was concerned about 3rd party suppliers selling unsafe batteries, it could sell licenses with strict requirements or set up a certification program to test the safety of the batteries sold by these suppliers.
It is a bit easier to sell licenses if third parties are also unable to make compatible batteries without access to a particular technology. Otherwise, third parties can simply put their competing products on the market without bothering to go through the certification process (anticipating that most consumers won't bother to look for the certification markings).
Locking out competition to create an artificial tie-in between the camera and the battery is anti-competitive, in my opinion. There are ways to ensure the safety of customers without a tie-in that undermines market-based competition.
The problem for Panasonic isn't just that third-party battery manufacturers might be lowering the cost of replacement batteries. Some third-party battery manufacturers probably produce low-quality batteries and then sell them as counterfeit Panasonic batteries. If one of those batteries blows up, Panasonic gets all the blame even without being at fault because the injured consumer thought he or she had a Panasonic battery.
Fortunately, there is a big market for digital cameras with a fair number of suppliers. Even if Panasonic is just trying to increase replacement battery profit margins, they can only go so far without consumers deciding to purchase cameras from someone else.
I can't believe he admitted it. "After all, US copyright-based industries continue to be one of America's largest and fastest-growing economic sectors."
Why can't you believe that he "admitted" that it is in the economic interests of the United States to ensure that its copyright-based industries continue to develop? He is a Senator. His job is to identify and protect the interests of the citizens of the United States. That is what all legislators are supposed to do. There is a lot of debate as to what those interests are and how to protect them, but it would seem silly to sponsor legislation and then pretend that no one's interests are being protected.
What is sad is how frequently remarks made by politicians are isolated and magnified to overly simplify their positions. In those same set of remarks, Senator Hatch talks about the problem of orphan works:
I also continue to be very active on passing orphan works legislation.
Last year, the Senate unanimously passed bipartisan legislation to encourage the use of orphan works - works that may be protected by copyright but whose owners cannot be identified or located. Countless artistic creations - books, photos, paintings and music - around the country are effectively locked away and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.
Unfortunately, it often isn't easy to identify or find these owners of copyrighted work. To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward.
For years, I have been working with industry stakeholders and copyright experts, including Marybeth Peters, Register of Copyrights, to pass orphan works legislation. The bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. I couldn't agree more with Register Peters when she said, "A solution to the orphan works problem is overdue and the pending legislation is both fair and responsible."
You may not agree with every position that the Senator makes, but an interpretation of his positions that is driven by something more than just sound-bites shows that he is interested in protecting more than just the interests of copyright owners. Finding the best ways of protecting the interests of copyright owners, content producers, distributors, consumers, technological innovators, etc. is a challenging task. Oversimplification of the issues based on the perspective of one interest group doesn't make the task any easier.
Cough, you don't ahve to. I can copy your book all gad damn day long and have not violated your rights or the copyright code.
The moment I try to distribute them, then it's a copyright violation.
Be sure to check out the exclusive rights in copyrighted works before making blanket assertions on what is and is not legal under copyright law. The exclusive rights granted by copyright include both reproduction and distribution. There are lots of exceptions to these exclusive rights, but an interpretation that completely eviscerates the exclusive right to reproduce a work is not supported by the Copyright Act.
34K on a default judgment? Default judgment means he lost because he never showed up. How did you spend this much against a guy who never showed up to defend himself?
Create a PACER account and look up "Fortuny, Jason" in the U.S. Party/Case Index to find the history of the case (there is a charge of $0.08 per page, but I believe it is waived if your total is under something like $10 / year). There are 46 documents entered as part of this case. Not all of them were written by the plaintiff's lawyers, but a good chunk of them were. And the plaintiff's lawyers had to read the documents that they didn't write.
First, the plaintiff's lawyers had to write a complaint (no complaint, no case). Fortuny made it difficult for the plaintiff's lawyers to serve him, so they made an argument that he had actual notice of the complaint (the point of service) and could be fairly brought under the court's jurisdiction.
Fortuny wrote an informal letter to the court, which the court treated as a motion to dismiss. The plaintiff's lawyers modified their complaint and argued that the court should not dismiss the case.
Some more motions were made for various reasons, ultimately leading to Fortuny's loss. I think there were at least two or three hearings that the plaintiff's lawyers showed up for that Fortuny did not show up for.
Making arguments takes time. Preparing to show up in court and then showing up in court takes time (even when the other side doesn't show). When legal fees are over $200 / hour, the costs add up quickly (at $200 / hour, $34,000 is only about one non-mythical man-month of work).
There is one flaw that I see in the Safe Harbor provisions, and that flaw is simply that there is no recourse against a false claim of infringement. Processing these requests does cost time, money, and at least some period where content can be made unavailable.
Au contraire, subsection (f) of the various safe harbors states that:
Any person who knowingly materially misrepresents under this section--
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Perhaps it should be necessary to post a bond for the maximum amount of "claimed damages" prior to sending the notice, just to prevent damage to innocent non-infringers?
It is an interesting idea. Of course, laws generally are supposed to be, and should be, neutral with regards to the parties who bring claims. A bond requirement would probably hurt those with empty pockets more than those with deep pockets. Moreover, if a bond had to be posted for every notice submitted, then all copyright infringers would have to do to multiple the amount of money required up front would be to post the infringed work on many different sites (doing that already has the effect of making it difficult to find all infringing copies of a work).
The fact that you have to comply with a DMCA takedown doesn't mean that you're responsible for the comment.
It means you're responsible for the comment, only if you ignore the takedown notice.
That's not quite accurate. If you comply with a DMCA takedown notice, it means you are protected from monetary damages, even if you put the work back up because of a counternotice provided by the user. If you do not comply with a DMCA takedown notice (e.g., if you are one of the countless service providers that has not designated an agent to receive a DMCA takedown notice), then you are no longer protected from monetary damages by the DMCA safe harbors. But, that doesn't mean that you are responsible for the user data either.
If there is no infringement, you are in the clear (unless you get sued but don't defend yourself). If there is infringement, then your liability could depend on factors such as whether you exercise control over what your site publishes, whether you had knowledge of the infringement, whether you promoted use of your site as a place for infringement, and whether you benefit as a result of the infringement.
Service providers did not want to face the uncertainty of whether the courts would find them liable for their users' content and what factors would affect the outcome of trial. I believe that they were the biggest supporters of the safe harbor provisions of the DMCA. The rights of users and the desire to avoid stiflement of free speech led to the counternotice-and-putback part of the safe harbor provisions (a provision sadly missing in the DMCA safe habor counterparts in parts of the world such as the European Union).
Unfortunately, the anonymous reader who posted Church of Scientology material (see grandparent comment) did so, well, anonymously. Thus, there was never an opportunity for a counternotice to be submitted by the user who posted the material. Perhaps someone could have claimed responsibility for having posted it and submitted a counternotice. But, that would mean providing a name, address, and telephone number, then consenting to the jurisdiction of U.S. Federal Courts.
Of course, Slashdot could have ignored the original notice and tried to face down a potential lawsuit from the Church of Scientology (not that I blame them for not wanting to go through that). But, Slashdot would have faced such as threat regardless of the DMCA safe habor provisions. At least the DMCA safe habor provisions meant that there was no need for Slashdot people (or scripts) to scan comments for potentially instances of infringement. And the DMCA counternotice-and-putback provision provided an opportunity for someone else to take on the monetary risks of possible infringement.
If Slashdot did not take advantage of the DMCA safe habor, or if there were no DMCA safe habors, that would not meant that Slashdot would be liable in court. It would just mean that Slashdot would have one affirmative defense fewer to hide behind and that the question of responsibility would be an open one for the courts to decide.
"Probable cause", not "plausible cause"; see U.S. Constitution, Amendment IV
You're right...although the courts have interpreted the burden of proof needed for probable cause to be so low that it could almost be called plausible cause. Of course, for seizing and holding onto equipment like this, the evidence showing probable cause should not be trivial. I think that's why the EFF supporting memorandum makes a big deal about the burden placed on the suspect given that he does not have access to his laptop, his cell phone, and other personal items.
It's not as scary if you read the application for search warrant instead of the slashdot headline. The detective who filed the application had interviewed the suspect's roommate, who said that, among other things, he had "observed [the suspect hacking] into the B.C. grading system that is used by professors to change grades for student," that he suspected the suspect of damaging his brand new computer, and that the suspect had posted a fake web site profile of the roommate. Other evidence, such as network reigstration information, supported the detective's belief that the suspect had engaged in at least some of the alleged activities.
The evidence needed to show plausible cause for a search warrant is very low, but it certainly isn't as low as merely using a Linux operating system. This search warrant is not evidence that the sky is falling.
I am extremely disappointed, to say the least. These scum have caused huge amounts of trouble to innocent victims. The **AA's are just bullies.
I have strong feelings on this issue -- I really don't care what else Obama does, this makes a future vote for him impossible.
Wow! Pretty strong feelings. Have you actually looked at how Mr. Gershengorn fits into into this bullying that you speak of? According to his online biography, it seems that Metro-Goldwyn-Mayer Studios Inc. v. Grokster was the most important case he was involved in as a representative of the motion picture and recording industries.
How did that case end? The Supreme Court found that Grokster could be held liable for distributing "a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." 545 U.S. 913 (2005).
His biggest case of bullying resulted in the Supreme Court unanimously saying "if you go around telling everyone to use your technology to violate copyright law, you might have to take responsibility for subsequent violations of copyright law using your technology."
Granted, the argument for infringement in that case was much broader, but still, it doesn't seem like he has been on the forefront of bullying efforts.
Moreover, he has represented a lot of different groups in a lot of different matters. Take a look at that bio again. He's represented telecoms, the Association of American Railroads, the National Association of Broadcasters, supporters of the separation of church and state, and multiple Native American tribes.
Do you really want to judge him without reviewing some of his broader record? Do you really want to label him as "scum" without even looking at what his positions were and now are?
You wouldn't want someone to label you as anti-Native American because you showed hostility to someone who represented Native American tribes, would you?
Of course not. It wouldn't be a fair assessment of your values and qualifications. Neither are the uninformed knee-jerk assessments showing up on/. fair, either to Mr. Gershengorn or to Mr. Obama.
The PTO may still be accepting them, but I imagine the first time one goes to court they will be overruled. The decision is very specific: to be patentable, the subject of the patent must either "[be] tied to a particular machine" or "transform[...] an article". A storage medium is not a machine itself, and is not as far as I can see tied to a particular machine; nore does it transform an article. I note that the article you link to cites a federal court decision that such items are patentable, which obviously means that until such decisions are overruled explicitly by a court of appeals or the supreme court the PTO should continue as if it were still valid, but I would think that such an appeal court would, in light of the recent decision, look again and see that such claims are invalid.
In re Bilski only deals with the patentability of certain process claims. Patents can be granted to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. Sec. 101. Beauregard claims do not really claim a process, they claim an article of manufacture. They really do not fit within In re Bilski at all.
The scope of In re Bilski is very important. Lower courts are limited in how far they can stretch the decision.
Even the Court of Appeals for the Federal Circuit (the appeals court that decided In re Bilski) is limited in what they can do with this decision. Individual three-judge panels on U.S. appeals courts are bound by precedents established by any panel of the given appeals court. The Court of Appeals for the Federal Circuit has to hear a case en banc (all the judges at one time) to overturn its own precedents. Since the Federal Circuit has exclusive appellate jurisdiction over patent cases, they are the ones who would need to hear an appeal.
This means that any precedents that were in place before In re Bilski, and were not affected by the decision, are still binding on everyone except the Court of Appeals for the Federal Circuit sitting en banc or the Supreme Court of the United States. The Court of Appeals for the Federal Circuit noted that:
It is undisputed that Applicants' claims are not directed to a machine, manufacture, or composition of matter. Thus, the issue before us involves what the term "process" in 101 means, and how to determine whether a given claim...is a "new and useful process."
This suggests that the holding of In re Bilski is limited to process claims and that many other types of claims that are used in software patents are unaffected.
Bilski was about business method patents not tied to any machine. The Federal Circuit tried to make this clear in the In re Bilski opinion itself (page 21):
We further reject calls for categorical exclusions beyond those for fundamental principles already identified by the Supreme Court. We rejected just such an exclusion in State Street, noting that the so-called "business method exception" was unlawful and that business method claims (and indeed all process claims) are "subject to the same legal requirements for patentability as applied to any other process or method." 149 F.3d at 1375-76.[Fn23 Therefore, although invited to do so by several amici, we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court.]
It is true that the validity of many broadly drafted claims may be at issue, but many software claims just do not make sense unless the claims are understood to be tied to computational devices. For example, Beauregard claims, which are claims on a computer readable media adapted to implement a method or system, are considered patentable by the PTO. These kind of claims are very popular because they allow patent holders to go after the software distributors rather than end-users.
It will be harder to enforce software patents, now that the defense lawyers can wield Sec. 101 with more power. But it is a mistake to declare victory against software patents based on a case where all the PTO wanted was for the patent applicant to add "computer implemented" to the claim language.
Someone correct me if I'm wrong, but I don't think the patent examiner's job is to check for prior art. Scanning the entire patent library for prior art is a non-trivial task which cannot be automated or done properly in a hurry.
The patent examiner's job is to check for prior art. They use keyword searches over multiple databases. They also identify related classes of invention and do a quick check (e.g., checking out the abstracts and drawings) of dozens, if not hundreds, of patents, to try to find relevant prior art. They actually do a decent job in most cases, which is why virtually all issues patents were initially rejected.
That being said, prior art can be in any language, any time before invention, and just about anywhere "public" (e.g., a German masters thesis in a school library, a brochure distributed at a trade show, or source code in a public CVS repository). No patent examiner is capable of doing an exhaustive prior art search, especially since patent examiners, like everyone else, have limited time.
It is possible for the patent prosecution process to be more exhaustive. Just hire more examiners and give them more time to search. Of course, when you hire more examiners, you need to pay more to attract talent. You also have to pay the additional workforce. Thus, a more in-depth patent prosecution process costs more, which means fees would need to be higher (discouraging small businesses and independent inventors from securing rights in their inventions) or the patent office would need to be subsidized by public funds (costing taxpayers money).
It's actually the responsibility of the person submitting the patent, and if they're wrong, they're vulnerable to expensive lawsuits from anyone who does hold prior art.
Not exactly (at least not in the United States). The person submitting the patent has to provide the patent office with a list of the prior art that the person is aware of. If the person is not aware of any prior art, then the list that gets sent is empty. If the person submitting the patent (or that person's representative patent practitioner) fails to disclose known prior art, or misrepresents submitted prior art, then the entire patent can be thrown out. This is actually a problem because it discourages patent practitioners from saying anything about why they believe the prior art they are submitting might be relevant, wasting the time of patent examiners.
It is actually a good idea to look for prior art when drafting the patent, even though there is no duty to conduct such a search. Drafting around prior art enables patent applicant to obtain broad scope without having to narrow their claims during patent prosecution (which, due to the Festo cases, can drastically narrow the claimed invention scope).
The third possibility, however, is that prior art exists but isn't patented -- meaning the patent examiner wouldn't be able to find it in their library anyway.
Patent examiners have access to many databases, but not all prior art can be found in their databases. Moreover, the patent databases are probably the only sources of prior art that are categorized at a fine enough granularity (400 classes further divided into 150,000 subclasses) to be useful to patent examiners trying to find prior art without relying on exact search terms (an issue given that terminology changes over time).
That means the patent submitter is not as likely to be charged with wrongdoing, but the patent will remain in force until someone takes the time to point it out.
If the patent submitter misses something, then the whole patent may not be lost if at least one of the claims is not anticipated by or obvious in light of the prior art. It is only if the patent submitter knew about the art, but withheld it from the patent office, that the whole patent would be lost due to wrongdoing.
Of course, with the quality of patents granted, the language and the overly broad claims means someone reading patents may very well conclude that there is no software they can possibly write without 'the possibility that they might be infringing a patent'.
Methinks that I should have phrased it as "often times, the possibility that you might be infringing a particular patent is pretty clear from a cursory reading of that patent." It does make a difference whether you are assessing the risk of infringing any patent versus the risk of infringing a particular patent. After all, if there are 1,000 patents that relate to your work, and if for each patent there is only a 0.07% chance that you infringe it, then there is a 50% chance that you infringe at least one of those patents.
The other issue is that, if you're creating a new product, and you know that its covered by a patent, you're willfully infringing on the patent, and are vulnerable to additional liabilities. If you can prove that you didn't know about the patent when you created the product, then you're not going to be hit as hard if you're found infringing.
That is indeed a core reason why engineers are often discouraged from looking at patents. Another reason is that they have a tendency to document their thoughts with emails that say things like "I think we infringe this patent," even when they have not properly analyzed the claims of the patent or its validity (you really need a qualified lawyer for that kind of work).
On the other hand, it is really stupid advice perpetuated by lawyers with little to no training in risk management. If reading a patent trebles the potential damages, but reduces the probability of infringement to less than one-third of the original probability of infringement, then reading the patent is better than ignoring it.
Often times, the possibility that you might infringe a patent is pretty clear from a cursory reading (which is all you can handle when wading through hundreds of possibly relevant patents). In many cases, you can at least tell whether a patent might be related to the work you are doing. Those that are too far out-of-field can be ignored while those that look suspiciously familiar may require referral to a qualified lawyer.
True, one of those out-of-field patents may come back to bite you because of broad claims. But, if they are not clearly related on their face and the most relevant patents were reviewed in more depth, then you have a pretty solid defense against claims of willful infringement. If, in the process of reviewing all those patents, you managed to engineer around or negotiate licenses for a few patents that appeared closely-related, you may have considerably decreased your risk of being sued. You just have to make sure no one sends around any emails that say "I think we infringe this patent."
Isn't it more than a bit arrogant and unrealistic to think the US is the only country with these technologies?
It's not particularly arrogant or unrealistic to think that the US has developed a particular technology and that many other countries have not developed a competitive technology yet. Technological development takes time and resources. Every country, company, organization, and individual has limited time and resources. Many countries have technologies that are very old. If they can purchase more advanced products and reverse engineering them, then they can save significant research and development costs. If the U.S. can keep such products out of the hands of certain foreign nations, then those foreign nations have to go through similar research and development efforts to try to bridge the technological gap. Of course, the U.S. government and U.S. companies continue their own R&D efforts, which helps to expand the technological gap.
Many of the technologies that are under export control are really nasty technologies. Truth is, it would be best if nobody had access to them. One possible benefit of export controls is that, by limiting the potential market for subject technologies, there is less incentive for companies to develop such technologies.
Of course, what the government considers potentially nasty sometimes conflicts with the needs of the public (e.g., strong cryptography). Care should be taken to address such conflicts, but they don't negate the potential value of export control to strengthening national security.
I'm going to need a little bit more explanation that isn't in TFA. The judge has been presiding over a trial for 5 years in which only one side is allowed to speak? Is this the result of some RIAA-lobbyist induced law that says the other side doesn't get a say, or for some reason did the judge declare the other side didn't get to talk in this case? Are the next five years of the court case going to be "Now the RIAA doesn't get to talk, defendants only."?
The answer to your main question is no, the judge has not presided over any cases where only the RIAA was allowed to speak for 5 years. The judge has presided over cases where defendants have ignored the courts. This has led to frustration for everyone involved.
Much of the judge's frustration was that there are so many defendants who are so overwhelmed with the legal process that they do not even respond to the complaint that begins the proceedings. In the complaint, the plaintiff sets out the reasons why the plaintiff believes that the defendant is liable. That complaint is sent to the defendant, who generally must answer the complaint, admitting to or denying each allegation. When defendants do not respond to a complaint, the court treats the allegations as true and enters a default judgment against the defendant.
One of the defendants present at this conference said that his son was the one who committed copyright infringement. He had not answered the complaint. Judgment was entered against him.
The court said that it would consider setting aside the default judgment (re-open the case), but only after defendant talked about settlement with the plaintiffs' attorneys.
The plaintiff's attorneys were persuasive it seems, because they had reached agreement on settlement of the default judgment: $4,650, spread out over seven years eight months at $50 a month. No interest on the amount owed.
Was this fair? The courts cannot fairly adjudicate disputes when only one side bothers showing up. Moreover, according to one of the plaintiff's lawyers, the defendant's son refused to talk settlement, to take responsibility for the acts of infringement. If the judge had set aside the default judgment, the plaintiffs probably would have asked to have the case dismissed, right before filing against the defendant's son. The defendant took the hit instead.
The judge is obviously frustrated with a system that leads to these kinds of outcomes, but there is plenty of blame to spread around. The plaintiff's lawyers aren't educating defendants enough about the consequences of failing to even show up. Congress set minimum statutory damages which add up very quickly. The courts have established procedures that are downright scary to non-lawyers. The defendants close their eyes and try to wish away complaints instead of seeking advice. RIAA members continue to rely on business models that depend on the purchase of CDs and paid downloads of individual tracks. Programmers continue to develop software that makes it look like sharing music files is free and risk-free. And consumers continue to download songs without paying for them and to share songs with strangers (including some who work for the record companies).
It's either have your taxes pay for it or you pay for it, but money is required for the service. As taxes aren't going towards it right now (or at most subsidizing it), they need to have you pay it. It is however, not-for-profit.
It's actually a pretty reasonable fee. Public records that are available for inspection on-site typically cost $0.25 per page to copy. With PACER, opinions are often provided for free. You don't pay unless you accumulate at least $10 worth of charges / year. Charges are capped at $2.40 per document (that is, you can get a 100 page document for the price of a 30 page document). You can also apply for an exemption in certain situations where an "exemption is necessary in order to avoid unreasonable burdens and to promote public access to information." And its all DRM-free, for those inclined to share digital court records with others.
And there's your sticky issue, what exactly are the damages.
From the court order itself (which you can download for about $0.40) there were a set of undisputed facts:
1. MDY began selling Glider on June 14, 2005. Through September 10, 2008,
MDY has sold approximately 120,000 licenses for Glider. The amount of gross revenues
received by MDY from the sale of Glider from June 14, 2005 through September 10,
2008 is approximately $3.5 million dollars.
2. Blizzard spends at least $942,614.57 per year responding to customer
complaints as to bots generally and implementing a bot enforcement program to decrease
the number of bots in the game. Glider represents the large majority of bots used in
connection with World of Warcraft.
3. Between December 22, 2004 and March 18, 2008, Blizzard received more than
465,000 in-game petitions from users complaining about bots. Several thousand of these
petitions mention Glider by name. Blizzard has continued to receive complaints about
bots generally, and Glider specifically, after March 18, 2008.
There were also a set of disputed facts and legal conclusions:
1. That MDY and/or Donnelly's conduct caused harm to Blizzard both in the form
of the direct expenses used to combat Glider use and infringement, as well as in the form of lost subscription revenue, lost profits, and harm to Blizzard's goodwill and reputation.
2. That Blizzard's damages expert would testify that the lost subscription revenue
and harm to Blizzard's goodwill and reputation can be quantified to exceed $20 million
dollars.
3. That MDY and/or Donnelly's conduct was willful and wanton and an award of
the highest amount of statutory damages--$2,500 per sale of the Glider software--would
be appropriate.
4. That Blizzard is entitled to an award of punitive damages against MDY and
Donnelly for their intent to cause injury to Blizzard or because they were motivated by
spite or ill will or because MDY and Donnelly acted to serve their own interests, having
reason to know and consciously disregarding a substantial risk that their conduct might
significantly injure Blizzard.
It looks like the $6M are actually stipulated damages. That is, both parties have agreed that if there are to be any damages, they will be $6M exactly. Issues of liability can still be appealed. But, issues of what the damages should be are no longer in dispute. This means that Blizzard and MDY can both keep their legal costs down. Instead of sniping about damages (spending $10 to prove $1 in damages), they can keep their lawyers arguing a handful of core legal issues.
Sure, the law might be smudged. Judges reinterpret laws all the time. However, most courts are unlikely to smudge a law like this in a politically unfavorable way when there is a plausible interpretation that won't generate mainstream criticism. The plausible interpretation in this case is that the law is designed to guarantee that third-party candidates have access to the ballots if they follow minimal procedure.
Take a look at the Texas Supreme Court opinion that, according to this press release, supposedly states that Texas law "does not allow political parties or candidates to ignore statutory deadlines." The case actually allowed a candidate to get on the ballot despite filing mistakes (the quote simply limits the scope of the opinion as opposed to carving out the meaning of the statute in stone as Mr. Barr seems to claim).
The courts have a bias in construing election law to favor allowing candidates onto the ballot (thus letting voters ultimately decide the issue of electability) instead of disallowing candidates from the ballot (thus effectively taking the final decision away from voters).
Ultimately, you don't need to apply strict rules of interpretation to guess which way the Texas Supreme Court is likely going to go with this case. You just need to know what interpretations of the statute are plausible and what is most likely important to the judges.
Chances are that McCain and Obama will be on Texas ballots in November. The law that Mr. Barr cites states that a "political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if" it the party gets its certification of nominees in on time (emphasis added ).
Being entitled to a benefit based on a condition does not mean one is prohibited from receiving that benefit if the condition does not apply. A => B does not imply that B => A. If the Democrats and Republicans got their nominations submitted on time, then McCain and Obama will be on the ballots in November. That does not mean that if McCain and Obama are on the ballots in November that they got their nominations submitted on time.
Of course, A => B does imply that !B => !A. Thus, if McCain and Obama are not on the ballots in November, then the Democrats and Republicans did not get their nominations submitted on time.
Maybe there is something else in the Texas code that Mr. Barr can use in his argument. But, his reliance on this section alone is not enough to win the day.
I notice a lot of people tend to make really really really generic patents these days, presumably to give them more control over who they get to sue, but when it comes to Prior art, does just one instance invalidate the whole patent, or does it only invalidate certain aspects of it?
Each claim of a patent is presumed valid independently of the validity of the other claims. See 35 U.S.C. Sec. 282. If one claim is invalid, then other claims that include additional or different limitations will still be presumed valid until proven otherwise.
You may have noticed that patent claims themselves form a hierarchy. At the top of the hierarchy are the independent claims. You can recognize them because they do not refer to other claims in the patent. Then there are dependent claims. These are claims that add additional limitations to the claims from which they derive. You can recognize them because they refer to other claims in the patent.
The independent claims, which have the fewest limitations, are the easiest to knock out with prior art references. The dependent claims, especially dependent claims that depend on dependent claims, are the hardest to knock out with prior art references, but are easier to engineer around (all you have to do is ensure that your own implementation does not include one of the limitations or its equivalent; but you still have to be careful because the courts often find weird equivalents when it comes to litigation). Patent practitioners usually draft a variety of independent and dependent claims to make a patent harder to fully invalidate or engineer around.
Because it is hard to knock out all the claims of a patent, defendants in patent litigation often look to ways to attack a patent as a whole. Defendants often accuse the patent applicant of withholding information from the patent office, such as knowledge of prior art or the best mode embodiment of the patent. They may even try to find inventors who were not named on the patent application and license the patent independently from them.
I suggest going beyond just putting your name in the code. Put your name on anything you produce or touch. If you don't put your name on a document, then you are communicating that you are happy to let others take the responsibility and credit for the work you have done. If you put your name on the work you've done, then you are showing that you are willing to be accountable for the quality of your work and that you want credit for your accomplishments.
You may still find that your work is taken without any credit being given. It is rude not to give credit when a supporting work has been properly labeled. If you've already distributed your work around (e.g., by asking people to review your efforts and give you feedback), then you are less likely to run into trouble because your supervisor will not want to appear rude.
Make sure that you are producing works that people will read. Code isn't a great place to put your name in because not a lot of people bother to go through code. Document your accomplishments at a higher level. Produce some slides and short papers that talk about the system you've helped build. Give some presentations on what you did even.
Give credit to others. When you are implementing an idea your supervisor suggested, point out that it was his idea. If someone gave you assistance, then acknowledge the help. By showing your willingness to credit others, you are more likely to see them crediting you too. You will look like a leader if you are setting a good example. You may sound like a whiner if you are complaining about not receiving credit, but have not shown others the courtesy of your acknowledgments.
Be aware that your supervisor may not be purposely taking credit for your work. Your supervisor's supervisor may not really care who implemented the system and may just see your supervisor as the bellybutton for the system (after all...if you leave, who will be responsible for the future of the system?) Credit has a funny way of getting misplaced. In my own career, I've had tangential contact with some projects and been vocal about how minimal my own role bas been, yet I still am given more credit (and responsibility...especially responsibility) than I deserve.
Finally, do you really care? If you're in college still, this probably isn't the place where you're going to really start building a career. College jobs are often a starting point: you get experience and you make people happy so that they'll give you a good reference if you ask. If this is where you want to really build a career, then you should learn how to be more aggressive in seeking credit (while still being subtle). But if not, then you may want to let it slide.
Don't lawyers generally have to comply with their client's wishes? Even without constitutional rights being involved, I don't think a lawyer can just go off and present a defense that the defendant doesn't approve of.
The lawyer is the agent of the client, and so the lawyer generally must abide by the client's decisions concerning the objectives of representation. But, the lawyer is also a professional with independent ethical and professional obligations. Thus, the lawyer is responsible for establishing the means of representation, in reasonable consultation with the client.
For example, the lawyer cannot ethically use dilatory tactics (e.g., groundless motions and unwarranted requests for delay) or support the client in committing perjury (if the client insists on lying on the stand, the lawyer may be obliged to tell the court that the testimony given was false). For example, "[w]hatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely." See Nix v. Whiteside, 475 U.S. 157, para. 51. Of course, presenting a defense that the client does not want presented is different from refusing to present a particular defense.
That being said, there might be some circumstances where a lawyer could present a particular defense that the client did not want presented. If the defense attorney can show that the client is not competent to decide which defenses to use, then the defense attorney may ask the court to appoint a guardian to represent the client's interests. The court-appointed guardian may approve of a defense that the client disapproves of, enabling to the lawyer to put forth a particular defense against the client's wishes.
Personally I am blown away by the incompetence of the defense attorney. Clearly he must have understood Reiser (guilty or not) would not help his case by testifying. He should never have been put on the stand.
Slashdot Mirror
Sure you can. You can claim damages for damages that occurred between your becoming aware of infringement and filing suit. However, the other side can raise laches as a defense. If you delayed unreasonably in taking action, then the judge might bar your claim to earlier damages.
What is reasonable and what is not? You can't look at the patent statute to find out, laches are a judicial remedy for inequitable conduct. Thus, you have to go through Federal Circuit cases to find cases that are most similar (and probably distinguishable given a particular set of facts).
It would probably get very complicated in case where a third-party has allegedly infringed for some time, but the patent owner sued (or countersued) a new alleged infringer based on recent conduct. If the patent owner did not plan on suing the third-party, then why is unfair to wait until the recent conduct before suing the new alleged infringer?
It is a bit easier to sell licenses if third parties are also unable to make compatible batteries without access to a particular technology. Otherwise, third parties can simply put their competing products on the market without bothering to go through the certification process (anticipating that most consumers won't bother to look for the certification markings).
The problem for Panasonic isn't just that third-party battery manufacturers might be lowering the cost of replacement batteries. Some third-party battery manufacturers probably produce low-quality batteries and then sell them as counterfeit Panasonic batteries. If one of those batteries blows up, Panasonic gets all the blame even without being at fault because the injured consumer thought he or she had a Panasonic battery.
Fortunately, there is a big market for digital cameras with a fair number of suppliers. Even if Panasonic is just trying to increase replacement battery profit margins, they can only go so far without consumers deciding to purchase cameras from someone else.
Why can't you believe that he "admitted" that it is in the economic interests of the United States to ensure that its copyright-based industries continue to develop? He is a Senator. His job is to identify and protect the interests of the citizens of the United States. That is what all legislators are supposed to do. There is a lot of debate as to what those interests are and how to protect them, but it would seem silly to sponsor legislation and then pretend that no one's interests are being protected.
What is sad is how frequently remarks made by politicians are isolated and magnified to overly simplify their positions. In those same set of remarks, Senator Hatch talks about the problem of orphan works:
You may not agree with every position that the Senator makes, but an interpretation of his positions that is driven by something more than just sound-bites shows that he is interested in protecting more than just the interests of copyright owners. Finding the best ways of protecting the interests of copyright owners, content producers, distributors, consumers, technological innovators, etc. is a challenging task. Oversimplification of the issues based on the perspective of one interest group doesn't make the task any easier.
Be sure to check out the exclusive rights in copyrighted works before making blanket assertions on what is and is not legal under copyright law. The exclusive rights granted by copyright include both reproduction and distribution. There are lots of exceptions to these exclusive rights, but an interpretation that completely eviscerates the exclusive right to reproduce a work is not supported by the Copyright Act.
Create a PACER account and look up "Fortuny, Jason" in the U.S. Party/Case Index to find the history of the case (there is a charge of $0.08 per page, but I believe it is waived if your total is under something like $10 / year). There are 46 documents entered as part of this case. Not all of them were written by the plaintiff's lawyers, but a good chunk of them were. And the plaintiff's lawyers had to read the documents that they didn't write.
First, the plaintiff's lawyers had to write a complaint (no complaint, no case). Fortuny made it difficult for the plaintiff's lawyers to serve him, so they made an argument that he had actual notice of the complaint (the point of service) and could be fairly brought under the court's jurisdiction.
Fortuny wrote an informal letter to the court, which the court treated as a motion to dismiss. The plaintiff's lawyers modified their complaint and argued that the court should not dismiss the case.
Some more motions were made for various reasons, ultimately leading to Fortuny's loss. I think there were at least two or three hearings that the plaintiff's lawyers showed up for that Fortuny did not show up for.
Making arguments takes time. Preparing to show up in court and then showing up in court takes time (even when the other side doesn't show). When legal fees are over $200 / hour, the costs add up quickly (at $200 / hour, $34,000 is only about one non-mythical man-month of work).
Au contraire, subsection (f) of the various safe harbors states that:
This provision was used in Online Policy Group v. Diebold in an order finding Diebold liable for misuse of the DMCA (Diebold settled). Then there is the ongoing case of Stephanie Lenz. Last August the court kept her 512(f) claim against Universal open, but it is not clear whether the court will find Universal liable and, if so, for how much.
It is an interesting idea. Of course, laws generally are supposed to be, and should be, neutral with regards to the parties who bring claims. A bond requirement would probably hurt those with empty pockets more than those with deep pockets. Moreover, if a bond had to be posted for every notice submitted, then all copyright infringers would have to do to multiple the amount of money required up front would be to post the infringed work on many different sites (doing that already has the effect of making it difficult to find all infringing copies of a work).
That's not quite accurate. If you comply with a DMCA takedown notice, it means you are protected from monetary damages, even if you put the work back up because of a counternotice provided by the user. If you do not comply with a DMCA takedown notice (e.g., if you are one of the countless service providers that has not designated an agent to receive a DMCA takedown notice), then you are no longer protected from monetary damages by the DMCA safe harbors. But, that doesn't mean that you are responsible for the user data either.
If there is no infringement, you are in the clear (unless you get sued but don't defend yourself). If there is infringement, then your liability could depend on factors such as whether you exercise control over what your site publishes, whether you had knowledge of the infringement, whether you promoted use of your site as a place for infringement, and whether you benefit as a result of the infringement.
Service providers did not want to face the uncertainty of whether the courts would find them liable for their users' content and what factors would affect the outcome of trial. I believe that they were the biggest supporters of the safe harbor provisions of the DMCA. The rights of users and the desire to avoid stiflement of free speech led to the counternotice-and-putback part of the safe harbor provisions (a provision sadly missing in the DMCA safe habor counterparts in parts of the world such as the European Union).
Unfortunately, the anonymous reader who posted Church of Scientology material (see grandparent comment) did so, well, anonymously. Thus, there was never an opportunity for a counternotice to be submitted by the user who posted the material. Perhaps someone could have claimed responsibility for having posted it and submitted a counternotice. But, that would mean providing a name, address, and telephone number, then consenting to the jurisdiction of U.S. Federal Courts.
Of course, Slashdot could have ignored the original notice and tried to face down a potential lawsuit from the Church of Scientology (not that I blame them for not wanting to go through that). But, Slashdot would have faced such as threat regardless of the DMCA safe habor provisions. At least the DMCA safe habor provisions meant that there was no need for Slashdot people (or scripts) to scan comments for potentially instances of infringement. And the DMCA counternotice-and-putback provision provided an opportunity for someone else to take on the monetary risks of possible infringement.
If Slashdot did not take advantage of the DMCA safe habor, or if there were no DMCA safe habors, that would not meant that Slashdot would be liable in court. It would just mean that Slashdot would have one affirmative defense fewer to hide behind and that the question of responsibility would be an open one for the courts to decide.
You're right...although the courts have interpreted the burden of proof needed for probable cause to be so low that it could almost be called plausible cause. Of course, for seizing and holding onto equipment like this, the evidence showing probable cause should not be trivial. I think that's why the EFF supporting memorandum makes a big deal about the burden placed on the suspect given that he does not have access to his laptop, his cell phone, and other personal items.
It's not as scary if you read the application for search warrant instead of the slashdot headline. The detective who filed the application had interviewed the suspect's roommate, who said that, among other things, he had "observed [the suspect hacking] into the B.C. grading system that is used by professors to change grades for student," that he suspected the suspect of damaging his brand new computer, and that the suspect had posted a fake web site profile of the roommate. Other evidence, such as network reigstration information, supported the detective's belief that the suspect had engaged in at least some of the alleged activities.
The evidence needed to show plausible cause for a search warrant is very low, but it certainly isn't as low as merely using a Linux operating system. This search warrant is not evidence that the sky is falling.
Wow! Pretty strong feelings. Have you actually looked at how Mr. Gershengorn fits into into this bullying that you speak of? According to his online biography, it seems that Metro-Goldwyn-Mayer Studios Inc. v. Grokster was the most important case he was involved in as a representative of the motion picture and recording industries.
How did that case end? The Supreme Court found that Grokster could be held liable for distributing "a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." 545 U.S. 913 (2005).
His biggest case of bullying resulted in the Supreme Court unanimously saying "if you go around telling everyone to use your technology to violate copyright law, you might have to take responsibility for subsequent violations of copyright law using your technology."
Granted, the argument for infringement in that case was much broader, but still, it doesn't seem like he has been on the forefront of bullying efforts.
Moreover, he has represented a lot of different groups in a lot of different matters. Take a look at that bio again. He's represented telecoms, the Association of American Railroads, the National Association of Broadcasters, supporters of the separation of church and state, and multiple Native American tribes.
Do you really want to judge him without reviewing some of his broader record? Do you really want to label him as "scum" without even looking at what his positions were and now are?
You wouldn't want someone to label you as anti-Native American because you showed hostility to someone who represented Native American tribes, would you?
Of course not. It wouldn't be a fair assessment of your values and qualifications. Neither are the uninformed knee-jerk assessments showing up on /. fair, either to Mr. Gershengorn or to Mr. Obama.
In re Bilski only deals with the patentability of certain process claims. Patents can be granted to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. Sec. 101. Beauregard claims do not really claim a process, they claim an article of manufacture. They really do not fit within In re Bilski at all.
The scope of In re Bilski is very important. Lower courts are limited in how far they can stretch the decision. Even the Court of Appeals for the Federal Circuit (the appeals court that decided In re Bilski) is limited in what they can do with this decision. Individual three-judge panels on U.S. appeals courts are bound by precedents established by any panel of the given appeals court. The Court of Appeals for the Federal Circuit has to hear a case en banc (all the judges at one time) to overturn its own precedents. Since the Federal Circuit has exclusive appellate jurisdiction over patent cases, they are the ones who would need to hear an appeal.
This means that any precedents that were in place before In re Bilski, and were not affected by the decision, are still binding on everyone except the Court of Appeals for the Federal Circuit sitting en banc or the Supreme Court of the United States. The Court of Appeals for the Federal Circuit noted that:
This suggests that the holding of In re Bilski is limited to process claims and that many other types of claims that are used in software patents are unaffected.
Bilski was about business method patents not tied to any machine. The Federal Circuit tried to make this clear in the In re Bilski opinion itself (page 21):
It is true that the validity of many broadly drafted claims may be at issue, but many software claims just do not make sense unless the claims are understood to be tied to computational devices. For example, Beauregard claims, which are claims on a computer readable media adapted to implement a method or system, are considered patentable by the PTO. These kind of claims are very popular because they allow patent holders to go after the software distributors rather than end-users.
It will be harder to enforce software patents, now that the defense lawyers can wield Sec. 101 with more power. But it is a mistake to declare victory against software patents based on a case where all the PTO wanted was for the patent applicant to add "computer implemented" to the claim language.
The patent examiner's job is to check for prior art. They use keyword searches over multiple databases. They also identify related classes of invention and do a quick check (e.g., checking out the abstracts and drawings) of dozens, if not hundreds, of patents, to try to find relevant prior art. They actually do a decent job in most cases, which is why virtually all issues patents were initially rejected.
That being said, prior art can be in any language, any time before invention, and just about anywhere "public" (e.g., a German masters thesis in a school library, a brochure distributed at a trade show, or source code in a public CVS repository). No patent examiner is capable of doing an exhaustive prior art search, especially since patent examiners, like everyone else, have limited time.
It is possible for the patent prosecution process to be more exhaustive. Just hire more examiners and give them more time to search. Of course, when you hire more examiners, you need to pay more to attract talent. You also have to pay the additional workforce. Thus, a more in-depth patent prosecution process costs more, which means fees would need to be higher (discouraging small businesses and independent inventors from securing rights in their inventions) or the patent office would need to be subsidized by public funds (costing taxpayers money).
Not exactly (at least not in the United States). The person submitting the patent has to provide the patent office with a list of the prior art that the person is aware of. If the person is not aware of any prior art, then the list that gets sent is empty. If the person submitting the patent (or that person's representative patent practitioner) fails to disclose known prior art, or misrepresents submitted prior art, then the entire patent can be thrown out. This is actually a problem because it discourages patent practitioners from saying anything about why they believe the prior art they are submitting might be relevant, wasting the time of patent examiners.
It is actually a good idea to look for prior art when drafting the patent, even though there is no duty to conduct such a search. Drafting around prior art enables patent applicant to obtain broad scope without having to narrow their claims during patent prosecution (which, due to the Festo cases, can drastically narrow the claimed invention scope).
Patent examiners have access to many databases, but not all prior art can be found in their databases. Moreover, the patent databases are probably the only sources of prior art that are categorized at a fine enough granularity (400 classes further divided into 150,000 subclasses) to be useful to patent examiners trying to find prior art without relying on exact search terms (an issue given that terminology changes over time).
If the patent submitter misses something, then the whole patent may not be lost if at least one of the claims is not anticipated by or obvious in light of the prior art. It is only if the patent submitter knew about the art, but withheld it from the patent office, that the whole patent would be lost due to wrongdoing.
Methinks that I should have phrased it as "often times, the possibility that you might be infringing a particular patent is pretty clear from a cursory reading of that patent." It does make a difference whether you are assessing the risk of infringing any patent versus the risk of infringing a particular patent. After all, if there are 1,000 patents that relate to your work, and if for each patent there is only a 0.07% chance that you infringe it, then there is a 50% chance that you infringe at least one of those patents.
That is indeed a core reason why engineers are often discouraged from looking at patents. Another reason is that they have a tendency to document their thoughts with emails that say things like "I think we infringe this patent," even when they have not properly analyzed the claims of the patent or its validity (you really need a qualified lawyer for that kind of work).
On the other hand, it is really stupid advice perpetuated by lawyers with little to no training in risk management. If reading a patent trebles the potential damages, but reduces the probability of infringement to less than one-third of the original probability of infringement, then reading the patent is better than ignoring it.
Often times, the possibility that you might infringe a patent is pretty clear from a cursory reading (which is all you can handle when wading through hundreds of possibly relevant patents). In many cases, you can at least tell whether a patent might be related to the work you are doing. Those that are too far out-of-field can be ignored while those that look suspiciously familiar may require referral to a qualified lawyer.
True, one of those out-of-field patents may come back to bite you because of broad claims. But, if they are not clearly related on their face and the most relevant patents were reviewed in more depth, then you have a pretty solid defense against claims of willful infringement. If, in the process of reviewing all those patents, you managed to engineer around or negotiate licenses for a few patents that appeared closely-related, you may have considerably decreased your risk of being sued. You just have to make sure no one sends around any emails that say "I think we infringe this patent."
It's not particularly arrogant or unrealistic to think that the US has developed a particular technology and that many other countries have not developed a competitive technology yet. Technological development takes time and resources. Every country, company, organization, and individual has limited time and resources. Many countries have technologies that are very old. If they can purchase more advanced products and reverse engineering them, then they can save significant research and development costs. If the U.S. can keep such products out of the hands of certain foreign nations, then those foreign nations have to go through similar research and development efforts to try to bridge the technological gap. Of course, the U.S. government and U.S. companies continue their own R&D efforts, which helps to expand the technological gap.
Many of the technologies that are under export control are really nasty technologies. Truth is, it would be best if nobody had access to them. One possible benefit of export controls is that, by limiting the potential market for subject technologies, there is less incentive for companies to develop such technologies.
Of course, what the government considers potentially nasty sometimes conflicts with the needs of the public (e.g., strong cryptography). Care should be taken to address such conflicts, but they don't negate the potential value of export control to strengthening national security.
The answer to your main question is no, the judge has not presided over any cases where only the RIAA was allowed to speak for 5 years. The judge has presided over cases where defendants have ignored the courts. This has led to frustration for everyone involved.
Much of the judge's frustration was that there are so many defendants who are so overwhelmed with the legal process that they do not even respond to the complaint that begins the proceedings. In the complaint, the plaintiff sets out the reasons why the plaintiff believes that the defendant is liable. That complaint is sent to the defendant, who generally must answer the complaint, admitting to or denying each allegation. When defendants do not respond to a complaint, the court treats the allegations as true and enters a default judgment against the defendant.
One of the defendants present at this conference said that his son was the one who committed copyright infringement. He had not answered the complaint. Judgment was entered against him.
The court said that it would consider setting aside the default judgment (re-open the case), but only after defendant talked about settlement with the plaintiffs' attorneys.
The plaintiff's attorneys were persuasive it seems, because they had reached agreement on settlement of the default judgment: $4,650, spread out over seven years eight months at $50 a month. No interest on the amount owed.
Was this fair? The courts cannot fairly adjudicate disputes when only one side bothers showing up. Moreover, according to one of the plaintiff's lawyers, the defendant's son refused to talk settlement, to take responsibility for the acts of infringement. If the judge had set aside the default judgment, the plaintiffs probably would have asked to have the case dismissed, right before filing against the defendant's son. The defendant took the hit instead.
The judge is obviously frustrated with a system that leads to these kinds of outcomes, but there is plenty of blame to spread around. The plaintiff's lawyers aren't educating defendants enough about the consequences of failing to even show up. Congress set minimum statutory damages which add up very quickly. The courts have established procedures that are downright scary to non-lawyers. The defendants close their eyes and try to wish away complaints instead of seeking advice. RIAA members continue to rely on business models that depend on the purchase of CDs and paid downloads of individual tracks. Programmers continue to develop software that makes it look like sharing music files is free and risk-free. And consumers continue to download songs without paying for them and to share songs with strangers (including some who work for the record companies).
It's actually a pretty reasonable fee. Public records that are available for inspection on-site typically cost $0.25 per page to copy. With PACER, opinions are often provided for free. You don't pay unless you accumulate at least $10 worth of charges / year. Charges are capped at $2.40 per document (that is, you can get a 100 page document for the price of a 30 page document). You can also apply for an exemption in certain situations where an "exemption is necessary in order to avoid unreasonable burdens and to promote public access to information." And its all DRM-free, for those inclined to share digital court records with others.
From the court order itself (which you can download for about $0.40) there were a set of undisputed facts:
There were also a set of disputed facts and legal conclusions:
It looks like the $6M are actually stipulated damages. That is, both parties have agreed that if there are to be any damages, they will be $6M exactly. Issues of liability can still be appealed. But, issues of what the damages should be are no longer in dispute. This means that Blizzard and MDY can both keep their legal costs down. Instead of sniping about damages (spending $10 to prove $1 in damages), they can keep their lawyers arguing a handful of core legal issues.
Sure, the law might be smudged. Judges reinterpret laws all the time. However, most courts are unlikely to smudge a law like this in a politically unfavorable way when there is a plausible interpretation that won't generate mainstream criticism. The plausible interpretation in this case is that the law is designed to guarantee that third-party candidates have access to the ballots if they follow minimal procedure.
Take a look at the Texas Supreme Court opinion that, according to this press release, supposedly states that Texas law "does not allow political parties or candidates to ignore statutory deadlines." The case actually allowed a candidate to get on the ballot despite filing mistakes (the quote simply limits the scope of the opinion as opposed to carving out the meaning of the statute in stone as Mr. Barr seems to claim).
The courts have a bias in construing election law to favor allowing candidates onto the ballot (thus letting voters ultimately decide the issue of electability) instead of disallowing candidates from the ballot (thus effectively taking the final decision away from voters).
Ultimately, you don't need to apply strict rules of interpretation to guess which way the Texas Supreme Court is likely going to go with this case. You just need to know what interpretations of the statute are plausible and what is most likely important to the judges.
Chances are that McCain and Obama will be on Texas ballots in November. The law that Mr. Barr cites states that a "political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if" it the party gets its certification of nominees in on time ( emphasis added ).
Being entitled to a benefit based on a condition does not mean one is prohibited from receiving that benefit if the condition does not apply. A => B does not imply that B => A. If the Democrats and Republicans got their nominations submitted on time, then McCain and Obama will be on the ballots in November. That does not mean that if McCain and Obama are on the ballots in November that they got their nominations submitted on time.
Of course, A => B does imply that !B => !A. Thus, if McCain and Obama are not on the ballots in November, then the Democrats and Republicans did not get their nominations submitted on time.
Maybe there is something else in the Texas code that Mr. Barr can use in his argument. But, his reliance on this section alone is not enough to win the day.
Each claim of a patent is presumed valid independently of the validity of the other claims. See 35 U.S.C. Sec. 282. If one claim is invalid, then other claims that include additional or different limitations will still be presumed valid until proven otherwise.
You may have noticed that patent claims themselves form a hierarchy. At the top of the hierarchy are the independent claims. You can recognize them because they do not refer to other claims in the patent. Then there are dependent claims. These are claims that add additional limitations to the claims from which they derive. You can recognize them because they refer to other claims in the patent.
The independent claims, which have the fewest limitations, are the easiest to knock out with prior art references. The dependent claims, especially dependent claims that depend on dependent claims, are the hardest to knock out with prior art references, but are easier to engineer around (all you have to do is ensure that your own implementation does not include one of the limitations or its equivalent; but you still have to be careful because the courts often find weird equivalents when it comes to litigation). Patent practitioners usually draft a variety of independent and dependent claims to make a patent harder to fully invalidate or engineer around.
Because it is hard to knock out all the claims of a patent, defendants in patent litigation often look to ways to attack a patent as a whole. Defendants often accuse the patent applicant of withholding information from the patent office, such as knowledge of prior art or the best mode embodiment of the patent. They may even try to find inventors who were not named on the patent application and license the patent independently from them.
I suggest going beyond just putting your name in the code. Put your name on anything you produce or touch. If you don't put your name on a document, then you are communicating that you are happy to let others take the responsibility and credit for the work you have done. If you put your name on the work you've done, then you are showing that you are willing to be accountable for the quality of your work and that you want credit for your accomplishments.
You may still find that your work is taken without any credit being given. It is rude not to give credit when a supporting work has been properly labeled. If you've already distributed your work around (e.g., by asking people to review your efforts and give you feedback), then you are less likely to run into trouble because your supervisor will not want to appear rude.
Make sure that you are producing works that people will read. Code isn't a great place to put your name in because not a lot of people bother to go through code. Document your accomplishments at a higher level. Produce some slides and short papers that talk about the system you've helped build. Give some presentations on what you did even.
Give credit to others. When you are implementing an idea your supervisor suggested, point out that it was his idea. If someone gave you assistance, then acknowledge the help. By showing your willingness to credit others, you are more likely to see them crediting you too. You will look like a leader if you are setting a good example. You may sound like a whiner if you are complaining about not receiving credit, but have not shown others the courtesy of your acknowledgments.
Be aware that your supervisor may not be purposely taking credit for your work. Your supervisor's supervisor may not really care who implemented the system and may just see your supervisor as the bellybutton for the system (after all...if you leave, who will be responsible for the future of the system?) Credit has a funny way of getting misplaced. In my own career, I've had tangential contact with some projects and been vocal about how minimal my own role bas been, yet I still am given more credit (and responsibility...especially responsibility) than I deserve.
Finally, do you really care? If you're in college still, this probably isn't the place where you're going to really start building a career. College jobs are often a starting point: you get experience and you make people happy so that they'll give you a good reference if you ask. If this is where you want to really build a career, then you should learn how to be more aggressive in seeking credit (while still being subtle). But if not, then you may want to let it slide.
The lawyer is the agent of the client, and so the lawyer generally must abide by the client's decisions concerning the objectives of representation. But, the lawyer is also a professional with independent ethical and professional obligations. Thus, the lawyer is responsible for establishing the means of representation, in reasonable consultation with the client.
For example, the lawyer cannot ethically use dilatory tactics (e.g., groundless motions and unwarranted requests for delay) or support the client in committing perjury (if the client insists on lying on the stand, the lawyer may be obliged to tell the court that the testimony given was false). For example, "[w]hatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely." See Nix v. Whiteside, 475 U.S. 157, para. 51. Of course, presenting a defense that the client does not want presented is different from refusing to present a particular defense.
That being said, there might be some circumstances where a lawyer could present a particular defense that the client did not want presented. If the defense attorney can show that the client is not competent to decide which defenses to use, then the defense attorney may ask the court to appoint a guardian to represent the client's interests. The court-appointed guardian may approve of a defense that the client disapproves of, enabling to the lawyer to put forth a particular defense against the client's wishes.
In all likelihood, Reiser's lawyer did not want to put Reiser on the stand. However, it is generally accepted "[i]n a criminal case, [a] lawyer shall abide by the client's decision, after consultation with the lawyer...whether the client will testify." It is assumed that the right of a client to testify in criminal cases is a constitutional right. See Nix v. Whiteside, 475 U.S. 157, para. 16. Even if the client's testimony can only hurt the defense, the lawyer must allow the client to testify if the client so insists. To do otherwise would be unethical and impair the client's rights.