There is a way for the second party to file a reply to the new arguments. It is called a surreply and the RIAA has done so as well. This allows them to address the new arguments in case the judge choses to allow the first party's reply. Without that they give the first party an opportunity to enter something uncontested nto the record.
I would guess most surreplies are limited to a rather narrow set of allegations such as that the other party raises a new argument or blatently mischaracterized the law. If a court allowed each party to keep developing arguments back-and-forth, then most cases would probably never get past the first motion.
IANAL so I wonder whether it would be better tactics to request and file a surreply just in case, or to use the new arguments issue as a possible basis for appeal later?
Moving to strike a new argument is probably much better than trying to raise the issue on appeal for the first time. Many, if not most, grounds for appeal are waived if they are not raised in a timely manner. Besides, if the lower court makes a significant procedural error, then the appellate court is likely to remand the case for a new trial instead of finding for the appellant. Holding off on a procedural argument is just a waste of time and money.
Striking something is not quite the same as not even reading it. What Arista records seems to be saying is that the University of Oregon added new arguments in a reply memorandum and that these new arguments should not be considered by the court.
When a party in a case wants the court to do something, that party often provides a memorandum in support of the requested action. This support brief provides the arguments as to why the court should take action. The opposing party then has an opportunity to counter these arguments by providing arguments as to why the court should not take action. This is the response brief. At this point, the party that asked the court to do something can counter the arguments made by the opposing party. This is the reply brief. Then the court makes a decision.
The party that asked the court to do something generally cannot add new arguments into the reply memorandum. That party may reaffirm its original arguments or try to shoot holes in the opposing party's arguments, but new arguments are generally not allowed. The reason for this is that the opposing party no longer has an opportunity to respond to arguments before the court makes a decision.
If the party that asked the court to do something were allowed to make new arguments, then it would make sense to withhold the best arguments until the reply brief is filed. This would tilt the outcome to the party making the request, which would lead to parties making a lot of requests (it is bad enough now, but it could be a lot worse).
The reality is that procedural matters are an important part of our legal system. A judge could be required to retry a case if an argument was improperly considered or improperly dismissed. Some scrutiny has to be applied, especially when the issue of whether to consider an argument is raised.
The judge would probably read the University of Oregon's reply carefully to determine whether new arguments were raised or not. If new arguments were raised, then the judge might very well strike the new arguments or even the entire reply, thus basing the decision on just the support and response briefs. If the arguments in the reply are not new (or simply shoot holes in Arista's response), then the judge would not strike the reply and make a decision based on all three briefs.
Of course, some research into the specific procedures of the District Court for the District of Oregon is necessary to fully understand the situation, but that seems to be the gist of what is going on.
Maison Fleury glosses over patent protection too glibly. The Open Source Software community has been aware of the threats from software patents for years, yet has done little more than argue that software should not be patentable. During this time, OSS developers have created countless innovations. Had some of these innovations been patented, software patents would not pose as much of a risk because the OSS community would have powerful leverage. Even the risk from patent trolls would be somewhat mitigated because OSS developers could withhold licenses for key innovations from potential licensors of the patent trolls' technologies, drying up all streams of revenue. OSS would also have greater political leverage because it would be easier for groups like the FSF and the OSI to point to the patents as evidence that OSS spurs innovation, not just high-quality craftsmanship.
Patent protection is known to be expensive. But, a lot of money has been invested in OSS. Some of that money could go to paying the costs of securing and maintaining patent rights for OSS innovations. Furthermore, many law firms encourage pro bono work. The OSS community could probably leverage those free legal hours as easily as it leverages developers' hours. The real obstacle to securing patent protection for OSS is political: OSS developers tend to boycott the entire patent system and hope that it will just go away. Unfortunately, ignoring the value of this form of intellectual property protection is a mistake.
Some of the rights that can be secured through software patents are much better suited to OSS goals than copyrights or trademarks. Some OSS developers try to bend copyright and trademark protection in ways that, if accepted, would be harmful to the OSS community, if not the entire software industry. For example, "[s]ome have claimed that an application program that needs a library for its operation is a derivative work of that library." This line of thinking would make Gimp for Windows a derivative work of the Win32 API, making Gimp a product that is ultimately owned by Microsoft. Using patent rights to exclude use of a library by non-OSS would produce the desired result of encouraging the development of OSS without distorting copyright law in such a self-destructive manner.
At least one company seems to show an interest in using the patent system to build a niche for itself. And that company seem to produce a lot of innovations that arguably advance the arts and sciences.
Innovating and seeking patent rights may be completely independent. Sure, there are potential strategies that might leverage the patent system. But, like any business strategy, how can anyone be sure success comes from the strategy or from other factors. You never know for sure that success was in spite of, not a result of, engaging a particular strategy.
Because there are so many other factors, it is hard to prove that a strategic tool, such as software patents, have real benefits. But, it is also hard to prove that they do not have real benefits. To accept either position based on little more than appeal to authority and assertion that the issue has been fully-decided is foolhardy, which is why such arguments are not particularly persuasive.
Patent protection for software is as inherently inappropriate as patent protection for genes. Patent protection for software only happened AFTER software became suddenly a big deal, the software industry has grown in spite of patent encumbrance, and I have yet to see a case where patent protection for software has "advanced the arts and sciences".
In the '70s there were those who believed that copyright protection was inappropriate for software, even questioning its basic need:
It appears that the existing network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and (in a few instances) patent forms of protection, possibly to be joined soon by Sen. Abraham Ribicoff's Computer System Protection Act - to {Page 31} say nothing of laws on fraud, larceny, breaking and entering, etc.-will be wholly adequate, as they apparently have been up to now, to the needs of developers. From Commissioner Hersey's dissent from the Final Report of the National Commission on New Technology Uses of Copyrighted Works recommendations on computers and copyright.
Many considered copyright to be an inherently wrong form of protection for software and questioned its need. How important would the GPL be if it had to rely a "network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and... patent forms of protection?" Different forms of protection have different benefits and drawbacks for users, developers, and investors. Arguing, or merely asserting, that only one perspective has any merit does not demonstrate any attemt to weigh these benefits and drawbacks---such approaches are inherently unpersuasive to policymakers.
Once you realize this, then it becomes clear why NEU is being demonized. It's because they are acting like a demon.
In this demon-haunted world, dogma is an inadequate substitute for thought.
The/. posts labeling Northeastern University as a patent troll or claiming that the patent should not have issued have been posted too quickly to be credible assessments of the morality of this suit and the worthiness of the patent. The current Wikipedia definition is that a patent troll is "a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic." If the patent was obtained through lawful and ethical means, is valid, and is infringed on by Google, then how is it "unduly aggressive or opportunistic" for Northeastern University to enforce the patent?
Some argue that a patent troll is merely a person or company that seeks to enforce a patent but does not practice the patent. Maybe Northeastern University is not practicing the patent. Then again, the mission of most universities seems to be conducting research, not applying and commercializing research. Licensing research to companies that can and will apply and commercialize that research is one way that universities fund additional research. Maybe universities should have to give all of their research away for free. But currently they do not. And it seems unfair to fault Northeastern for exercising its rights while not pushing the scope of its mission.
Given how quickly Northeastern was accused of being a patent troll, and given that there was no discussion about the proper role of universities or any real analysis of the worthiness of the patent (which was filed in 1994...almost 4 years before Google was founded), it seems likely that some people consider a patent troll to be any person who tries to enforce any patent rights.
Maybe Northeastern is acting like a patent troll. And maybe their patent is worthless. But it takes more than a quick glance at the 20-page issued patent or the 6-page complaint against Google to come up with a reasonable assessment of these issues.
Some analysis of the complaint would at least show that it doesn't look like Northeastern really knows the details of Google's search infrastructure:
13. A part of its search engine services, Google uses one or more hashing algorithms.
14. As part of its search engine services, Google returns search results responsive to user queries. ...
16. Google maintains and operators clusters of networked computers to provide search engine services to users. ...
26. Google has directly and/or indirectly infringed on one or more claims of the '593 patent, and Google is continuing such infringement by practicing or causing others to practice one or more of the inventions claimed in the '593 patent. For example, Google makes, uses, imports, sells and/or offers for sale search engine services and systems that infringe or that are used in ways that infringe one or more claims of the '593 patent in this district and elsewhere in the United States.
Then again, Google's code is not open to the world. If it was, more detailed analysis would be possible. How can Northeastern try to get access to the code? By suing and demanding it as part of discovery. Does this make Northeastern a patent troll? Maybe. But the alternative (aside from discarding the patent system altogether, at least for software innovations) is a system that rewards patent infringers who keep their source code inaccessible to patent holders.
Not exactly. People would have a copyright on their software. So while you could implement it in your own fashion, you couldn't copy it directly.
The biggest problem (at least in the U.S.) that existed when it seemed that only copyright protection was available for software, but patent protection was not, was that people would make outright clones of innovative works (using the same ideas, but not the same code), the innovators would then sue the cloners, and then courts would push the doctrines of what copyright could protect.
Copyright protection is much easier to get than patent protection. All you have to do is write down something original and you have a copyright while patent protection requires an adversarial problem. The validity of copyright protection is harder to attack than the validity of a patent (it just takes one publication, anywhere in the world, any language, with all the limitations of the claimed invention, 12 months before the U.S. filing date or before the invention was conceived to invalidate a patent). And the scope of patent protection is defined by a patent's claims. What is the scope of copyright protection for a software application? Patents, which expire 20 years from the date of filing, are relatively short in duration. Copyright protection duration seems to be on a path to eternity.
There are problems with software patents. Patent protection for software "is too much, too long, and too late." But, eliminating software patents altogether won't solve these problems. People who invest in innovations will always try to find the most cost-effective ways to maintain a competitive advantage. For technologies that are easy to clone (which, today, seems to be just about every technology), there will always be pressure on the boundaries of whatever intellectual property rights are available. Eliminate the most appropriate protections and the pressure will cause warping of the protections left behind.
The patent office says the new rules would speed up the patent process, but critics say they hurt inventors.
Inventors? Or just multi-billion-dollar transnational conglomerates?
Multi-billion-dollar transnational conglomerates tend to hire a lot of inventors. Some of them do use patents as a key part of their business model. It is likely that efforts that undercut such business models would mean that such companies would be less effective at capitalizing on the innovations produced by their inventors, which could mean that they would hire fewer inventors or hire them at reduced salaries. Some small companies also use patents, sometimes to collect money for sales lost to powerful players and sometimes just to deter competition and potentially become a big player too. Undermining these business models can also lead to reduced demand for inventors.
Eliminating or minimizing the drawbacks that come with a patent system may create enough opportunities for inventors to maintain demand, but it can also shift money away from inventors towards craftsmen and marketers. After all, if you can't make more money by protecting something that's new, why not just make something that's old better and invest in branding it to artificially stimulate demand?
So in order to access the list to find out how to get on it, you give them another excuse to put you on it?
I think that's an erroneous interpretation. It appears to mean that an individual who is in the database for having "been charged with serious and/or significant offenses" must have been fingerprinted or (if you read down a bit more) "three or more convictions for a violent felony or serious drug offense" (which seems redundant since it seems unlikely that anyone with that many serious convictions would not have a set of fingerprints on file).
Fingerprints are used in this system to ensure that an unauthorized person does not purport to be the subject in the NCIC database (perhaps using fake ID) to obtain information about that person.
...if they want to have their names removed from the National Crime Information Center (NCIC) database, which appears to be what the Canadian officials pulled. The NCIC "is provided by the FBI, federal, state, local and foreign criminal justice agencies, and authorized courts." Thus, the NCIC is made up of FBI data and data provided to the FBI by other government organizations. To correct a record in this database, "the subject of the requested record shall request the appropriate arresting agency, court, or correctional agency to initiate action necessary to correct any stated inaccuracy in subject's record or provide the information needed to make the record complete." Unfortunately, accessing the record in the first place can be a challenge; it looks like it requires being fingerprinted and making the request through a law enforcement agency that has access to the record. More information is available here.
Software is pure mathematical expression. As such, I can understand copyrighting specific implementations of ideas in software, but not the patenting of algorithms. The latter is a serious attack on intellectual freedom; Its privatizing math!
Mechanical devices are pure physics applications. For that matter, electric circuits and chemicals such as pharmaceutical products are all grounded in pure physics. Should a patent for a mechanical devices, electric circuit, or drug be invalid because it "privatizes physics?" Should a patent for a new type of vehicle be invalid because "it's all just physics?"
Pure mathematics (such as an algorithm) or pure physics are not patentable. But use of mathematics or physics for a useful application may be patentable under U.S. law.
The argument that software should not be patentable because software boils down to just mathematics has the backing of expert authority. It makes some sense from a mathematical perspective: if an algorithm f_1 is unpatentable, and adding a small algorithm to f_n+1 to f_n still creates an unpatentable algorithm, then all algorithms that have unpatentable algorithms at their very base are unpatentable by induction.
But public policy (such as patent law) is not bounded by theoretical mathematical models, even nice, clean ones supported by very intelligent people. At some point under U.S. law, unpatentable mathematics can turn into useful, patentable inventions. Where is the precise boundary? That's like asking: "how many grains of sand does it take to make a heap?"
Public policy ultimately has to deal with a world that is not easily modeled into discrete sets. There are better arguments against software patents then the argument that the algorithms are just mathematics.
The RIAA did not have to show that they lost $D in lost sales. They sought statutory damages instead. Statutory damages can be a bit problematic though, especially copyright statutory damages which are per work. They tend to overpunish on works such as individual songs; a light infringer can rack up even minimum damages very quickly. In this case, the defendant would have been liable for at least $18,000 once infringement was found. On the other hand, they can underpunish in other situations. Imagine someone making an illegal copy of a pre-release movie reel, but being caught before distributing it. The potential damages the individual could have caused to the success of the movie and the total cost of producing the movie may have been much more than the damages caused by the infringer of a bunch of songs, but the statutory liability is quite low (less than what the defendant in this case was hit with I believe).
Jury nullification is a consequence of the constitutional ban on double-jeopardy. This ban was put in place to protect citizens from oppressive practices by the government in the realm of criminal law. It was not designed specifically to enable juries to ignore the law.
In a civil trial (such as this one), the judge can set aside the jury's verdict if the judge finds that the jury's findings are unreasonable. So even if the jury hates copyright law and wants to find for the defendant, the judge can still impose liability (especially since there is a $750 per work minimum for infringement, a minimum that the jury cannot ignore).
Didn't someone say that "Prior Art" was discovered in a "VoIP 'standard' " or something, a white-paper or something like that PRIOR to the filing of patents on the issue?
If so, wouldn't Vonage have been able to use prior art to defeat the patents?
One of Vonage's defenses was that the Sprint patents were anticipated by or obvious in light of prior art. One set of proposed jury instructions proposed telling jurors that:
Vonage asserts that the Asserted Patents are invalid over the following prior art:
U.S. Pat No. 4,991,172
Priority Date:
October 28,
1988
"Cidon"
Entitled: "Design of a
high speed packet
switching node"
U.S. Pat No. 4,491,945
Priority Date:
June 25, 1982
"Turner"
Entitled: "Fast packet
switch"
U.S. Pat No. 5,115,426
Priority Date:
March 30,
1990
"Spanke"
Entitled: "Broadband
ISDN packet switching
arrangements"
U.S. Pat No. 5,440,563
Priority Date:
October 12,
1993
"Isidoro"
Entitled: "Service circuit
allocation in large
networks"
U.S. Pat No. 5,339,318
Priority Date:
October 22,
1992
"Tanaka"
Entitled: "VPI and VCI
assignment system in
ATM system"
U.S. Pat. No. 5,544,163
Priority Date:
March 8, 1994
"Madonna" Entitled: "Expandable
telecommunications
system"
IBM Redbooks: IBM
International Technical
Support Organization
Network Broadband
Services (NBBS)
Architecture Tutorial
Publication
Date: June 30,
1995
"NBBS"
Entitled: "Network
Broadband Services
(NBBS) Architecture
Tutorial"
That list did not make it into the final jury instructions. The final jury instructions also did not discuss obviousness (it seems odd that Vonage would argue that the Sprint patents were anticipated by prior art, but not obvious in light of prior art).
The final jury instructions also said that Vonage had to prove anticipation by clear and convincing evidence. At least one scholar has argued that this should be the wrong standard when a defense is based on prior art not considered by the USPTO during patent prosecution---that prior art that was not considered by the USPTO should be allowed to invalidate patent claims if the less-stringent preponderance of evidence standard is met.
Back in April Techdirt claimed that it found applicable prior art from 1996 and 1997. These references were not cited though because most of the patents based their priority on patent applications filed before 1996 and 1997. They did not add new material to the continuation patents; they persuaded the USPTO that the original disclosures contained enough novel, non-obvious material for different sets of claims.
Interestingly enough, there doesn't seem to be a lot of discussion going on about how Vonage is playing the patent game too. In 2006, Vonage purchased three patents from Digital Packet Licensing, Inc.. One of those patents, the '485 patent, was already the subject of law suits against MCI, Time Warner, Qwest, Level 3 Communications, Speakeasy, Globalphone, IPN Communications, Sentito Networks, AT&T, SBC, Sprint, and Verizon, although I do not know what the status of these lawsuits was when Vonage purchased the patents or what the status of these lawsuits now.
More specifically, the jury's verdict was based on the claim that Vonage infringed the following claims:
6,304,572 claim 18: A system for processing telecommunications is signaling that comprises:
a first telecommunications device coupled to a first connection and a second connection and configured to receive in-band telecommunications signaling, to convert the in-band telecommunications signaling to an out-of-band telecommunications signaling message and to transmit the out-of-band telecommunications signaling message, to receive a first control message, and to couple the first connection to the second connection in response to the first control message; and
a processor that is external to the first telecommunications device and a second telecommunications device and configured to receive the out-of-band telecommunications signaling message from the first telecommunications device and to process the out-of-band telecommunications signaling message to select the second connection, to generate the first control message and a second control message that indicate the second connection, and to transmit the first control message to the first telecommunications device and to transmit the second control message to a second telecommunications device.
6,304,572 claim 42:
The system of claim 38 wherein the second connection is a broadband connection.
6,304,572 claim 51:
The system of claim 38 wherein the second connection is a packet connection.
6,633,561 claim 1:
A method of operating a processing system to control a packet communication system for a user communication, the method comprising: receiving a signaling message for the user communication from a narrowband communication system into the processing system; processing the signaling message to select a network code that identifies a network element to provide egress from the packet communication system for the user communication; generating a control message indicating the network code; transferring the control message from the processing system to the packet communication system receiving the user communication in the packet communication system and using the network code to route the user communication through the packet communication system to the network element; and transferring the user communication from the network element to provide egress from the packet communication system.
6,633,561 claim 23:
The method of claim 1 wherein the processing system is external to any communication switches.
6,452,923 claim 18:
A communications system for handling a call having a first message and communications, the communication system comprising: a processing system external to narrowband switches and configured to receive and process the first message to select one of the narrowband switches and to generate and transmit a second message based on the selected narrowband switch; and an asynchronous communication system configured to receive the second message and the communications and transfer the communications to the selected narrowband switch in response to the second message.
6,473,429 claim 1:
A communication method comprising: receiving information associated with a user communication into a processing system; processing the information in the processing system to select an identifier; generating a message containing the identifier; transmitting the message from the processing system; receiving the message into an interworking unit; receiving the user communication into the interworking unit from a DS0 connection; in the interworking unit, converting the user communication into an asynchronous communication with the identifier in a header in response to the message; and transferring the asynchronous communication from the interworking unit.
6,473,429 claim 5:
The method of claim 1 wherein the processing system is external to telecommunication switches.
6,298,064 claim 1:
A communication method for a call comprising:
receiving set-up s
What can they amend the judgment with? Their entire case is based on mere speculation. With Jayson Street's expert testimony on the impossibility of the plaintiffs "experts" to determine which computer files were actually shared from, the RIAA has nothing.
This wasn't a judgment, this was just an order telling the plaintiff lawyers that they did not provide enough meat in their complaint to enter a default judgment even though the defendant has not even denied their charges. To get through a case, judges have to make a lot more decisions than "A wins, B loses." The bulk of the work is in getting to the point of making that decision (of having the jury make that decision).
The RIAA cannot actually prove that anyone shared the files they're accused of. That is why the RIAA will continue to lose in court.
Interscope, UMG, and Atlantic had lawyers who drafted a complaint that glossed over their basis for filing suit. A lot of effort was put into identifying the law, but not much effort was put into identifying the facts. Now that they have added some meat to their complaint, they are more likely to win a default judgment if the defendant does not bother to respond to their charges.
That there might be expert testimony available that could undermine the plaintiff's case is irrelevant if the defendant doesn't make the expert testimony available in court. And the court is unlikely to accept a report submitted in another context. How would the court to know whether a report talking about Network Address Translation technology is applicable to this case? The defendant might not have had a NAT router. Or perhaps the defendant did have a NAT router, but all of the computers attached to it were under the defendant's control.
The court refused to enter a default judgment based on speculation that the plaintiff might have a good case. If no defense is presented, the court can justifiably refuse to enter a judgment in favor of the the defendant based on the speculation that the defendant is the one with a good case.
For only a couple of dollars, it is possible to review the current case information using the PACER electronic file access system. Interscope Record, et al., filed an amended complaint on August 23, 2007. The amended complaint goes beyond stating that the plaintiffs were "informed and believe that the Defendant" pirated their works:
12. Users of P2P networks who distribute files over a network can be identified by using
Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for
distribution can be captured by another user during a search or a file transfer. Users of P2P networks
can be identified by their IP addresses because each computer or network device (such as a router) that
connects to a P2P network must have a unique IP address within the Internet to deliver files from one
computer or network device to another. Two computers cannot effectively function if they are
connected to the Internet with the same IP address at the same time.
13. Plaintiffs identified an individual using LimeWire on the P2P network Gnutella at IP
address 68.105.100.130 on October 2, 2005 at 05:21:57 distributing 330 audio files over the Internet.
The Defendant was identified as the individual responsible for that IP address at that date and time.
Exhibit A identifies the date and time of capture and a list of Copyrighted Recordings that Defendant
has, without the permission or consent of Plaintiffs, downloaded and/or distributed to the public.
The plaintiffs had to serve the the defendant again (by mail), but was otherwise not inconvenienced in this suit. Denying a motion to enter default judgment is not the same as dismissing the case altogether. The order even said that the plaintiffs were granted leave to amend the complaint.
The Recording Industry vs The People blog makes too big a deal about the RIAA not disclosing the Interscope order in another case. This was a trial-level order. It doesn't create an interpretation of law that is binding on any other court (if even itself). Law briefs are already long enough without having to cite thousands (if not millions) of trial-level non-binding orders and decisions that show that other trial-judges might decide against the argument.
While everyone here is thinking about this in a sinister fashion.. could this be a "whitehat patent"? That is, by patenting forms of adware, Microsoft can legally protect their OS from
such software -- giving them ammunition to use against the adware makers.
Yes it could be. No one knows for sure. Patent applicants do not have to disclose the business plans of the assignee. For all we know, Ewa Dominowska, the sole named inventor on this patent application, may have been working as a Microsoft researcher largely doing his own random interests rather than working towards the fulfillment of a sinister Microsoft plan to destroy the happiness of millions of gamers worldwide.
If/.ers are interested in discouraging adware and spammers, perhaps it would be a good idea to patent various methods of sending sending out ads and spamming. Then the people who create new adware and spamming software (not to mention their customers; people who presumably make use of these tools) without researching the patent system would risk stepping onto a patent landmine.
Unless I'm mistaken, "Party X lacks standing to bring this claim" and "Party X is the wrong plaintiff to bring this claim" are equivalent statements.
That seems right. And you may be right that a "this is really George Lucas's work" could be an effective defense (assuming Viacom thought George Lucas's lawyers were less scary than kdawson's). I'm having trouble finding case law that goes either way on it . As a practical matter, whether one has standing to sue only really affects that person's standing to sue if there is no substantial question of material fact that would affect standing. Whether George Lucas is the real owner of kdawson's Star Wars-themed commercials would likely be a substantial question of material fact (says the commenter who hasn't watched the clips yet).
I think you are right though, if Viacom could prove that George Lucas was the real copyright owner of the entirety of the Star Wars-themed commercials, then the court would probably dismiss the claim.
No, but it might mean that kdawson does not have standing to sue Viacom if it turns out that he doesn't hold a copyright on the work due to its nature as an unauthorized derivative of Lucas's work.
Until it is clear that kdawson's work was a derivative work of Star Wars, kdawson would have standing to sue. If Viacom argued that they did not infringe on kdawson's work because kdawson's work was derived from George Lucas's work, all Viacom would be saying is that the wrong plaintiff came after them. They would still be infringers.
They probably would avoid making this argument. If they succeeded, then they would then face the possibility of being sued by George Lucas and being unable to argue that the Star Wars-themed commercials are not derivative works of Star Wars. They also would lose the protection of the any license from YouTube. After all, if kdawson did not own the copyright in the Star Wars-themed commercials, then kdawson cannot grant YouTube the right to license it to anyone, so YouTube's license of the work would be void.
With the caveat that I have not looked for any cases that address this issue, I suspect that the courts would dismiss the issue unless George Lucas joined as a party to the case or unless he granted Viacom a license to the Star Wars-themed commercials. I suspect that a lot of courts would accept an argument analogous to a property law argument. If you are trespassing on a property, claim it as your own, and then I subsequently trespass on that property, you can eject me. I can't claim that someone else actually owns the property because between you and me, you have the strongest claim to the property. Between kdawson and Viacom, kdawson has the strongest claim to the Star Wars-themed commercials copyright.
Now, if George Lucas licensed kdawson's Star Wars-themed commercials to Viacom, then Viacom could make the argument that it was not an infringer because of that license. A court might still require that George Lucas join in (perhaps through a countersuit), but Viacom would be in a better position than by just saying "George Lucas is the real owner of this work."
The authorities differ on whether that clause would apply to the entirety of kdawson's work or only the Star Wars elements of it. In California, precedent exists suggesting that the entire work is covered only by Lucas's copyright.
It is hard to understand what issue the courts were grappling with without more detail. These determinations are also often very fact-specific. The entirety of kdawson's work may be treated as a derivative work, part of kdawson's work may be treated as a derivative work, or kdawson's work may be treated as an original work.
There seem to be at least three works at issue here, and none of them suggest that Viacom accused kdawson of infringing a copyright held by kdawson.
Work #1:Star Wars. This is an original work (although its origins can be traced to several other works).
Work #2: The Star Wars-themed commercial produced by kdawson. This might be a derivative work of Star Wars, or it might be an original work. Since George Lucas is not involved here, who cares? Viacom cannot argue that because kdawson's work might infringe on the works of George Lucas that Viacom has the right to use kdawson's work.
Work #3: The Viacom produced VH-1 segment featuring the Star Wars-themed commercial and commentary on that commercial. Sure, kdawson could sue for Viacom's use of the Star Wars-themed commercial without permission. That does not mean that Viacom can't protect the copyright in the commentary it produced. Viacom did not produce Star Wars-themed commercials that were derived from the Star Wars-themed commercials kdawson produced. Viacom created a compilation of the Star Wars-themed commercials kdawson produced and original commentary.
For example, if Robert Ebert reviews a movie and takes a few quotes from it, his commentary is still his. The movie producers do not have the rights to use that commentary (except, most likely, minimal non-infringing quotes).
If kdawson is not happy with Viacom's efforts to keep its commentary off of YouTube, then kdawson can a) sue Viacom for infringement of kdawson's work to pressure Viacom to be a bit less tight-fisted with its copyrights or b) send a counter-notice to YouTube to put-back the Viacom clip, then prepare for a defense if Viacom decides to sue for infringement by posting the Viacom-produced commentary.
The court of Slashdot, while a fun place to vent, is unlikely to have much effect. An appeal to change public policy to prevent users from being accused of infringing their own copyrights only makes sense if that is what is happening. That does not seem to be the case here.
There is a lot of talk about getting rid of patent trolls, but little consensus as to what a patent troll is. Very few companies will say "yes: we're patent trolls." At best, they're willing to tolerate being called patent trolls.
What makes a patent troll? Does a company that develops a new technology but licenses it because it does not have the capital or market position to exploit the technology count as a patent troll? What about IBM? They produce products, but they license their patents for use by others in products that don't compete with IBM's products. Does that make IBM a patent troll? Would they have to be making competing products to be on morally solid ground?
There are definitely companies out that abuse the patent system (e.g., by filing continuation applications or requests for reexamination during which the applicants try to stretch the claims of their patents to read on subsequent innovations). But this author has a point that distinguishing the bad guys from the good guys is not easy. Many companies out there see themselves as just legitimately trying to leverage their full rights. Is that significantly different from consumers trying to maximize their rights as consumers by engaging in activities that aren't clearly legal (e.g., using direct music and movie clips for new works without seeking permission, creating libraries of MP3s and copying them to multiple systems, etc.).
Activities that push the limits of the law create risk. Patent applicants pay significant fees and must spend a lot of time in their efforts, resulting in a guaranteed loss. Certain uses of a patent can raise anti-trust concerns or result in loss of the patent. Consumers pushing the boundaries of "fair use" often play a lottery in which the winner loses a nasty law suit. And there is always the risk that Congress or the courts may react by changing the law or interpretation of the law to minimize questionable activities.
But those who are engaged in those activities probably believe that all they are doing is playing by a valid interpretation of the rules.
If/.ers were to create 100 million unique 128-bit keys per second, it would take 1.078x10^23 years (about 7.7 trillion times the age of the universe) to exhaust the 128-bit keyspace. This suggests that giving some kind of legal protection over every single key actually generated might not be harmful public policy. Sure, eventually many of those numbers would have ASCII/UNICODE/etc. meanings such as "free speech good" (128 bits in ASCII), but protection for a number as part of a copyright access control technology does not imply that the creator of the number has any rights over those who have re-created the same number by coincidence. The AACS key might exist out there as part of an audio encoding, image, or movie file. But the AACS has not been trying to stamp out the remote possibility of coincidental use of this number. The only use that they have gone after has been use of the number as a key that is part of a copyright access control technology.
If you don't like laws that protect copyright access control technologies, it is best to develop policy arguments against such laws. Gimicks like creating 128-bit numbers that others can "own" don't prove much of anything.
Copyright owners and webcasters can still negotiate rates (See 17 U.S.C. Sec. 114(f)(3)). The decision that the Copyright Review Board refused to rehear merely establishes the terms and conditions that enable webcasters to license copyrighted works without seeking permission from the copyright owners. If Congress had not enabled the establishment of these compulsory license rates, then webcasters would not be able to broadcast any works without seeking permission from copyright owners because Congress had introduced a digital performance right in the Digital Performance Right in Sound Recordings Act of 1995.
Copyright owners presumably are interested in maximizing their revenues, while webcasters probably would like to minimize their costs. Thus, both groups still have a incentives to negotiate. The compulsory licensing rates will not kill internet radio: they simply provide terms and conditions of last resort for copyright owners and webcasters who cannot otherwise reach an agreement.
First of all, be grateful that you have people who are willing to go to such lengths to make their voices heard in this group. It means that people are thinking and are interested enough to make their ideas heard. I assume that these people are making their time available for free. You can tell them that their help is no longer wanted, but that's about all the group can and should do if they are truly disruptive. Otherwise, appreciate the effort they are putting into trying to make the group's work better.
Second, take a hard look at the group's decision-making procedures. Decisions, which often entail compromises, are necessary for the group to come together as a team. Many decisions can be made informally. But, a lack of a good process for dealing with controversial decisions can give members the sense that they have not had a full voice---that their input is being ignored. Is "majority opinion" in this group a result of formal votes? Or are the "co-leads" simply laying down "majority opinion" by fiat? Are decisions are being driven by personality or by deliberation?
Third, consider designs for your system that allow dissidents the freedom to introduce alternatives outside of the core project. Linux, Apache, Perl, Gimp, and Mozilla are all examples of systems that are extensible without modifying the groups official code-base. The members of your group who want to create alternatives may even go out of their way to create the appropriate hooks in the official code-base to enable this freedom outside the constraints of the group priorities.
Fourth, spend some time studying leadership as a discipline. Start small. Read The Five Dysfunctions of a Team: A Leadership Fable by Patrick M. Lencioni. Ask for honest feedback from the members of your group on your own effectiveness as a co-lead. Learn how to develop the leadership skills in others. Some of these disruptive members may be leaders who have just not learned how to communicate and compromise. The most effective way of dealing with them might be to help them develop those skills, rather than trying to disciplining them.
Fifth, get some cats. I've heard that herding them makes good practice.
Slashdot Mirror
I would guess most surreplies are limited to a rather narrow set of allegations such as that the other party raises a new argument or blatently mischaracterized the law. If a court allowed each party to keep developing arguments back-and-forth, then most cases would probably never get past the first motion.
Moving to strike a new argument is probably much better than trying to raise the issue on appeal for the first time. Many, if not most, grounds for appeal are waived if they are not raised in a timely manner. Besides, if the lower court makes a significant procedural error, then the appellate court is likely to remand the case for a new trial instead of finding for the appellant. Holding off on a procedural argument is just a waste of time and money.
Striking something is not quite the same as not even reading it. What Arista records seems to be saying is that the University of Oregon added new arguments in a reply memorandum and that these new arguments should not be considered by the court.
When a party in a case wants the court to do something, that party often provides a memorandum in support of the requested action. This support brief provides the arguments as to why the court should take action. The opposing party then has an opportunity to counter these arguments by providing arguments as to why the court should not take action. This is the response brief. At this point, the party that asked the court to do something can counter the arguments made by the opposing party. This is the reply brief. Then the court makes a decision.
The party that asked the court to do something generally cannot add new arguments into the reply memorandum. That party may reaffirm its original arguments or try to shoot holes in the opposing party's arguments, but new arguments are generally not allowed. The reason for this is that the opposing party no longer has an opportunity to respond to arguments before the court makes a decision.
If the party that asked the court to do something were allowed to make new arguments, then it would make sense to withhold the best arguments until the reply brief is filed. This would tilt the outcome to the party making the request, which would lead to parties making a lot of requests (it is bad enough now, but it could be a lot worse).
The reality is that procedural matters are an important part of our legal system. A judge could be required to retry a case if an argument was improperly considered or improperly dismissed. Some scrutiny has to be applied, especially when the issue of whether to consider an argument is raised.
The judge would probably read the University of Oregon's reply carefully to determine whether new arguments were raised or not. If new arguments were raised, then the judge might very well strike the new arguments or even the entire reply, thus basing the decision on just the support and response briefs. If the arguments in the reply are not new (or simply shoot holes in Arista's response), then the judge would not strike the reply and make a decision based on all three briefs.
Of course, some research into the specific procedures of the District Court for the District of Oregon is necessary to fully understand the situation, but that seems to be the gist of what is going on.
Maison Fleury glosses over patent protection too glibly. The Open Source Software community has been aware of the threats from software patents for years, yet has done little more than argue that software should not be patentable. During this time, OSS developers have created countless innovations. Had some of these innovations been patented, software patents would not pose as much of a risk because the OSS community would have powerful leverage. Even the risk from patent trolls would be somewhat mitigated because OSS developers could withhold licenses for key innovations from potential licensors of the patent trolls' technologies, drying up all streams of revenue. OSS would also have greater political leverage because it would be easier for groups like the FSF and the OSI to point to the patents as evidence that OSS spurs innovation, not just high-quality craftsmanship.
Patent protection is known to be expensive. But, a lot of money has been invested in OSS. Some of that money could go to paying the costs of securing and maintaining patent rights for OSS innovations. Furthermore, many law firms encourage pro bono work. The OSS community could probably leverage those free legal hours as easily as it leverages developers' hours. The real obstacle to securing patent protection for OSS is political: OSS developers tend to boycott the entire patent system and hope that it will just go away. Unfortunately, ignoring the value of this form of intellectual property protection is a mistake.
Some of the rights that can be secured through software patents are much better suited to OSS goals than copyrights or trademarks. Some OSS developers try to bend copyright and trademark protection in ways that, if accepted, would be harmful to the OSS community, if not the entire software industry. For example, "[s]ome have claimed that an application program that needs a library for its operation is a derivative work of that library." This line of thinking would make Gimp for Windows a derivative work of the Win32 API, making Gimp a product that is ultimately owned by Microsoft. Using patent rights to exclude use of a library by non-OSS would produce the desired result of encouraging the development of OSS without distorting copyright law in such a self-destructive manner.
At least one company seems to show an interest in using the patent system to build a niche for itself. And that company seem to produce a lot of innovations that arguably advance the arts and sciences.
Innovating and seeking patent rights may be completely independent. Sure, there are potential strategies that might leverage the patent system. But, like any business strategy, how can anyone be sure success comes from the strategy or from other factors. You never know for sure that success was in spite of, not a result of, engaging a particular strategy.
Because there are so many other factors, it is hard to prove that a strategic tool, such as software patents, have real benefits. But, it is also hard to prove that they do not have real benefits. To accept either position based on little more than appeal to authority and assertion that the issue has been fully-decided is foolhardy, which is why such arguments are not particularly persuasive.
In the '70s there were those who believed that copyright protection was inappropriate for software, even questioning its basic need:
Many considered copyright to be an inherently wrong form of protection for software and questioned its need. How important would the GPL be if it had to rely a "network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and ... patent forms of protection?" Different forms of protection have different benefits and drawbacks for users, developers, and investors. Arguing, or merely asserting, that only one perspective has any merit does not demonstrate any attemt to weigh these benefits and drawbacks---such approaches are inherently unpersuasive to policymakers.
In this demon-haunted world, dogma is an inadequate substitute for thought.
The /. posts labeling Northeastern University as a patent troll or claiming that the patent should not have issued have been posted too quickly to be credible assessments of the morality of this suit and the worthiness of the patent. The current Wikipedia definition is that a patent troll is "a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic." If the patent was obtained through lawful and ethical means, is valid, and is infringed on by Google, then how is it "unduly aggressive or opportunistic" for Northeastern University to enforce the patent?
Some argue that a patent troll is merely a person or company that seeks to enforce a patent but does not practice the patent. Maybe Northeastern University is not practicing the patent. Then again, the mission of most universities seems to be conducting research, not applying and commercializing research. Licensing research to companies that can and will apply and commercialize that research is one way that universities fund additional research. Maybe universities should have to give all of their research away for free. But currently they do not. And it seems unfair to fault Northeastern for exercising its rights while not pushing the scope of its mission.
Given how quickly Northeastern was accused of being a patent troll, and given that there was no discussion about the proper role of universities or any real analysis of the worthiness of the patent (which was filed in 1994...almost 4 years before Google was founded), it seems likely that some people consider a patent troll to be any person who tries to enforce any patent rights.
Maybe Northeastern is acting like a patent troll. And maybe their patent is worthless. But it takes more than a quick glance at the 20-page issued patent or the 6-page complaint against Google to come up with a reasonable assessment of these issues.
Some analysis of the complaint would at least show that it doesn't look like Northeastern really knows the details of Google's search infrastructure:
Then again, Google's code is not open to the world. If it was, more detailed analysis would be possible. How can Northeastern try to get access to the code? By suing and demanding it as part of discovery. Does this make Northeastern a patent troll? Maybe. But the alternative (aside from discarding the patent system altogether, at least for software innovations) is a system that rewards patent infringers who keep their source code inaccessible to patent holders.
The biggest problem (at least in the U.S.) that existed when it seemed that only copyright protection was available for software, but patent protection was not, was that people would make outright clones of innovative works (using the same ideas, but not the same code), the innovators would then sue the cloners, and then courts would push the doctrines of what copyright could protect.
Copyright protection is much easier to get than patent protection. All you have to do is write down something original and you have a copyright while patent protection requires an adversarial problem. The validity of copyright protection is harder to attack than the validity of a patent (it just takes one publication, anywhere in the world, any language, with all the limitations of the claimed invention, 12 months before the U.S. filing date or before the invention was conceived to invalidate a patent). And the scope of patent protection is defined by a patent's claims. What is the scope of copyright protection for a software application? Patents, which expire 20 years from the date of filing, are relatively short in duration. Copyright protection duration seems to be on a path to eternity.
There are problems with software patents. Patent protection for software "is too much, too long, and too late." But, eliminating software patents altogether won't solve these problems. People who invest in innovations will always try to find the most cost-effective ways to maintain a competitive advantage. For technologies that are easy to clone (which, today, seems to be just about every technology), there will always be pressure on the boundaries of whatever intellectual property rights are available. Eliminate the most appropriate protections and the pressure will cause warping of the protections left behind.
Multi-billion-dollar transnational conglomerates tend to hire a lot of inventors. Some of them do use patents as a key part of their business model. It is likely that efforts that undercut such business models would mean that such companies would be less effective at capitalizing on the innovations produced by their inventors, which could mean that they would hire fewer inventors or hire them at reduced salaries. Some small companies also use patents, sometimes to collect money for sales lost to powerful players and sometimes just to deter competition and potentially become a big player too. Undermining these business models can also lead to reduced demand for inventors.
Eliminating or minimizing the drawbacks that come with a patent system may create enough opportunities for inventors to maintain demand, but it can also shift money away from inventors towards craftsmen and marketers. After all, if you can't make more money by protecting something that's new, why not just make something that's old better and invest in branding it to artificially stimulate demand?
I think that's an erroneous interpretation. It appears to mean that an individual who is in the database for having "been charged with serious and/or significant offenses" must have been fingerprinted or (if you read down a bit more) "three or more convictions for a violent felony or serious drug offense" (which seems redundant since it seems unlikely that anyone with that many serious convictions would not have a set of fingerprints on file).
Fingerprints are used in this system to ensure that an unauthorized person does not purport to be the subject in the NCIC database (perhaps using fake ID) to obtain information about that person.
...if they want to have their names removed from the National Crime Information Center (NCIC) database, which appears to be what the Canadian officials pulled. The NCIC "is provided by the FBI, federal, state, local and foreign criminal justice agencies, and authorized courts." Thus, the NCIC is made up of FBI data and data provided to the FBI by other government organizations. To correct a record in this database, "the subject of the requested record shall request the appropriate arresting agency, court, or correctional agency to initiate action necessary to correct any stated inaccuracy in subject's record or provide the information needed to make the record complete." Unfortunately, accessing the record in the first place can be a challenge; it looks like it requires being fingerprinted and making the request through a law enforcement agency that has access to the record. More information is available here.
http://www.fas.org/irp/agency/doj/fbi/is/ncic.htmMechanical devices are pure physics applications. For that matter, electric circuits and chemicals such as pharmaceutical products are all grounded in pure physics. Should a patent for a mechanical devices, electric circuit, or drug be invalid because it "privatizes physics?" Should a patent for a new type of vehicle be invalid because "it's all just physics?"
Pure mathematics (such as an algorithm) or pure physics are not patentable. But use of mathematics or physics for a useful application may be patentable under U.S. law.
The argument that software should not be patentable because software boils down to just mathematics has the backing of expert authority. It makes some sense from a mathematical perspective: if an algorithm f_1 is unpatentable, and adding a small algorithm to f_n+1 to f_n still creates an unpatentable algorithm, then all algorithms that have unpatentable algorithms at their very base are unpatentable by induction.
But public policy (such as patent law) is not bounded by theoretical mathematical models, even nice, clean ones supported by very intelligent people. At some point under U.S. law, unpatentable mathematics can turn into useful, patentable inventions. Where is the precise boundary? That's like asking: "how many grains of sand does it take to make a heap?"
Public policy ultimately has to deal with a world that is not easily modeled into discrete sets. There are better arguments against software patents then the argument that the algorithms are just mathematics.
The RIAA did not have to show that they lost $D in lost sales. They sought statutory damages instead. Statutory damages can be a bit problematic though, especially copyright statutory damages which are per work. They tend to overpunish on works such as individual songs; a light infringer can rack up even minimum damages very quickly. In this case, the defendant would have been liable for at least $18,000 once infringement was found. On the other hand, they can underpunish in other situations. Imagine someone making an illegal copy of a pre-release movie reel, but being caught before distributing it. The potential damages the individual could have caused to the success of the movie and the total cost of producing the movie may have been much more than the damages caused by the infringer of a bunch of songs, but the statutory liability is quite low (less than what the defendant in this case was hit with I believe).
Jury nullification is a consequence of the constitutional ban on double-jeopardy. This ban was put in place to protect citizens from oppressive practices by the government in the realm of criminal law. It was not designed specifically to enable juries to ignore the law.
In a civil trial (such as this one), the judge can set aside the jury's verdict if the judge finds that the jury's findings are unreasonable. So even if the jury hates copyright law and wants to find for the defendant, the judge can still impose liability (especially since there is a $750 per work minimum for infringement, a minimum that the jury cannot ignore).
One of Vonage's defenses was that the Sprint patents were anticipated by or obvious in light of prior art. One set of proposed jury instructions proposed telling jurors that:
That list did not make it into the final jury instructions. The final jury instructions also did not discuss obviousness (it seems odd that Vonage would argue that the Sprint patents were anticipated by prior art, but not obvious in light of prior art).
The final jury instructions also said that Vonage had to prove anticipation by clear and convincing evidence. At least one scholar has argued that this should be the wrong standard when a defense is based on prior art not considered by the USPTO during patent prosecution---that prior art that was not considered by the USPTO should be allowed to invalidate patent claims if the less-stringent preponderance of evidence standard is met.
Back in April Techdirt claimed that it found applicable prior art from 1996 and 1997. These references were not cited though because most of the patents based their priority on patent applications filed before 1996 and 1997. They did not add new material to the continuation patents; they persuaded the USPTO that the original disclosures contained enough novel, non-obvious material for different sets of claims.
Interestingly enough, there doesn't seem to be a lot of discussion going on about how Vonage is playing the patent game too. In 2006, Vonage purchased three patents from Digital Packet Licensing, Inc.. One of those patents, the '485 patent, was already the subject of law suits against MCI, Time Warner, Qwest, Level 3 Communications, Speakeasy, Globalphone, IPN Communications, Sentito Networks, AT&T, SBC, Sprint, and Verizon, although I do not know what the status of these lawsuits was when Vonage purchased the patents or what the status of these lawsuits now.
More specifically, the jury's verdict was based on the claim that Vonage infringed the following claims:
This wasn't a judgment, this was just an order telling the plaintiff lawyers that they did not provide enough meat in their complaint to enter a default judgment even though the defendant has not even denied their charges. To get through a case, judges have to make a lot more decisions than "A wins, B loses." The bulk of the work is in getting to the point of making that decision (of having the jury make that decision).
Interscope, UMG, and Atlantic had lawyers who drafted a complaint that glossed over their basis for filing suit. A lot of effort was put into identifying the law, but not much effort was put into identifying the facts. Now that they have added some meat to their complaint, they are more likely to win a default judgment if the defendant does not bother to respond to their charges.
That there might be expert testimony available that could undermine the plaintiff's case is irrelevant if the defendant doesn't make the expert testimony available in court. And the court is unlikely to accept a report submitted in another context. How would the court to know whether a report talking about Network Address Translation technology is applicable to this case? The defendant might not have had a NAT router. Or perhaps the defendant did have a NAT router, but all of the computers attached to it were under the defendant's control.
The court refused to enter a default judgment based on speculation that the plaintiff might have a good case. If no defense is presented, the court can justifiably refuse to enter a judgment in favor of the the defendant based on the speculation that the defendant is the one with a good case.
For only a couple of dollars, it is possible to review the current case information using the PACER electronic file access system. Interscope Record, et al., filed an amended complaint on August 23, 2007. The amended complaint goes beyond stating that the plaintiffs were "informed and believe that the Defendant" pirated their works:
The plaintiffs had to serve the the defendant again (by mail), but was otherwise not inconvenienced in this suit. Denying a motion to enter default judgment is not the same as dismissing the case altogether. The order even said that the plaintiffs were granted leave to amend the complaint.
The Recording Industry vs The People blog makes too big a deal about the RIAA not disclosing the Interscope order in another case. This was a trial-level order. It doesn't create an interpretation of law that is binding on any other court (if even itself). Law briefs are already long enough without having to cite thousands (if not millions) of trial-level non-binding orders and decisions that show that other trial-judges might decide against the argument.
Yes it could be. No one knows for sure. Patent applicants do not have to disclose the business plans of the assignee. For all we know, Ewa Dominowska, the sole named inventor on this patent application, may have been working as a Microsoft researcher largely doing his own random interests rather than working towards the fulfillment of a sinister Microsoft plan to destroy the happiness of millions of gamers worldwide.
If /.ers are interested in discouraging adware and spammers, perhaps it would be a good idea to patent various methods of sending sending out ads and spamming. Then the people who create new adware and spamming software (not to mention their customers; people who presumably make use of these tools) without researching the patent system would risk stepping onto a patent landmine.
Unless I'm mistaken, "Party X lacks standing to bring this claim" and "Party X is the wrong plaintiff to bring this claim" are equivalent statements.
That seems right. And you may be right that a "this is really George Lucas's work" could be an effective defense (assuming Viacom thought George Lucas's lawyers were less scary than kdawson's). I'm having trouble finding case law that goes either way on it . As a practical matter, whether one has standing to sue only really affects that person's standing to sue if there is no substantial question of material fact that would affect standing. Whether George Lucas is the real owner of kdawson's Star Wars-themed commercials would likely be a substantial question of material fact (says the commenter who hasn't watched the clips yet).
I think you are right though, if Viacom could prove that George Lucas was the real copyright owner of the entirety of the Star Wars-themed commercials, then the court would probably dismiss the claim.
No, but it might mean that kdawson does not have standing to sue Viacom if it turns out that he doesn't hold a copyright on the work due to its nature as an unauthorized derivative of Lucas's work.
Until it is clear that kdawson's work was a derivative work of Star Wars, kdawson would have standing to sue. If Viacom argued that they did not infringe on kdawson's work because kdawson's work was derived from George Lucas's work, all Viacom would be saying is that the wrong plaintiff came after them. They would still be infringers.
They probably would avoid making this argument. If they succeeded, then they would then face the possibility of being sued by George Lucas and being unable to argue that the Star Wars-themed commercials are not derivative works of Star Wars. They also would lose the protection of the any license from YouTube. After all, if kdawson did not own the copyright in the Star Wars-themed commercials, then kdawson cannot grant YouTube the right to license it to anyone, so YouTube's license of the work would be void.
With the caveat that I have not looked for any cases that address this issue, I suspect that the courts would dismiss the issue unless George Lucas joined as a party to the case or unless he granted Viacom a license to the Star Wars-themed commercials. I suspect that a lot of courts would accept an argument analogous to a property law argument. If you are trespassing on a property, claim it as your own, and then I subsequently trespass on that property, you can eject me. I can't claim that someone else actually owns the property because between you and me, you have the strongest claim to the property. Between kdawson and Viacom, kdawson has the strongest claim to the Star Wars-themed commercials copyright.
Now, if George Lucas licensed kdawson's Star Wars-themed commercials to Viacom, then Viacom could make the argument that it was not an infringer because of that license. A court might still require that George Lucas join in (perhaps through a countersuit), but Viacom would be in a better position than by just saying "George Lucas is the real owner of this work."
The authorities differ on whether that clause would apply to the entirety of kdawson's work or only the Star Wars elements of it. In California, precedent exists suggesting that the entire work is covered only by Lucas's copyright.
It is hard to understand what issue the courts were grappling with without more detail. These determinations are also often very fact-specific. The entirety of kdawson's work may be treated as a derivative work, part of kdawson's work may be treated as a derivative work, or kdawson's work may be treated as an original work.
There seem to be at least three works at issue here, and none of them suggest that Viacom accused kdawson of infringing a copyright held by kdawson.
Work #1: Star Wars. This is an original work (although its origins can be traced to several other works).
Work #2: The Star Wars-themed commercial produced by kdawson. This might be a derivative work of Star Wars, or it might be an original work. Since George Lucas is not involved here, who cares? Viacom cannot argue that because kdawson's work might infringe on the works of George Lucas that Viacom has the right to use kdawson's work.
Work #3: The Viacom produced VH-1 segment featuring the Star Wars-themed commercial and commentary on that commercial. Sure, kdawson could sue for Viacom's use of the Star Wars-themed commercial without permission. That does not mean that Viacom can't protect the copyright in the commentary it produced. Viacom did not produce Star Wars-themed commercials that were derived from the Star Wars-themed commercials kdawson produced. Viacom created a compilation of the Star Wars-themed commercials kdawson produced and original commentary.
For example, if Robert Ebert reviews a movie and takes a few quotes from it, his commentary is still his. The movie producers do not have the rights to use that commentary (except, most likely, minimal non-infringing quotes).
If kdawson is not happy with Viacom's efforts to keep its commentary off of YouTube, then kdawson can a) sue Viacom for infringement of kdawson's work to pressure Viacom to be a bit less tight-fisted with its copyrights or b) send a counter-notice to YouTube to put-back the Viacom clip, then prepare for a defense if Viacom decides to sue for infringement by posting the Viacom-produced commentary.
The court of Slashdot, while a fun place to vent, is unlikely to have much effect. An appeal to change public policy to prevent users from being accused of infringing their own copyrights only makes sense if that is what is happening. That does not seem to be the case here.
There is a lot of talk about getting rid of patent trolls, but little consensus as to what a patent troll is. Very few companies will say "yes: we're patent trolls." At best, they're willing to tolerate being called patent trolls.
What makes a patent troll? Does a company that develops a new technology but licenses it because it does not have the capital or market position to exploit the technology count as a patent troll? What about IBM? They produce products, but they license their patents for use by others in products that don't compete with IBM's products. Does that make IBM a patent troll? Would they have to be making competing products to be on morally solid ground?
There are definitely companies out that abuse the patent system (e.g., by filing continuation applications or requests for reexamination during which the applicants try to stretch the claims of their patents to read on subsequent innovations). But this author has a point that distinguishing the bad guys from the good guys is not easy. Many companies out there see themselves as just legitimately trying to leverage their full rights. Is that significantly different from consumers trying to maximize their rights as consumers by engaging in activities that aren't clearly legal (e.g., using direct music and movie clips for new works without seeking permission, creating libraries of MP3s and copying them to multiple systems, etc.).
Activities that push the limits of the law create risk. Patent applicants pay significant fees and must spend a lot of time in their efforts, resulting in a guaranteed loss. Certain uses of a patent can raise anti-trust concerns or result in loss of the patent. Consumers pushing the boundaries of "fair use" often play a lottery in which the winner loses a nasty law suit. And there is always the risk that Congress or the courts may react by changing the law or interpretation of the law to minimize questionable activities.
But those who are engaged in those activities probably believe that all they are doing is playing by a valid interpretation of the rules.
If /.ers were to create 100 million unique 128-bit keys per second, it would take 1.078x10^23 years (about 7.7 trillion times the age of the universe) to exhaust the 128-bit keyspace. This suggests that giving some kind of legal protection over every single key actually generated might not be harmful public policy. Sure, eventually many of those numbers would have ASCII/UNICODE/etc. meanings such as "free speech good" (128 bits in ASCII), but protection for a number as part of a copyright access control technology does not imply that the creator of the number has any rights over those who have re-created the same number by coincidence. The AACS key might exist out there as part of an audio encoding, image, or movie file. But the AACS has not been trying to stamp out the remote possibility of coincidental use of this number. The only use that they have gone after has been use of the number as a key that is part of a copyright access control technology.
If you don't like laws that protect copyright access control technologies, it is best to develop policy arguments against such laws. Gimicks like creating 128-bit numbers that others can "own" don't prove much of anything.
Copyright owners and webcasters can still negotiate rates (See 17 U.S.C. Sec. 114(f)(3)). The decision that the Copyright Review Board refused to rehear merely establishes the terms and conditions that enable webcasters to license copyrighted works without seeking permission from the copyright owners. If Congress had not enabled the establishment of these compulsory license rates, then webcasters would not be able to broadcast any works without seeking permission from copyright owners because Congress had introduced a digital performance right in the Digital Performance Right in Sound Recordings Act of 1995.
Copyright owners presumably are interested in maximizing their revenues, while webcasters probably would like to minimize their costs. Thus, both groups still have a incentives to negotiate. The compulsory licensing rates will not kill internet radio: they simply provide terms and conditions of last resort for copyright owners and webcasters who cannot otherwise reach an agreement.
First of all, be grateful that you have people who are willing to go to such lengths to make their voices heard in this group. It means that people are thinking and are interested enough to make their ideas heard. I assume that these people are making their time available for free. You can tell them that their help is no longer wanted, but that's about all the group can and should do if they are truly disruptive. Otherwise, appreciate the effort they are putting into trying to make the group's work better.
Second, take a hard look at the group's decision-making procedures. Decisions, which often entail compromises, are necessary for the group to come together as a team. Many decisions can be made informally. But, a lack of a good process for dealing with controversial decisions can give members the sense that they have not had a full voice---that their input is being ignored. Is "majority opinion" in this group a result of formal votes? Or are the "co-leads" simply laying down "majority opinion" by fiat? Are decisions are being driven by personality or by deliberation?
Third, consider designs for your system that allow dissidents the freedom to introduce alternatives outside of the core project. Linux, Apache, Perl, Gimp, and Mozilla are all examples of systems that are extensible without modifying the groups official code-base. The members of your group who want to create alternatives may even go out of their way to create the appropriate hooks in the official code-base to enable this freedom outside the constraints of the group priorities.
Fourth, spend some time studying leadership as a discipline. Start small. Read The Five Dysfunctions of a Team: A Leadership Fable by Patrick M. Lencioni. Ask for honest feedback from the members of your group on your own effectiveness as a co-lead. Learn how to develop the leadership skills in others. Some of these disruptive members may be leaders who have just not learned how to communicate and compromise. The most effective way of dealing with them might be to help them develop those skills, rather than trying to disciplining them.
Fifth, get some cats. I've heard that herding them makes good practice.