"Apple cannot get patent- protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]..."
This passage is especially relevant:
Apple listed 189 GUI elements; the court decided that 179 of these elements had been licensed to Microsoft in the Windows 1.0 agreement and most of the remaining 10 elements were not copyrightable—either they were unoriginal to Apple, or they were the only possible way of expressing a particular idea.
With the Samsung litigation, Apple is not trying to claim a patent on an idea or a metaphor, it is claiming that Samsung copied specific design elements. And, as was mentioned upthread, there are multiple ways of expressing these things. To the extent that they are actually original to Apple (I don't claim to have an answer to this), then they might actually be on decent footing here. Apple didn't license any of this to Samsung, as was the case with the Windows litigation.
Of course, when ProCD was decided it wasn't easy to return the CDs while retaining a copy of the database—a condition which the opinion seems to require. But, as far as I know, this is still good law.
And I don't think it matters that you can't return the software to Wal-Mart, by the way. You can look at the retail purchase as an option contract: to acquire the option, the buyer assumes the cost of returning the software to the manufacturer if he isn't satisfied with the license terms.
Already know that case, not the same. In that case the guy was selling the data on a "free for non commercial use" CD on a commercial website, in this case we are talking about someone getting a retail product where they can NOT see the EULA beforehand, popping it in the PC and if they decide the EULA is too nasty, they will be refused a refund by Walmart thanks to the "no open boxes" rule.
I think you might be misremembering the facts of the case. From the opinion:
Zeidenberg’s position therefore must be that the printed terms on the outside of a box are the parties’ contract—except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties’ choice in this way? Vendors can put the entire terms of a contract on the outside of a box only by using microscopic type, removing other information that buyers might find more useful (such as what the software does, and on which computers it works), or both. The "Read Me" file included with most software, describing system requirements and potential incompatibilities, may be equivalent to ten pages of type; warranties and license restrictions take still more space. Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike.
. ..
ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure. This Zeidenberg did. He had no choice, because the software splashed the license on the screen and would not let him proceed without indicating acceptance.
. ..
A buyer accepts goods under sec. 2-606(1)(b) [of the Uniform Commercial Code] when, after an opportunity to inspect, he fails to make an effective rejection under sec. 2-602(1). ProCD extended an opportunity to reject if a buyer should find the license terms unsatisfactory; Zeidenberg inspected the package, tried out the software, learned of the license, and did not reject the goods.
"Most medical conditions make it impossible to go to the bathroom or put your shirt on?"
No, I was just pointing out a few of the requirements to show how low of a threshold there is in general for it to be considered an emergency. Read the whole list, and see how many of them are far from an emergency. Mobility? sprained ankle could be considered an emergency.
I don't know; I guess I'd rather have ER doctors (and the legislators who decided these were the appropriate criteria) making those determinations than "superdave80" on Slashdot.
2. ERs can still try to collect money from those without insurance that they treat. It's not an automatic free ride.
This isn't really responsive. Of course ERs *try* to collect, but the fact is that a significant amount of the costs of treating the uninsured do get passed along to those without insurance.
3. Notice all those overcrowded ERs (at least those that haven't closed) with people that have non-emergency problems? Wasn't it great that the Federal Government forced all of our ERs to take on these cases against their will? I'm glad they are going to force us to do more things against our will.
People who show up in ERs without emergencies aren't necessarily getting a lot in the way of treatment. Unless you have some evidence to the contrary, I don't think the federal government is forcing emergency room doctors to provide comprehensive care.
It's not my fault that if I injure myself others feel compelled to help me. If I think I can go it alone, who does it hurt?
It might not hurt anyone, but we can't tailor laws for each individual. And I think if society as a whole were able to get together and work this out in advance (that is, before knowing who would be wealthy and who would get leukemia), most people would probably prefer health coverage to be a public service. That's the hypothetical ex ante bargain and it makes sense to use that as the rule.
So what if you don't want it? There are a lot of services that I don't take advantage of. That doesn't necessarily mean that I think they shouldn't exist.
Any criticism of Obama is always followed with an illogical statement followed by bashing Bush ("I'd rather have healthcare than go to the moon! Blame Bush for spending our money in Iraq!" Ignoring the fact that Obama's healthcare will cost over a trillion dollars for the next decade).
I get that health insurance is expensive, but given that the costs of the Iraq war have surpassed $700 billion, how is blaming Bush for the money spent in Iraq anything other than a totally valid point?
Well, the doctrinal test for a fourth amendment violation (See Katz v United States) is:
1. Did the subject of the search entertain a subjective expectation of privacy?
2. Was the expectation one that society is prepared to recognize as reasonable?
The availability of cheap technology is relevant to #2. If anyone can pick up a thermal imaging unit at Wal-Mart for 50 bucks, then we really can't entertain a reasonable expectation that these devices won't be used to peer into our homes.
Of course, there's that old saw about how the right to free speech doesn't mean you can yell "fire" in a crowded theater. And I think you can get in trouble for making death threats, as well. I don't think a lot of people would argue that the First Amendment should provide a blanket protection for anything anyone wants to say. I need to read the article, but what these guys were doing was really dangerous or inflammatory.
I don't think I missed his argument. I believe the argument is:
It doesn't make sense to pay people for doing something anyone can do.
Anyone can write anything -- from the smallest child to the oldest Anzheimer's victim.
Therefore, it doesn't make sense to pay people to write books.
I responded by attacking #2 (Though #1 is flawed as well. If your time is worth anything, then there are perfectly good reasons to pay specific people to do things any competent person could do.). Not everyone can write moving, original fiction (for example).
I fail to see how Cory Doctorow is relevant to the above. I understand that he distributes free digital copies of his books. He also sells a lot of honest-to-goodness dead-tree books. Could he make a living without being paid at all for his writing? Possibly. Is it reasonable to expect that all authors could pull this off? I don't think so.
Books: Anyone can write anything anywhere that everyone everywhere can read all instantly, why should anyone be paid for doing what anyone can do from the smallest child to the oldest altzheimers victim. A timely analysis of a situation is another thing altogether, I would pay for information before others have received it.
The smallest child to the oldest Alzheimer's victim could design a bridge, too. That doesn't mean I'd want to drive over it. Are you really suggesting that author's shouldn't be paid?
We were to be accorded limited/fair use of purchased copyrighted works. Instead we are only allowed to view, never transfer, transform, or reproduce these works in any way. Another bait and switch, I bought a product but now, somehow, I have no ownership rights to it.
Really? Never transform? Look up Campbell v. Acuff-Rose when you get a chance.
Now tell me, your father, did he invent his own number system? No?
Did he invent his own alphabet? No.
Were the laws of physics that his branch of engineering is based upon, discovered by him?
Did he invent the math system behind it? The algebra, the calculus?
Facts aren't copyrightable; works of authorship are. The law in this area is pretty well-settled. The original poster wasn't saying no one should be able to use his work in new ways -- only that he thinks it is fitting that he should retain the right to control who publishes it. Your reply does not address this point.
If you don't know, it's because Android is just a single word that's been in the modern language for a couple of generations now. Apparently there are laws against somebody absconding with single words of our language and claiming sole ownership of them. Of course the courts are slow and stupid, so anyone fighting this will have to pay lots of lawyers lots of money before getting this crushed, but at least Google has that cash.
Right. That's why trademarks are never granted for single words like target or Amazon. Because there are laws against it.
But that doesn't make any sense either, because then you could get sued for a situation like this:
A) Create a website that violates some law in one country that is part of the EU, such as distributing Nazi texts which (as far as I know) is illegal in Germany, but legal in some EU nations such as the UK (where they actually have some shell of freedom of speech)
B) The website is hosted in a legal country such as the UK and all maintainers of it live, work, and have all financial ties in the UK
C) Germany brings charges against you
That just doesn't make any sense (not that most governments do), and seems contrary to having independent nation's laws rather then general EU laws.
Umm, maybe you're joking, but that actually happened.
I'm reading the opinion now. Here's what it says about transformative purpose:
Second, the court determined that iParadigms' use of
each of the plaintiffs' written submissions qualified as a
"fair use" under 17 U.S.C. Â 107 and, therefore, did not
constitute infringement. In particular, the court found that
the use was transformative because its purpose was to
prevent plagiarism by comparative use, and that
iParadigms' use of the student works did not impair the
market value for high school term papers and other such
student works.
I'm not sure I agree with the court's assertion that iParadigms' use did not impair the market value for high school term papers, though. It seems like having your paper in their database would greatly impair its market value.
I'm actually writing a brief on this topic right now (or should be) and you're right. There's not a lot of precedent for the idea that you can copy an entire work and still claim transformative use. When courts have found transformative use in such cases it has been because the new work served an entirely different purpose from the original, with purpose determined by the use people will actually make of the new work.
With Google, I think users could still use the excerpts for the same purpose as the original works, but this would probably depend on the nature of the book itself. An excerpt from a novel might not be read for entertainment, but if the excerpt included an entire essay or short story then it could be used for the same purpose as the original work.
If the instructor is reading my paper with the intent of 'diff'-ing it against previous works, no matter what the mechanism, then the trust has already been destroyed. The paper should be read for content, clarity, etc., and if, during that process, something jumps out as familiar or unusual for a certain student's typical work, then there's grounds for further investigation.
How exactly is the instructor supposed to know whether something is unusual for a student's work if it is the first paper the student has turned in? A lot of classes only involve one or two substantive writing assignments.
Basement musicians or those of us who are still using 2nd generation iPods. I still use mine pretty frequently and haven't seen the need to upgrade. I just got one of the new MacBooks, and now I can't sync my iPod, which actually really sucks.
Slashdot Mirror
Didn't they try that crap on Microsoft as well over Windows and lose?
Oh yes, yes they did: Apple v Microsoft
"Apple cannot get patent- protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]..."
This passage is especially relevant:
Apple listed 189 GUI elements; the court decided that 179 of these elements had been licensed to Microsoft in the Windows 1.0 agreement and most of the remaining 10 elements were not copyrightable—either they were unoriginal to Apple, or they were the only possible way of expressing a particular idea.
With the Samsung litigation, Apple is not trying to claim a patent on an idea or a metaphor, it is claiming that Samsung copied specific design elements. And, as was mentioned upthread, there are multiple ways of expressing these things. To the extent that they are actually original to Apple (I don't claim to have an answer to this), then they might actually be on decent footing here. Apple didn't license any of this to Samsung, as was the case with the Windows litigation.
Of course, when ProCD was decided it wasn't easy to return the CDs while retaining a copy of the database—a condition which the opinion seems to require. But, as far as I know, this is still good law.
And I don't think it matters that you can't return the software to Wal-Mart, by the way. You can look at the retail purchase as an option contract: to acquire the option, the buyer assumes the cost of returning the software to the manufacturer if he isn't satisfied with the license terms.
Already know that case, not the same. In that case the guy was selling the data on a "free for non commercial use" CD on a commercial website, in this case we are talking about someone getting a retail product where they can NOT see the EULA beforehand, popping it in the PC and if they decide the EULA is too nasty, they will be refused a refund by Walmart thanks to the "no open boxes" rule.
I think you might be misremembering the facts of the case. From the opinion:
Zeidenberg’s position therefore must be that the printed terms on the outside of a box are the parties’ contract—except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties’ choice in this way? Vendors can put the entire terms of a contract on the outside of a box only by using microscopic type, removing other information that buyers might find more useful (such as what the software does, and on which computers it works), or both. The "Read Me" file included with most software, describing system requirements and potential incompatibilities, may be equivalent to ten pages of type; warranties and license restrictions take still more space. Notice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike.
. . .
ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure. This Zeidenberg did. He had no choice, because the software splashed the license on the screen and would not let him proceed without indicating acceptance.
. . .
A buyer accepts goods under sec. 2-606(1)(b) [of the Uniform Commercial Code] when, after an opportunity to inspect, he fails to make an effective rejection under sec. 2-602(1). ProCD extended an opportunity to reject if a buyer should find the license terms unsatisfactory; Zeidenberg inspected the package, tried out the software, learned of the license, and did not reject the goods.
ProCD v Zeidenberg, 86 F3d 1447 (7th Cir 1996), look it up.
Twitter? Really? Joe Consumer actually uses Twitter? And here I thought it was only used for personal brand promotion...
Or did you mean that Joe Consumer wants to read Twitter?
Yes. My sister-in-law and her high school friends use Twitter as a drop-in replacement for IM/texting. My understanding is that this is pretty common.
"Most medical conditions make it impossible to go to the bathroom or put your shirt on?"
No, I was just pointing out a few of the requirements to show how low of a threshold there is in general for it to be considered an emergency. Read the whole list, and see how many of them are far from an emergency. Mobility? sprained ankle could be considered an emergency.
I don't know; I guess I'd rather have ER doctors (and the legislators who decided these were the appropriate criteria) making those determinations than "superdave80" on Slashdot.
Yes, if you can't go to the bathroom or put your shirt on, it's an 'emergency'.
Agreed.
So the law effectively means that nearly any medical condition is an emergency.
Most medical conditions make it impossible to go to the bathroom or put your shirt on?
2. ERs can still try to collect money from those without insurance that they treat. It's not an automatic free ride.
This isn't really responsive. Of course ERs *try* to collect, but the fact is that a significant amount of the costs of treating the uninsured do get passed along to those without insurance.
3. Notice all those overcrowded ERs (at least those that haven't closed) with people that have non-emergency problems? Wasn't it great that the Federal Government forced all of our ERs to take on these cases against their will? I'm glad they are going to force us to do more things against our will.
People who show up in ERs without emergencies aren't necessarily getting a lot in the way of treatment. Unless you have some evidence to the contrary, I don't think the federal government is forcing emergency room doctors to provide comprehensive care.
It's not my fault that if I injure myself others feel compelled to help me. If I think I can go it alone, who does it hurt?
It might not hurt anyone, but we can't tailor laws for each individual. And I think if society as a whole were able to get together and work this out in advance (that is, before knowing who would be wealthy and who would get leukemia), most people would probably prefer health coverage to be a public service. That's the hypothetical ex ante bargain and it makes sense to use that as the rule. So what if you don't want it? There are a lot of services that I don't take advantage of. That doesn't necessarily mean that I think they shouldn't exist.
Yeah, NASA's budget isn't huge, but aren't moon missions incredibly expensive compared to more routine stuff like shuttle missions?
Any criticism of Obama is always followed with an illogical statement followed by bashing Bush ("I'd rather have healthcare than go to the moon! Blame Bush for spending our money in Iraq!" Ignoring the fact that Obama's healthcare will cost over a trillion dollars for the next decade).
I get that health insurance is expensive, but given that the costs of the Iraq war have surpassed $700 billion, how is blaming Bush for the money spent in Iraq anything other than a totally valid point?
The availability of cheap technology is relevant to #2. If anyone can pick up a thermal imaging unit at Wal-Mart for 50 bucks, then we really can't entertain a reasonable expectation that these devices won't be used to peer into our homes.
Sorry, that was supposed to read "...maybe what these guys were doing was really dangerous or inflammatory."
Of course, there's that old saw about how the right to free speech doesn't mean you can yell "fire" in a crowded theater. And I think you can get in trouble for making death threats, as well. I don't think a lot of people would argue that the First Amendment should provide a blanket protection for anything anyone wants to say. I need to read the article, but what these guys were doing was really dangerous or inflammatory.
I don't think I missed his argument. I believe the argument is:
I responded by attacking #2 (Though #1 is flawed as well. If your time is worth anything, then there are perfectly good reasons to pay specific people to do things any competent person could do.). Not everyone can write moving, original fiction (for example).
I fail to see how Cory Doctorow is relevant to the above. I understand that he distributes free digital copies of his books. He also sells a lot of honest-to-goodness dead-tree books. Could he make a living without being paid at all for his writing? Possibly. Is it reasonable to expect that all authors could pull this off? I don't think so.
Books: Anyone can write anything anywhere that everyone everywhere can read all instantly, why should anyone be paid for doing what anyone can do from the smallest child to the oldest altzheimers victim. A timely analysis of a situation is another thing altogether, I would pay for information before others have received it.
The smallest child to the oldest Alzheimer's victim could design a bridge, too. That doesn't mean I'd want to drive over it. Are you really suggesting that author's shouldn't be paid?
We were to be accorded limited/fair use of purchased copyrighted works. Instead we are only allowed to view, never transfer, transform, or reproduce these works in any way. Another bait and switch, I bought a product but now, somehow, I have no ownership rights to it.
Really? Never transform? Look up Campbell v. Acuff-Rose when you get a chance.
Facts aren't copyrightable; works of authorship are. The law in this area is pretty well-settled. The original poster wasn't saying no one should be able to use his work in new ways -- only that he thinks it is fitting that he should retain the right to control who publishes it. Your reply does not address this point.
If you don't know, it's because Android is just a single word that's been in the modern language for a couple of generations now. Apparently there are laws against somebody absconding with single words of our language and claiming sole ownership of them. Of course the courts are slow and stupid, so anyone fighting this will have to pay lots of lawyers lots of money before getting this crushed, but at least Google has that cash.
Right. That's why trademarks are never granted for single words like target or Amazon. Because there are laws against it.
But that doesn't make any sense either, because then you could get sued for a situation like this: A) Create a website that violates some law in one country that is part of the EU, such as distributing Nazi texts which (as far as I know) is illegal in Germany, but legal in some EU nations such as the UK (where they actually have some shell of freedom of speech) B) The website is hosted in a legal country such as the UK and all maintainers of it live, work, and have all financial ties in the UK C) Germany brings charges against you That just doesn't make any sense (not that most governments do), and seems contrary to having independent nation's laws rather then general EU laws.
Umm, maybe you're joking, but that actually happened.
I'm reading the opinion now. Here's what it says about transformative purpose:
Second, the court determined that iParadigms' use of each of the plaintiffs' written submissions qualified as a "fair use" under 17 U.S.C. Â 107 and, therefore, did not constitute infringement. In particular, the court found that the use was transformative because its purpose was to prevent plagiarism by comparative use, and that iParadigms' use of the student works did not impair the market value for high school term papers and other such student works.
I'm not sure I agree with the court's assertion that iParadigms' use did not impair the market value for high school term papers, though. It seems like having your paper in their database would greatly impair its market value.
I'm actually writing a brief on this topic right now (or should be) and you're right. There's not a lot of precedent for the idea that you can copy an entire work and still claim transformative use. When courts have found transformative use in such cases it has been because the new work served an entirely different purpose from the original, with purpose determined by the use people will actually make of the new work. With Google, I think users could still use the excerpts for the same purpose as the original works, but this would probably depend on the nature of the book itself. An excerpt from a novel might not be read for entertainment, but if the excerpt included an entire essay or short story then it could be used for the same purpose as the original work.
What is it that Ronald Reagan said? Trust, but verify?
If the instructor is reading my paper with the intent of 'diff'-ing it against previous works, no matter what the mechanism, then the trust has already been destroyed. The paper should be read for content, clarity, etc., and if, during that process, something jumps out as familiar or unusual for a certain student's typical work, then there's grounds for further investigation.
How exactly is the instructor supposed to know whether something is unusual for a student's work if it is the first paper the student has turned in? A lot of classes only involve one or two substantive writing assignments.
Basement musicians or those of us who are still using 2nd generation iPods. I still use mine pretty frequently and haven't seen the need to upgrade. I just got one of the new MacBooks, and now I can't sync my iPod, which actually really sucks.