I stand corrected on the point about AAC being Apple-only. But it's still more platform-dependent than MP3 at the moment. Perhaps in a couple of years' time I'll deeply regret the fortnight spent ripping my CD collection into MP3 format, but for now I'm happy to have avoided the problems encountered by friends who ripped their collections into AAC and then wondered why they couldn't play them on their new mobile phone's MP3 player.
Well, that's all very interesting, but I'm not aware of any other format that will play on both iPods and other digital audio players. Ogg Vorbis is all very well but it's not supported by many players, particularly not by iPod, and as for AAC - I don't buy songs off iTunes, and why should I rip my CDs in a format that locks me in to buying iPods in future?
Like the "Unipage will destroy PDF!" story yesterday, I suspect that reports of MP3's death are, currently, somewhat exaggerated.
Try Opera Mini - a java-based browser that should work on any modern mobile phone. From your mobile phone browser - once it has finally booted up and you have made it to the address input page - go to mini.opera.com.
Copyright is a protection against copying. If you independently create a similar work then (at least in theory) it will not infringe copyright even if it is "near identical" to the previous work.
Contrast with patents, where your software will infringe a patent if it falls within that patent's claims, even if you created it entirely independently and had no idea the patented technology even existed - one reason why software patents are such a bad idea.
However, if your source code is "near identical" to the source code of another program, then a lawyer is going to have a field day waving the two versions of the code under a judge's nose and inviting the judge to draw the "obvious" conclusion. In a civil case the copyright holder only needs to show it is more likely than not that you copied their code.
So to answer the original question: "how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?"
In the end, the only way to do this is by being able to demonstrate that you did not copy the previous version. So that means having clear, documented processes (clean room techniques etc) so that you have enough evidence of independent creation to overcome what could otherwise be a powerful prima facie case of infringement.
That said, I suspect it is pretty unlikely that this particular situation would arise with anything other than very trivial programs. You're more likely to end up with either (i) flagrant lifting of code, or (ii) disputes over whether a "reimplementation" of an earlier program crosses the line from being an independent program of the same type, to having copied substantial parts of the earlier program (e.g. "look and feel" disputes).
Here in the UK, there are no "fair use" protections that allow individuals to rip CDs onto their hard drive or iPod. To do so is an infringement of copyright.
But so what? If the music industry cares, they can sue me and get a court order requiring me to irrevocably delete those files from my iPod and hard drive, and to cease from any similar activity in future. Until they get round to that - and believe me, hell will freeze over before music companies try that one, since doing so would be the PR meltdown of all time - then I couldn't care less, and I'm certainly not about to spend upwards of £2,500 repurchasing my music collection on iTunes.
Oops! Couldn't do that anyway - I use Linux. Guess that makes me a thief twice over, then.
Sinclair ZX-81, acquired at age 8. Followed a year or so later by a ZX Spectrum 48K, then a ZX Spectrum +2 (ghastly Amstrad travesty with built-in tape deck, 128K RAM, but no character or charm at all). Then I dropped out of the computer-owning classes for almost 15 years before acquiring a (Linux-powered) D*ll last year.
I agree but it's out of my hands. My firm uses.DOC exclusively and doesn't seem to care that every single one of the thousands of.DOC files we create every day only increases MS's power and control over our business.
Let's face it, OOo is pretty lame. I hate to say it, but it's true. The user interface is simply atrocious (ever tried using outline numbering? Or perhaps you could try outline numbering instead? Yup, two different features with the same name. Neither of which works properly.) For complex documents (eg legal agreements) I'm reduced to accessing my firm's Word 2000 installation under Citrix.:-(
While I have to use IE at work, I good news is I don't get that infantile anti-IE pop-up. The bad news is I don't get anything, other than the following stern message from our internet filtering software:
Access to the site lkml.org is being denied because it is currently listed in the -adult.language- category which is being blocked according to local network access policies.
If you feel this site is listed in the incorrect category, click here to forward it for re-evaluation.
As has been pointed out elsewhere on this thread, Microsoft are taking the credit for people receiving less spam through the use of tools developed by third parties.
So on the same basis, Microsoft can indeed be given the credit for eliminating viruses. Millions of people are now able to operate their PCs on a highly-secure, virus-free basis. The fact they've had to install third party software to do so is neither here nor there...
I don't see why the fact you're "an IP lawyer" should have anything to do with what side you're on. So am I, as it happens. So, for that matter, is Eben Moglen, and I don't seek him rushing to support the RIAA any time soon.
This isn't about people being paid money they deserve - I don't have any problem with the record industry charging for their products, and I don't (generally) make (many) illegal copies of music or have any great sympathy for those caught putting 000s of tracks on file-sharing services
The point is that though that the music industry is turning file-sharing and "piracy" into a scapegoat and using this to at best inconvenience, at worst rip-off their legitimate customers (or even compromise their computer systems - can you say, "rootkit"?). Copy-protected CDs, restrictive licensing/DRMing of music downloads (so that people moving from the US to Europe lose all their iTunes downloads, for example). Twenty years ago if you changed your hifi you didn't have to repurchase your entire record collection. Now? Oops, please tell me you didn't switch from an iPod to another make of "MP3" player? And whaddya mean you bought a copy-protected CD and now you want to listen it on your iPod? Go buy a downloaded version as well, you thief!
The fact is that what makes money for the record companies is good music that people want to buy. It's the failure to find any really bankable, long-term, good quality acts that is the real problem for the record industry, but they prefer to make examples of a few "pirates" rather than address those deeper-rooted problems.
This story only goes to underline this - find the right product, the right price and the right delivery mechanism, and people really do prefer to buy the legitimate goods rather than going for illegal copies.
Sadly indicative of NASA's decline...
on
Pluto Probe Launches
·
· Score: 2, Funny
In the good old days, before "faster-better-cheaper", NASA would have made sure it built three or four redundant back-up planets into the mission plan, in case the original planet got downgraded en route.
I'm not sure what the US position is, but in the European Union we have "database rights" that are rights in a database as a whole, rather than in the data held within that database. So in the case of baseball, there's nothing to stop you revealing that so-and-so scored 70 home runs in a season, but you might be prevented from systematically using the database in order to compile a searchable database of home runs per season across all players over the past 50 years.
That said, attempts by sporting bodies in Europe to enforce these rights have not met with success. For example, the British Horseracing Board tried to stop the bookmakers William Hill from using the BHB database of pending horse races for its website, and various football governing bodies tried to use database rights to force companies publishing TV listings (TV companies, newspapers etc.) to pay royalties for including details of football fixtures in their listings.
All these attempts failed when the European Court of Justice held that the sporting bodies had not invested sufficient resources in creating these fixtures databases. All the effort had actually gone into arranging and managing the fixtures in order to run the actual sport, and getting a database that could then be licensed to others was just a by-product of this main activity, rather than something needing sufficient effort in its own right to qualify for database rights.
According to Sony's website, it will read PDFs and other files (presumably including plain text), but you need to convert them to the Reader's own file format "using supplied software".
But apparently Sony have not confirmed whether a Mac version of the conversion software will be available. And I'm guessing that Linux users certainly need not apply. *sigh*
Checking the UK trade mark database, it looks like the company making this claim does not have a trade mark registration for "G-Mail".
Without a registered trade mark (not "trademark" in the UK) the claimant would need to rely on "passing off", which would involve them showing (i) they have built up a reputation in the name; (ii) Google's use of the name constitutes a misrepresentation leading to confusion in the marketplace; and (iii) this has caused the claimant damage.
This isn't easy to prove, especially if you're a small company with few resources. You certainly have very little hope of a quick result using summary judgment, so you're looking at months of very expensive litigation leading up to a trial. In the meantime your company's gone bust because all your time and energy has been expended on the legal action rather than on running your business. A responsible IP litigation lawyer would be advising this company to be cautious, I suspect.
Useful tip about the keyword searches, but the other Google Toolbar/Googlebar feature I find useful is the button for moving up the directory tree on a website. Is an alternative available for Firefox that doesn't need the toolbar installed?
This franchise is running way ahead of schedule. According to the Simpsons episode "Itchy & Scratchy: The Movie", it'll be at least 2025 before the release of Star Trek XII: So Very Tired.
Sample dialogue: "Captain's Log, Stardate 6051: Had trouble sleeping last night; my hiatal hernia is acting up. The ship is drafty and damp. I complain, but nobody listens."
Slashdot Mirror
More evidence of the public-school trainwreck
That would be why the quality of grammar on Slashdot are declining.
That's a great idea, but I will never forgive you for not having suggested it to me *before* I ripped 300 CDs into MP3 format. ;-)
I stand corrected on the point about AAC being Apple-only. But it's still more platform-dependent than MP3 at the moment. Perhaps in a couple of years' time I'll deeply regret the fortnight spent ripping my CD collection into MP3 format, but for now I'm happy to have avoided the problems encountered by friends who ripped their collections into AAC and then wondered why they couldn't play them on their new mobile phone's MP3 player.
Well, that's all very interesting, but I'm not aware of any other format that will play on both iPods and other digital audio players. Ogg Vorbis is all very well but it's not supported by many players, particularly not by iPod, and as for AAC - I don't buy songs off iTunes, and why should I rip my CDs in a format that locks me in to buying iPods in future? Like the "Unipage will destroy PDF!" story yesterday, I suspect that reports of MP3's death are, currently, somewhat exaggerated.
Try Opera Mini - a java-based browser that should work on any modern mobile phone. From your mobile phone browser - once it has finally booted up and you have made it to the address input page - go to mini.opera.com.
Copyright is a protection against copying. If you independently create a similar work then (at least in theory) it will not infringe copyright even if it is "near identical" to the previous work.
Contrast with patents, where your software will infringe a patent if it falls within that patent's claims, even if you created it entirely independently and had no idea the patented technology even existed - one reason why software patents are such a bad idea.
However, if your source code is "near identical" to the source code of another program, then a lawyer is going to have a field day waving the two versions of the code under a judge's nose and inviting the judge to draw the "obvious" conclusion. In a civil case the copyright holder only needs to show it is more likely than not that you copied their code.
So to answer the original question: "how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?"
In the end, the only way to do this is by being able to demonstrate that you did not copy the previous version. So that means having clear, documented processes (clean room techniques etc) so that you have enough evidence of independent creation to overcome what could otherwise be a powerful prima facie case of infringement.
That said, I suspect it is pretty unlikely that this particular situation would arise with anything other than very trivial programs. You're more likely to end up with either (i) flagrant lifting of code, or (ii) disputes over whether a "reimplementation" of an earlier program crosses the line from being an independent program of the same type, to having copied substantial parts of the earlier program (e.g. "look and feel" disputes).
Here in the UK, there are no "fair use" protections that allow individuals to rip CDs onto their hard drive or iPod. To do so is an infringement of copyright.
But so what? If the music industry cares, they can sue me and get a court order requiring me to irrevocably delete those files from my iPod and hard drive, and to cease from any similar activity in future. Until they get round to that - and believe me, hell will freeze over before music companies try that one, since doing so would be the PR meltdown of all time - then I couldn't care less, and I'm certainly not about to spend upwards of £2,500 repurchasing my music collection on iTunes.
Oops! Couldn't do that anyway - I use Linux. Guess that makes me a thief twice over, then.
Out of interest, do you work for Microsoft's Windows Vista marketing team?
Sinclair ZX-81, acquired at age 8. Followed a year or so later by a ZX Spectrum 48K, then a ZX Spectrum +2 (ghastly Amstrad travesty with built-in tape deck, 128K RAM, but no character or charm at all). Then I dropped out of the computer-owning classes for almost 15 years before acquiring a (Linux-powered) D*ll last year.
I agree but it's out of my hands. My firm uses .DOC exclusively and doesn't seem to care that every single one of the thousands of .DOC files we create every day only increases MS's power and control over our business.
Let's face it, OOo is pretty lame. I hate to say it, but it's true. The user interface is simply atrocious (ever tried using outline numbering? Or perhaps you could try outline numbering instead? Yup, two different features with the same name. Neither of which works properly.) For complex documents (eg legal agreements) I'm reduced to accessing my firm's Word 2000 installation under Citrix. :-(
While I have to use IE at work, I good news is I don't get that infantile anti-IE pop-up. The bad news is I don't get anything, other than the following stern message from our internet filtering software:
Access to the site lkml.org is being denied because it is currently listed in the -adult.language- category which is being blocked according to local network access policies.
If you feel this site is listed in the incorrect category, click here to forward it for re-evaluation.
What do those Linux developers get up to?
As has been pointed out elsewhere on this thread, Microsoft are taking the credit for people receiving less spam through the use of tools developed by third parties.
So on the same basis, Microsoft can indeed be given the credit for eliminating viruses. Millions of people are now able to operate their PCs on a highly-secure, virus-free basis. The fact they've had to install third party software to do so is neither here nor there...
I don't see why the fact you're "an IP lawyer" should have anything to do with what side you're on. So am I, as it happens. So, for that matter, is Eben Moglen, and I don't seek him rushing to support the RIAA any time soon.
This isn't about people being paid money they deserve - I don't have any problem with the record industry charging for their products, and I don't (generally) make (many) illegal copies of music or have any great sympathy for those caught putting 000s of tracks on file-sharing services
The point is that though that the music industry is turning file-sharing and "piracy" into a scapegoat and using this to at best inconvenience, at worst rip-off their legitimate customers (or even compromise their computer systems - can you say, "rootkit"?). Copy-protected CDs, restrictive licensing/DRMing of music downloads (so that people moving from the US to Europe lose all their iTunes downloads, for example). Twenty years ago if you changed your hifi you didn't have to repurchase your entire record collection. Now? Oops, please tell me you didn't switch from an iPod to another make of "MP3" player? And whaddya mean you bought a copy-protected CD and now you want to listen it on your iPod? Go buy a downloaded version as well, you thief!
The fact is that what makes money for the record companies is good music that people want to buy. It's the failure to find any really bankable, long-term, good quality acts that is the real problem for the record industry, but they prefer to make examples of a few "pirates" rather than address those deeper-rooted problems.
This story only goes to underline this - find the right product, the right price and the right delivery mechanism, and people really do prefer to buy the legitimate goods rather than going for illegal copies.
In the good old days, before "faster-better-cheaper", NASA would have made sure it built three or four redundant back-up planets into the mission plan, in case the original planet got downgraded en route.
...it only takes Slashdot editors 50 milliseconds to forget each story they post.
I'm not sure what the US position is, but in the European Union we have "database rights" that are rights in a database as a whole, rather than in the data held within that database. So in the case of baseball, there's nothing to stop you revealing that so-and-so scored 70 home runs in a season, but you might be prevented from systematically using the database in order to compile a searchable database of home runs per season across all players over the past 50 years.
That said, attempts by sporting bodies in Europe to enforce these rights have not met with success. For example, the British Horseracing Board tried to stop the bookmakers William Hill from using the BHB database of pending horse races for its website, and various football governing bodies tried to use database rights to force companies publishing TV listings (TV companies, newspapers etc.) to pay royalties for including details of football fixtures in their listings.
All these attempts failed when the European Court of Justice held that the sporting bodies had not invested sufficient resources in creating these fixtures databases. All the effort had actually gone into arranging and managing the fixtures in order to run the actual sport, and getting a database that could then be licensed to others was just a by-product of this main activity, rather than something needing sufficient effort in its own right to qualify for database rights.
According to Sony's website, it will read PDFs and other files (presumably including plain text), but you need to convert them to the Reader's own file format "using supplied software".
But apparently Sony have not confirmed whether a Mac version of the conversion software will be available. And I'm guessing that Linux users certainly need not apply. *sigh*
Checking the UK trade mark database, it looks like the company making this claim does not have a trade mark registration for "G-Mail".
Without a registered trade mark (not "trademark" in the UK) the claimant would need to rely on "passing off", which would involve them showing (i) they have built up a reputation in the name; (ii) Google's use of the name constitutes a misrepresentation leading to confusion in the marketplace; and (iii) this has caused the claimant damage.
This isn't easy to prove, especially if you're a small company with few resources. You certainly have very little hope of a quick result using summary judgment, so you're looking at months of very expensive litigation leading up to a trial. In the meantime your company's gone bust because all your time and energy has been expended on the legal action rather than on running your business. A responsible IP litigation lawyer would be advising this company to be cautious, I suspect.
Sorry, Amazon already patented all those ideas. Except for "Naked Fridays", which was nabbed by Microsoft.
My theory is that Jeff Bezos is an anti-IP anarchist working to bring down the patent system from the inside.
Useful tip about the keyword searches, but the other Google Toolbar/Googlebar feature I find useful is the button for moving up the directory tree on a website. Is an alternative available for Firefox that doesn't need the toolbar installed?
And now Wikipedia's entry on slashdotting is /.ed...
As a parent, I'm concerned that this might result in large numbers of pornographic websites being established on the internet.
Oh, wait...
This franchise is running way ahead of schedule. According to the Simpsons episode "Itchy & Scratchy: The Movie", it'll be at least 2025 before the release of Star Trek XII: So Very Tired.
Sample dialogue: "Captain's Log, Stardate 6051: Had trouble sleeping last night; my hiatal hernia is acting up. The ship is drafty and damp. I complain, but nobody listens."