Some things are worth a lot of money. I don't think any professional athlete is worth $20 million or more, but the market disagrees. If they work for five years at $5 million a year, they never need to work again if they manage their money well. Corporate executives, raking in $1-25 million each year in salary and bonuses could easily retire after a few years. Why should an artist, who spends two years crafting a sculpture from a $200,000 block of marble, or one who spends that time writing, composing, and recording an album, not be entitled to make a few million dollars from that endeavour, if that's the value the market places on it?
Their contribution can't be less valuable than the athlete or the executive.
So don't try to say that it's copyright that allows people to strike it rich and milk it forever--it's the market, and it would exist without copyright. Entertainment is big business. We build $300 million stadiums, finance dozens of $100 million movies, and spend billions on the people who make it all work. Just because you or I are not in a position to make millions in a couple years does not mean that no one should be allowed to, or that a system that preserves anyone's right to do so is somehow flawed.
If there's a flaw, it's the value that the market places on the products, irrespective of copyright. If the album were only worth $500,000, then the royalties wouldn't make anyone rich.
All these guys care about is to acquire rights to something, lock it away in a drawer and let it collect money for them. That's about the whole "business model" of the industry.
So? You're free to ignore them and choose alternate sources of entertainment. If you don't like the business model, support the ones you do. With the Internet and computers capable of producing near-studio quality tracks and albums, there is simply no excuse to the unfettered piracy of big media labels.
If it were truly 'crap' then there should be little to no interest in possessing it.
If you are not that talented and can't keep making better music than people trying to copy your stuff... then you shouldn't get any more money because you suck.
Would you use the same argument against yourself? If you can't compete on cost with an outsourced worker, you shouldn't get any more money because you suck.
The simple reality is that we don't need a labor force anywhere near as large as we have--but people seem to be averse to supporting the indigent, so instead, we create bullshit office jobs and needless paper-pushing positions to keep the economy going. Chances are you shouldn't be getting any more money because you suck.
Copyright lawyers and relatives on the other hand do want copyright terms to be as long as possible, of course.
And copyright lawyers have exactly what interest in the length of the copyright? People getting money from royalties, annuities, or interest payments want them to continue as long as possible, absolutely.
I imagine you want your retirement fund to last as long as possible, as well. It's not up to you to decide what someone else does with his money, or whether he wants to spawn a generation of trust fund brats.
Wealthy assholes inheriting their wealthy assholeness to their kids, which in turn insist they have the right to earn money with doing nothing while everyone else is struggling to come up with the money for their lifestyle.
Ah. So the real problem is your own inferiority issue. Here's a free clue: royalty payments and copyrights don't make everyone wealthy, an asshole, or a wealthy asshole.
Plenty of people get screwed by employment with big media. Telling them that they can't get paid through whatever cost-recovery scheme they choose, however, is just you being an asshole.
If you don't like it, don't buy it. It's up to them how they want to make their money. Copyright was never intended to be anything less than the life of the author, but survivorship is an important issue in Western society, so the term has extended to ensure preservation of benefit. For 95% of the entitled, it's no more passing on "wealth" than your grandmother's old furniture--it's not worthless, but it's not your ticket to the Bahamas, either.
Daamage a $15,000 box and you bet your ass they'll sue you. There's no Streisand Effect to be concerned about if you bury a telecommunications box in a heap of compost and thus cause your entire neighborhood to lose Internet access.
If media attention is your goal, then perhaps the mission ought to be one of decorative painting. Make that a community effort. It's both proactive, turning the ugly green or grey boxes into situational art pieces, and attention-grabbing--the local news loves to highlight community projects like that. Put a kid at the front of the project and you're guaranteed air time.
It's a hell of a lot better than getting media attention for being a curmudgeon on the losing side of a lawsuit.
You can't charge rent on a government-granted easement. They will laugh and ignore you. Check your property deed. It's already in there. You paid a price reflecting the lot size less the loss of value of easements. If you didn't factor this into your negotiations, that's your fault.
The compost pile in your front yard probably violates covenants on your property, and it definitely violates the accessibility and maintenance clause for your utility easement. Same story with planting a tree too close to it, just as when the power company comes and destroys the trees that get too close to overhead lines.
Landscaping is your responsibility as the landowner, and since it sits on your property, you can't bill anyone for it, unless you also hire someone to do the work, and even there, you can't forward that bill to a third party.
Any defacing of the box also opens you up to criminal prosecution, not to mention violation of USPS regulations that will likely result in you receiving no mail in that mailbox.
The American Heritage Dictionary defines stealing as ``1. To take (the property of another) without right or permission.'' I believe this is a fairly good statement of the common understanding of stealing. As an intransitive verb, steal is defined as ``1. To commit theft.''
The American Heritage Dictionary (a poor choice, at that) lists several definitions for stealing. The point remains that theft is included in the definition of stealing, but they are not coterminous in the least. Even looking at a dictionary shows you this.
You still have the rights of copyright after I have infringed.
Infringement is the unlawful assertion of a copyright. It is a taking. That's what makes it unlawful in the first place. If you take a peach from a fruit stand, you still legally have the rights in that peach. That's what makes you prevail in an action for theft. You are making a poor argument and repeating it in a broken loop.
Furthermore, you still have the ability to exercise your rights.
Not against you, I don't, as you have taken it upon yourself to exercise my exclusive rights. Again, this is the entire wrong you have committed.
I have acquired nothing of yours, stolen nothing from you.
Your density is nothing short of amazing. The copy belongs to me. If it did not, I could not sue you for infringement. You have taken a copy, and you have asserted in doing so a right to copy.
Thus, you will sue me, not for stealing but for infringing your right.
In order for that conclusion to hold, we would need another assertion, namely that violating any property right is stealing.
No, we would merely need to refer to the definition of stealing, whose legal construction is nothing more or less than unauthorized acquisition. We can also refer to the applicable lay definitions: taking without legal right; dishonestly pass off as one's own; gain unexpectedly, surreptitiously, or through exploitation; appropriate without right or acknowledgement; or any of the dozens of others from the OED and elsewhere that apply.
When the police get here, they are going to have me up for trespass, not stealing or burglary.
Merely because the police cannot arrest anyone for stealing; it is not a crime. Trespass certainly is stealing, as it is an unlawful assertion of a right.
Historically, there were things I could do with your wife that would violate your rights in her. There it is impossible to argue that I have taken anything other than improper liberties.
Interesting that you would bring this up, since it actually contradicts your entire point: those historical rights are based in the marital property, which has for over a century (except in Louisiana) been an outmoded way of thinking. Historically, it would be a form of stealing. Today, it would be "improper liberty".
If I violate your right to exclude, perhaps by making an unauthorized copy, you still have your copyright.
I do not. That's the entire point of copyright infringement. Violation of that exclusive right cannot be undone--that copyright is forever diminished by your action, and there are damages even if you subsequently destroy all of those unauthorized copies, albeit significantly mitigated ones.
Not every violation of a right is stealing.
Indeed. Every violation of a property right wherein a right is unlawfully asserted as one's own, to the detriment of the rightsholder, however, is.
This is true even if I legitimately purchased the copy from you. Few other than the RIAA would say that I took anything from you when that copy was in the background on television.
On the contrary, what is taken is the guaranteed right of public display. The RIAA has nothing to do with it. You did not purchase the right to publicly display, so again you introduce an argument from ignorance (or at the very least, an imprecise and ham-fisted attempt to distract from the issue). Whether you bought a copy or not has zero relevance.
If one does not take something with intent to deprive the owner, one does not steal.
No. You are using the definition of theft and thereby creating the most threadbare of straw men. Theft is stealing, but stealing is not theft.
That's not a condition though. That's a set of circumstances in which redistribution is valid.
No, an affirmative act is not a "circumstance". A set of circumstances establishing scope would be something like "for non-commercial purposes". Anything that requires you to do something in order to achieve a right is not a grant, but an agreement.
A condition would imply that you would normally have a right to redistribute but the GPL is somehow adding something.
The GPL is adding something. The right to distribute is being granted in exchange for your contribution of resulting source code. A license grant cannot be predicated on an exchange or an act. That is a license agreement.
Hence this is a license, not a contract.
False dichotomy.
You're not accepting conditions, you have nothing to agree to
You must agree to the restriction that any right to distribute requires further action on your part. The entire GPL must be accepted by the receiving party at the onset, or it carries no weight at all. If the intent were to require acceptance of terms only for those wishing to distribute, those terms should be in a separate agreement. The GPL contains notices and disclaimers, along with a license grant and restrictions. It is a complete memorialization of a license agreement.
If I made a license that allowed you to redistribute main.c, but offered you no permissions to distribute library.c or functionality.c, it wouldn't be a "license agreement" because it somehow imposed the condition that you cannot distribute the latter.c files.
No, but if you including language that did grant distribution rights, but only if you agree to do something, then you have a license agreement.
You cannot then say that that term is "inactive" until used. If you are putting someone on notice and requiring them to act within those terms, you are introducing a license agreement. You must agree, from the onset, that if you prepare a derivative work and then choose to distribute it, that you will contribute the source code to the community. If you do not accept those terms, you simply cannot use the software.
Using the software and not distributing your derivative works is accepting the terms, contrary to how the GPL attempts to frame the issue. If you are acting consistent with the rights granted to you, without violating the restrictions, that is assent by performance, pure and simple.
You do need to receive something of value in return to satisfy consideration
The benefit of the bargain is what you hope to achieve as a result. Consideration is what you use to support your promise. They're on opposite sides of the agreement. The benefit of the Offeror may be the consideration from the Offeree, but in the case of software licenses this is rarely complete, and in the case of free software licenses is totally inadequate, as there is no consideration but a return promise.
The benefit of the bargain is not always, and in fact relatively rarely is the same as the consideration supporting the promise, even within a bilateral AwC. It is therefore an overly simplistic and inaccurate statement, and it is worthless in the vernacular as well, by which I expect you mean 'colloquial'--as there is no such thing as vernacular contract discussion using bastardized terms of art.
In law, consideration is always required.
No, it's not--there is rarely any such thing as "always" or "never" in law, contracts doubly so. It is "required" in AwC, which is but one form of contract. There are also judicially-recognized substitutes for consideration, even in AwC. Promissory estoppel is just one such example. Further, all consideration-based arguments and disputes fundamentally hinge on matters of equity, as courts of law are not empowered to rule on the adequacy of consideration, so the mention of a law/equity distinction (particularly no such bright line exists in most jurisdictions today) is nothing more than a poor red herring.
It could show evidence of indepent thinking, where votes are split on issues, not parties.
They are, 50 to 60% of the time, on average, where a representative disagrees with the party platform. However, here in the real world, collecting support for your own issues often requires supporting someone else's vote.
At the end of the day, those more aligned with group B are going to vote with them a majority of the time, and split from them in a portion of the areas where they disagree. Those more aligned with group A are going to vote with them a majority of the time.
That's ignoring all the measures with substantial bipartisan support. Any number of votes even just in the past year have been supported by a majority of Democrats and a minority of Republicans to achieve passage--while the remainder of both parties voted against it.
There is no diversity in the party as proven by the voting blocks, even against stated personal opinions on the matter.
Dead wrong. Party fidelity is approximately 80% in Congress. Party platform support is around 65-75% on average. More than half of the time, the representatives vote as they believe on the issues. The others are tactical votes or strongly wrangled by party leadership. That's what it means to participate in a voting block, whether it's a party, a coalition, or a classical bloc.
That's why straight party voting is so popular
Party voting is popular because it buys support from other members, not because there is a lack of diversity. You've clearly never even looked at the statistics, and you're out here, spewing from a sack of shit.
The spread of the votes could not possibly show anything else, so it proves nothing. The vote is up or down.
They vote as a block.
About 80% of the time, yes. When you factor in the party affiliation, which means they'd naturally vote with their party in excess of 50% of the time, the facts show that members of Congress vote along party lines, granting you wide deference, half of the time when their views conflict.
However, since the typical platform fidelity in Congress is approximately two-thirds, this means that representatives vote as "block-heads", realistically, about 30-40% of the times where they disagree with the party line. That's not a bad figure, all told. The representatives choose to do so for the sake of expediency, just as they would to curry favor in any other system.
One must strike a balance between principles and power. The success of issue and regional caucuses within the parties shows a lively debate and a great variety. The Blue Dogs and the Rinos are excellent examples of this. A California Republican could easily be "left" of an Alabama Democrat, and the regional politics in play reflect these preferences.
Breaking from your conscience in roughly 15% of your votes is just the reality of compromise.
And your complaints otherwise are invalid in the face of overwhelming facts proving you wrong.
That sounds nice, but given that you've supplied no facts, you must be living in some different reality.
I would beg to differ. Stealing (theft) is the taking of the property of another with the intent to deprive him of the value thereof.
You're wrong right off the bat. Stealing is not theft. Theft is the taking of property. Stealing is the act of unauthorized acquisition.
Copyright infringement does not take the property of another.
Yes, it does. It violates the exclusivity of the copyright. The right of property is the right to exclude.
In making these copies, you may cause the rights-holder to lose sales, and thereby injure him, but you are not taking his property.
Absolutely incorrect. The rightsholder's only property is the copyright. By making those copies, to use your example, you are asserting a copyright, which is the rightsholder's alone. You are taking his copyright as your own.
For that reason, we have separate laws barring copyright infringement and stealing.
There is no law against stealing. We have separate laws for any number of different forms of stealing. This sentence simply does not hold value. Larceny is not burglary is not infringement is not conversion is not embezzlement is not unjust enrichment. There are many different laws, all premised on the notion that what's yours is yours and no one else can interfere with it.
If you then downloaded from a RIAA machine, causing them to lose the material, you would be stealing because you would be taking their bits
And yet, they all vote in block almost all the time.
And who decides the votes? The party leadership. If you want different votes, you need the leadership to switch to a different coalition within the party. It doesn't matter whether you call them all Republicans or split them up into 9 different parties. At the end of the day, it's the chamber leadership calling the shots and determining how tight of a leash to use.
You've summed up why party politics is bad, not why the parties have diversity.
No, what he summed up is the reality of SMDM electoral systems and simple majority legislatures. Any system where members rely on each other to reach a majority and to attain key positions in committees and post-legislative appointments will have this flaw. Regardless of whether you have "party politics" (or any of the more-of-the-same alternatives), you will always see this effect in an attempt to curry favor. It's classic politics, but hardly confined to professional politicians. You see it in the office and even with children on the playground.
The parties aren't very diverse.
A flagrant lie, which you admit yourself by inviting the comparison between personal belief and party-line votes. Party discipline in the United States is relatively lax compared to the world stage (though the Republicans of recent history have operated a more British, strict-line operation, which is exactly what has kept them in power for most of our lifetimes).
And thus, the two parties are more divisive and uniform than you make them appear.
Only if you intentionally or ignorantly conflate the parties and their coalitions. Any proper student of history or politics would know better than to do so. Just as there is a Bush administration, formed of a particular coalition of Republicans very different from those in the Eisenhower administration, each Congressional leadership reinvents "the party" as well.
Only one can be in power at any given time. You can force them to come up with different names for themselves if you like, but to say they're uniform across time and membership is simply ludicrous.
There is a whole mess of a difference between copyright infringement and theft.
No, not really. The operative act is the same. They're different fields, but the same basic offense. The fact that you object to the characterization is a tried-and-true form of false pedanticism and ignorance unique to Slashdot.
If you are in possession of that which you are unauthorized to have, having obtained it through unlawful means, you're in possession of stolen property, unless you're making a specific legal argument about the cause of action. You're clearly not, though, because steal != theft under the law.
The fact that you make such a claim shows you've bought what the RIAA has been saying all this time.
Again, your Slashdot is showing. The RIAA didn't create the idea, nor did they invent the fundamental harm. You don't have to buy a single word they've said to know the simple fact that copyright infringement is and always has been stealing. It is the sole reason that infringement is a statutory offense with hefty penalties. Those penalties, however, were envisioned for a time and a market of large-scale, incredibly damaging piracy operations. Those operations still exist and must still be shut down. With the Internet, however, a second tier of statutory penalties is necessary to account for the individual, casual, peer to peer sharing that attracts attention. Individuals providing hundreds or thousands of files to thousands of users are clearly violating both the letter and the spirit of the law, as well as operating in a clearly contrary manner to the interests of artists. This is very much a different thing than making mixes for friends (which is allowed), or sharing a few songs from a new artist with a friend who might appreciate them.
One is civil and the other is criminal.
Actually, both copyright infringement and theft, along with other forms of stealing personal, intellectual, and real property have both civil and criminal components. Pursuing criminal copyright infringement claims against a relatively small-time customer, however, based on a shaky legal theory and insufficient evidence, is too stupid even for the RIAA members.
Considering their workload, budget, and constant abuse from ignorant citizens and journalists, they do indeed have a fantastic track record. Of the tens of thousands of items passing their desks each year, most people tend to fixate on the ten or so stupid moves that someone chooses to bitch about. It happens. It can't be perfect, and even if it could, it would cost more than anyone is willing to spend.
When Microsoft wanted to trademark their new graphical OS that dispays applications in windows (a concept created by another company) Windows, did the USPTO let them?
Did they have a choice? Microsoft doesn't have a trademark on the use of the term 'windows' (either generally or in the computer software field)--but instead a trademark on Microsoft Windows, a branded, shipping, commercially successful product.
Who the hell is gonna hear Cloud Computing and think Dell?
Plenty of people would, if they were granted a trademark on it. That's sort of the point. It's all about timing. Once something is a buzzword, you can't try to slap together a product and trademark the buzzword. It has to go the other way around to have any chance at all.
If Dell actually had a product called Cloud Computing, they could trademark it. Of course, cloud computing, being a different buzzword not referring to said hypothetical "Cloud Computing" product, could not be stopped effectively by Dell. The end result would be genericization, and LOV in the brand investment.
But seriously, why do companies think they can trademark phrases they didn't create?
Because that's what they choose to call their product. If no one else has a product using the word already, it's fair game. What's so obnoxious about that?
It's not like there becomes a total ban on the use of the word--competitors to Office can still talk about office suites. They just can't sell a product called Office, and in some cases, can't make any unauthorized references to the product called Office.
but (at least in the U.S.) contracts most definitely require consideration and the core definition of a consideration is that it is a "benefit" to the grantee.
No. You are relying on a boiled-down simplification of the law.
Consideration and benefit are two distinct concepts. Consideration is not benefit. The benefit of the bargain (the receipt of something valuable) is not consideration. Consideration may be payment, a return promise, forbearance from an act. Benefit is what the party receives from the contract.
Further consideration is not universally required. It is generally required, and there are a number of varying forms of contracts that do not require consideration, but rather any number of judicially-accepted substitutes for consideration, or particular contractual scenarios where consideration is not an element of the agreement.
It's called a license because that is the norm, as the license is the element of value that is being conveyed. The document and its terms, however, are a license agreement.
You can call it strawberry ice cream if you like. That doesn't change what it is. The document contains warranty terms, liability terms, a license grant (there's your license), and, tellingly, terms and conditions. It is a license agreement. It even talks about acceptance and use. A license is granted, not accepted. If you have to accept anything, it's not just a license.
EULAs are not contracts. That assertion has plenty of "backing".
Citation please.
Where's the consideration? Where's the meeting of the minds? Even if it's a contract of adhesion, where are the parties' rights in terms of "reasonable expectations?"
Agreement with consideration is just one of at least five judicially-recognized theories of contractual obligation, but since that's the wheelhouse you want to stay in, so be it. The consideration is a promise backed by money (or an exchange promise) versus delivery of a valuable product. There is no issue of a meeting of the minds, because the terms are laid out and assented to. It's not a case of mistake or misrepresentation, and even mentioning it is nothing more than a red herring.
As to "rights" with "reasonable expectations", your use of the terminology smacks of amateurism. The reasonable expectation in a software licensing arrangement are the nonexclusive use of the product, subject to the terms of the license chosen. In 2008 it is well past the point where the existence of license terms is a surprise. As long as consumer software has been available, they have included various terms designed to protect the interests of both parties.
The tool is wrongly maligned based on inappropriate uses. It's no better to make your attack than to question contracts in general because they are abused by some.
Quickly now, list the four criteria required to make an agreement "a contract" under US law.
"A contract" has two parts. Offer and acceptance. Anyone who attempts to break the elements of a contract down into a specific number of parts (beyond offer and acceptance) is acting on Cliff's notes at best. What constitutes an offer and acceptance varies based on the type of contract being considered and the specifics of the bargain.
I would imagine, however, that you are referring to agreement, consideration, intent, and some combination of capacity or memorialization, depending on where you live. The purpose of this exercise, though, is unknown.
Contracts require consideration, and that means that a contract must have benefits going to each party.
No. Consideration is not benefit.
a contract that grants benefits to one party, but not the other is considered to have been forced
No. A contract involving acts on one party may be unilateral or gratuitous, but being "forced" has nothing to do with whether the contract is a good deal for both parties. Voluntary entry into an agreement not requiring unlawful activity is not "forced".
I did not read the article, but it appears the court decided that this is not a contract issue as the lower court said
Then perhaps it would be best to refrain from speculation, since that is not what the opinion says at all. The operative language is "only for breach of contract", which is not the issue. The issue is the availability of copyright infringement as a cause of action, wherein the lower court erred in rejecting the theory.
I have no idea how this got modded insightful. It doesn't even make sense.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
Contracts have nothing to do with it. Copyright does indeed deal with reserved rights--the creator's rights. Any right not granted by copyright or by independent agreement is reserved by the owner. Copyright does not supersede contractual rights; indeed, the entire point of contract law is to create relationships outside of or contrary to statutory law.
A contract is not valid without consideration (e.g., "money changing hands"), but rights are reserved by default.
What does this even mean? Consideration is one way of validating a contract (but not the only way), and this has exactly nothing to do with reserved rights.
A license is a grant of rights. It is a promise not to sue. That's it. The GPL is not a license, because it says, "I promise not to sue IF you do x, y, and z"--that is a license agreement. It contains a license, but it too requires assent. Failure to provide that assent results in failure to attain the needed license, thus placing a person in a position of copyright inflation. The attempt to characterize it here as mere breach of contract is an attempt to limit potential judgments, as contractual damages are far less than statutory copyright damages.
It is not a binary situation. Finding copyright infringement does not preclude breach of contract, and in fact the two usually go hand in hand in licensing disputes. It is possible to infringe the copyright without breaching the contract, and it is also possible to breach the contract without committing copyright infringement.
It is not. It is a license that makes a limited grant of distribution rights, rights that would otherwise be fully reserved by default under copyright law.
You cannot impose terms and restrictions or require action through the use of a license; a license is a grant. If you are imposing terms, it's a license agreement, period. Whether you want to consider the affected party an end user or not is really immaterial.
The GPL is indeed a EULA in the broad sense that it is a distribution agreement from a content owner and its licensees. The term is based on a notion that everyone who is not the developer/owner or a merchant is an end user. The basic term is perhaps inadequate, but the idea of derivative developers vs. "end users" is an unimportant distinction. It is really at this point simply a straw man for false pedanticism, particular since the industry term is SLA, not EULA.
most EULAs are not contracts
An assertion without backing. A software license agreement is per se valid, and always has been. This case simply confirms it. Whether it's the Artistic License, the GPL, or a proprietary license, they are enforceable, less any unlawful provisions. No case has ever held otherwise.
I'm sure, but thanks in no small part to Hasbro's efforts, that arrangement has become the one that people want.
Once again, nobody plays the game because of the board layout.
So 'jokers wild' isn't a rule, because it isn't universal? Nonsense
No, because 'mandated' doesn't mean 'universal'.
That doesn't really relate to what you had objected to, viz. my saying that it was a factual issue whether or not the arrangement is a part of the rules.
Except that no legal standard ever advanced successfully would permit mere description to be elevated to the status of a rule.
The arrangement of the board's protectability is a matter of law, just as the headnote indicates, and just as all the case law indicates. The factual label is predetermined by its exclusion from every valid legal standard.
If they can show that a lot of their users customize the board to be Hasbro-compliant (rather than sticking with the defaults, or a random arrangement, or whatever) then that goes a long way toward demonstrating that players don't find the arrangement to be a source identifier, but rather a functional feature of the game which they wish to play.
No, it goes a long way toward indicating popularity and familiarity. The users making it resemble Scrabble more closely merely reinforces the value and commercial success of Scrabble itself.
Source identifiers aren't the question in gameboard copyrights, and even within the context of trademark protection, the further ripping off of the market pioneer provides no evidence that people find Scrabble to be generic--merely desirable.
I'm thinking mainly of the cases following Vuitton that the functional features of a product are the features that are the thing the customer wishes to purchase, rather than mere source indicators.
Yes, but considering that no one buys Scrabble because of the arrangement of its board, this doesn't get you anywhere. Indeed, if you're familiar with Vuitton, you see the inquiry (made by the court, by the way, not the jury) contemplates that "arbitrary fixation" you dismiss.
Yes, you're right of course. The court in Sega v. Accolade agrees with you: The question whether a product feature is functional is a question of fact. Oh, wait.
It must be frustrating to try so hard, yet miss the mark. Functional v. nonfunctional is a factual determination, but if you had continued reading even one sentence, you'd see that the inquiry is a question of law. The end determination of that legal question is then a found fact. Hell, if you'd even read as far as the West headnote, you'd see it neatly summarized as...wait for it...a question of law.
Just because a rule isn't written down formally, but is expressed by other means (such as standard placement on the game board) doesn't make it less of a rule.
If it's not mandated, it's not a rule. Tradition, popular preference, and customary placement do not a rule make. Period.
Moreover, note the new game launched to defuse the situation: the gameboard reproduction is now gone. They've read the case law, understood it better than you have, and see prospects too dim to pursue the matter.
Slashdot Mirror
How big is the hit?
Some things are worth a lot of money. I don't think any professional athlete is worth $20 million or more, but the market disagrees. If they work for five years at $5 million a year, they never need to work again if they manage their money well. Corporate executives, raking in $1-25 million each year in salary and bonuses could easily retire after a few years. Why should an artist, who spends two years crafting a sculpture from a $200,000 block of marble, or one who spends that time writing, composing, and recording an album, not be entitled to make a few million dollars from that endeavour, if that's the value the market places on it?
Their contribution can't be less valuable than the athlete or the executive.
So don't try to say that it's copyright that allows people to strike it rich and milk it forever--it's the market, and it would exist without copyright. Entertainment is big business. We build $300 million stadiums, finance dozens of $100 million movies, and spend billions on the people who make it all work. Just because you or I are not in a position to make millions in a couple years does not mean that no one should be allowed to, or that a system that preserves anyone's right to do so is somehow flawed.
If there's a flaw, it's the value that the market places on the products, irrespective of copyright. If the album were only worth $500,000, then the royalties wouldn't make anyone rich.
All these guys care about is to acquire rights to something, lock it away in a drawer and let it collect money for them. That's about the whole "business model" of the industry.
So? You're free to ignore them and choose alternate sources of entertainment. If you don't like the business model, support the ones you do. With the Internet and computers capable of producing near-studio quality tracks and albums, there is simply no excuse to the unfettered piracy of big media labels.
If it were truly 'crap' then there should be little to no interest in possessing it.
If you are not that talented and can't keep making better music than people trying to copy your stuff ... then you shouldn't get any more money because you suck.
Would you use the same argument against yourself? If you can't compete on cost with an outsourced worker, you shouldn't get any more money because you suck.
The simple reality is that we don't need a labor force anywhere near as large as we have--but people seem to be averse to supporting the indigent, so instead, we create bullshit office jobs and needless paper-pushing positions to keep the economy going. Chances are you shouldn't be getting any more money because you suck.
Copyright lawyers and relatives on the other hand do want copyright terms to be as long as possible, of course.
And copyright lawyers have exactly what interest in the length of the copyright? People getting money from royalties, annuities, or interest payments want them to continue as long as possible, absolutely.
I imagine you want your retirement fund to last as long as possible, as well. It's not up to you to decide what someone else does with his money, or whether he wants to spawn a generation of trust fund brats.
Wealthy assholes inheriting their wealthy assholeness to their kids, which in turn insist they have the right to earn money with doing nothing while everyone else is struggling to come up with the money for their lifestyle.
Ah. So the real problem is your own inferiority issue. Here's a free clue: royalty payments and copyrights don't make everyone wealthy, an asshole, or a wealthy asshole.
Plenty of people get screwed by employment with big media. Telling them that they can't get paid through whatever cost-recovery scheme they choose, however, is just you being an asshole.
If you don't like it, don't buy it. It's up to them how they want to make their money. Copyright was never intended to be anything less than the life of the author, but survivorship is an important issue in Western society, so the term has extended to ensure preservation of benefit. For 95% of the entitled, it's no more passing on "wealth" than your grandmother's old furniture--it's not worthless, but it's not your ticket to the Bahamas, either.
Daamage a $15,000 box and you bet your ass they'll sue you. There's no Streisand Effect to be concerned about if you bury a telecommunications box in a heap of compost and thus cause your entire neighborhood to lose Internet access.
If media attention is your goal, then perhaps the mission ought to be one of decorative painting. Make that a community effort. It's both proactive, turning the ugly green or grey boxes into situational art pieces, and attention-grabbing--the local news loves to highlight community projects like that. Put a kid at the front of the project and you're guaranteed air time.
It's a hell of a lot better than getting media attention for being a curmudgeon on the losing side of a lawsuit.
Not one of those choice is a legal option.
You can't charge rent on a government-granted easement. They will laugh and ignore you. Check your property deed. It's already in there. You paid a price reflecting the lot size less the loss of value of easements. If you didn't factor this into your negotiations, that's your fault.
The compost pile in your front yard probably violates covenants on your property, and it definitely violates the accessibility and maintenance clause for your utility easement. Same story with planting a tree too close to it, just as when the power company comes and destroys the trees that get too close to overhead lines.
Landscaping is your responsibility as the landowner, and since it sits on your property, you can't bill anyone for it, unless you also hire someone to do the work, and even there, you can't forward that bill to a third party.
Any defacing of the box also opens you up to criminal prosecution, not to mention violation of USPS regulations that will likely result in you receiving no mail in that mailbox.
The American Heritage Dictionary defines stealing as ``1. To take (the property of another) without right or permission.'' I believe this is a fairly good statement of the common understanding of stealing. As an intransitive verb, steal is defined as ``1. To commit theft.''
The American Heritage Dictionary (a poor choice, at that) lists several definitions for stealing. The point remains that theft is included in the definition of stealing, but they are not coterminous in the least. Even looking at a dictionary shows you this.
You still have the rights of copyright after I have infringed.
Infringement is the unlawful assertion of a copyright. It is a taking. That's what makes it unlawful in the first place. If you take a peach from a fruit stand, you still legally have the rights in that peach. That's what makes you prevail in an action for theft. You are making a poor argument and repeating it in a broken loop.
Furthermore, you still have the ability to exercise your rights.
Not against you, I don't, as you have taken it upon yourself to exercise my exclusive rights. Again, this is the entire wrong you have committed.
I have acquired nothing of yours, stolen nothing from you.
Your density is nothing short of amazing. The copy belongs to me. If it did not, I could not sue you for infringement. You have taken a copy, and you have asserted in doing so a right to copy.
Thus, you will sue me, not for stealing but for infringing your right.
You cannot sue for stealing! Period.
Your post is nonsense, not to mention self-contradictory.
Only to the uninformed.
you assert both that all exceptions to consideration are based in equity
No such assertion. Please read more carefully.
You can't have it both ways dude.
There aren't two ways about it, so there's no problem. Thanks for playing.
In order for that conclusion to hold, we would need another assertion, namely that violating any property right is stealing.
No, we would merely need to refer to the definition of stealing, whose legal construction is nothing more or less than unauthorized acquisition. We can also refer to the applicable lay definitions: taking without legal right; dishonestly pass off as one's own; gain unexpectedly, surreptitiously, or through exploitation; appropriate without right or acknowledgement; or any of the dozens of others from the OED and elsewhere that apply.
When the police get here, they are going to have me up for trespass, not stealing or burglary.
Merely because the police cannot arrest anyone for stealing; it is not a crime. Trespass certainly is stealing, as it is an unlawful assertion of a right.
Historically, there were things I could do with your wife that would violate your rights in her. There it is impossible to argue that I have taken anything other than improper liberties.
Interesting that you would bring this up, since it actually contradicts your entire point: those historical rights are based in the marital property, which has for over a century (except in Louisiana) been an outmoded way of thinking. Historically, it would be a form of stealing. Today, it would be "improper liberty".
If I violate your right to exclude, perhaps by making an unauthorized copy, you still have your copyright.
I do not. That's the entire point of copyright infringement. Violation of that exclusive right cannot be undone--that copyright is forever diminished by your action, and there are damages even if you subsequently destroy all of those unauthorized copies, albeit significantly mitigated ones.
Not every violation of a right is stealing.
Indeed. Every violation of a property right wherein a right is unlawfully asserted as one's own, to the detriment of the rightsholder, however, is.
This is true even if I legitimately purchased the copy from you. Few other than the RIAA would say that I took anything from you when that copy was in the background on television.
On the contrary, what is taken is the guaranteed right of public display. The RIAA has nothing to do with it. You did not purchase the right to publicly display, so again you introduce an argument from ignorance (or at the very least, an imprecise and ham-fisted attempt to distract from the issue). Whether you bought a copy or not has zero relevance.
If one does not take something with intent to deprive the owner, one does not steal.
No. You are using the definition of theft and thereby creating the most threadbare of straw men. Theft is stealing, but stealing is not theft.
That's not a condition though. That's a set of circumstances in which redistribution is valid.
No, an affirmative act is not a "circumstance". A set of circumstances establishing scope would be something like "for non-commercial purposes". Anything that requires you to do something in order to achieve a right is not a grant, but an agreement.
A condition would imply that you would normally have a right to redistribute but the GPL is somehow adding something.
The GPL is adding something. The right to distribute is being granted in exchange for your contribution of resulting source code. A license grant cannot be predicated on an exchange or an act. That is a license agreement.
Hence this is a license, not a contract.
False dichotomy.
You're not accepting conditions, you have nothing to agree to
You must agree to the restriction that any right to distribute requires further action on your part. The entire GPL must be accepted by the receiving party at the onset, or it carries no weight at all. If the intent were to require acceptance of terms only for those wishing to distribute, those terms should be in a separate agreement. The GPL contains notices and disclaimers, along with a license grant and restrictions. It is a complete memorialization of a license agreement.
If I made a license that allowed you to redistribute main.c, but offered you no permissions to distribute library.c or functionality.c, it wouldn't be a "license agreement" because it somehow imposed the condition that you cannot distribute the latter .c files.
No, but if you including language that did grant distribution rights, but only if you agree to do something, then you have a license agreement.
You cannot then say that that term is "inactive" until used. If you are putting someone on notice and requiring them to act within those terms, you are introducing a license agreement. You must agree, from the onset, that if you prepare a derivative work and then choose to distribute it, that you will contribute the source code to the community. If you do not accept those terms, you simply cannot use the software.
Using the software and not distributing your derivative works is accepting the terms, contrary to how the GPL attempts to frame the issue. If you are acting consistent with the rights granted to you, without violating the restrictions, that is assent by performance, pure and simple.
I've never heard "benefit" used as a term of art.
Then you've not looked very hard.
You do need to receive something of value in return to satisfy consideration
The benefit of the bargain is what you hope to achieve as a result. Consideration is what you use to support your promise. They're on opposite sides of the agreement. The benefit of the Offeror may be the consideration from the Offeree, but in the case of software licenses this is rarely complete, and in the case of free software licenses is totally inadequate, as there is no consideration but a return promise.
The benefit of the bargain is not always, and in fact relatively rarely is the same as the consideration supporting the promise, even within a bilateral AwC. It is therefore an overly simplistic and inaccurate statement, and it is worthless in the vernacular as well, by which I expect you mean 'colloquial'--as there is no such thing as vernacular contract discussion using bastardized terms of art.
In law, consideration is always required.
No, it's not--there is rarely any such thing as "always" or "never" in law, contracts doubly so. It is "required" in AwC, which is but one form of contract. There are also judicially-recognized substitutes for consideration, even in AwC. Promissory estoppel is just one such example. Further, all consideration-based arguments and disputes fundamentally hinge on matters of equity, as courts of law are not empowered to rule on the adequacy of consideration, so the mention of a law/equity distinction (particularly no such bright line exists in most jurisdictions today) is nothing more than a poor red herring.
It could show evidence of indepent thinking, where votes are split on issues, not parties.
They are, 50 to 60% of the time, on average, where a representative disagrees with the party platform. However, here in the real world, collecting support for your own issues often requires supporting someone else's vote.
At the end of the day, those more aligned with group B are going to vote with them a majority of the time, and split from them in a portion of the areas where they disagree. Those more aligned with group A are going to vote with them a majority of the time.
That's ignoring all the measures with substantial bipartisan support. Any number of votes even just in the past year have been supported by a majority of Democrats and a minority of Republicans to achieve passage--while the remainder of both parties voted against it.
There is no diversity in the party as proven by the voting blocks, even against stated personal opinions on the matter.
Dead wrong. Party fidelity is approximately 80% in Congress. Party platform support is around 65-75% on average. More than half of the time, the representatives vote as they believe on the issues. The others are tactical votes or strongly wrangled by party leadership. That's what it means to participate in a voting block, whether it's a party, a coalition, or a classical bloc.
That's why straight party voting is so popular
Party voting is popular because it buys support from other members, not because there is a lack of diversity. You've clearly never even looked at the statistics, and you're out here, spewing from a sack of shit.
The spread of the votes shows the opposite.
The spread of the votes could not possibly show anything else, so it proves nothing. The vote is up or down.
They vote as a block.
About 80% of the time, yes. When you factor in the party affiliation, which means they'd naturally vote with their party in excess of 50% of the time, the facts show that members of Congress vote along party lines, granting you wide deference, half of the time when their views conflict.
However, since the typical platform fidelity in Congress is approximately two-thirds, this means that representatives vote as "block-heads", realistically, about 30-40% of the times where they disagree with the party line. That's not a bad figure, all told. The representatives choose to do so for the sake of expediency, just as they would to curry favor in any other system.
One must strike a balance between principles and power. The success of issue and regional caucuses within the parties shows a lively debate and a great variety. The Blue Dogs and the Rinos are excellent examples of this. A California Republican could easily be "left" of an Alabama Democrat, and the regional politics in play reflect these preferences.
Breaking from your conscience in roughly 15% of your votes is just the reality of compromise.
And your complaints otherwise are invalid in the face of overwhelming facts proving you wrong.
That sounds nice, but given that you've supplied no facts, you must be living in some different reality.
I would beg to differ. Stealing (theft) is the taking of the property of another with the intent to deprive him of the value thereof.
You're wrong right off the bat. Stealing is not theft. Theft is the taking of property. Stealing is the act of unauthorized acquisition.
Copyright infringement does not take the property of another.
Yes, it does. It violates the exclusivity of the copyright. The right of property is the right to exclude.
In making these copies, you may cause the rights-holder to lose sales, and thereby injure him, but you are not taking his property.
Absolutely incorrect. The rightsholder's only property is the copyright. By making those copies, to use your example, you are asserting a copyright, which is the rightsholder's alone. You are taking his copyright as your own.
For that reason, we have separate laws barring copyright infringement and stealing.
There is no law against stealing. We have separate laws for any number of different forms of stealing. This sentence simply does not hold value. Larceny is not burglary is not infringement is not conversion is not embezzlement is not unjust enrichment. There are many different laws, all premised on the notion that what's yours is yours and no one else can interfere with it.
If you then downloaded from a RIAA machine, causing them to lose the material, you would be stealing because you would be taking their bits
Since no one can own bits, this is irrelevant.
And yet, they all vote in block almost all the time.
And who decides the votes? The party leadership. If you want different votes, you need the leadership to switch to a different coalition within the party. It doesn't matter whether you call them all Republicans or split them up into 9 different parties. At the end of the day, it's the chamber leadership calling the shots and determining how tight of a leash to use.
You've summed up why party politics is bad, not why the parties have diversity.
No, what he summed up is the reality of SMDM electoral systems and simple majority legislatures. Any system where members rely on each other to reach a majority and to attain key positions in committees and post-legislative appointments will have this flaw. Regardless of whether you have "party politics" (or any of the more-of-the-same alternatives), you will always see this effect in an attempt to curry favor. It's classic politics, but hardly confined to professional politicians. You see it in the office and even with children on the playground.
The parties aren't very diverse.
A flagrant lie, which you admit yourself by inviting the comparison between personal belief and party-line votes. Party discipline in the United States is relatively lax compared to the world stage (though the Republicans of recent history have operated a more British, strict-line operation, which is exactly what has kept them in power for most of our lifetimes).
And thus, the two parties are more divisive and uniform than you make them appear.
Only if you intentionally or ignorantly conflate the parties and their coalitions. Any proper student of history or politics would know better than to do so. Just as there is a Bush administration, formed of a particular coalition of Republicans very different from those in the Eisenhower administration, each Congressional leadership reinvents "the party" as well.
Only one can be in power at any given time. You can force them to come up with different names for themselves if you like, but to say they're uniform across time and membership is simply ludicrous.
There is a whole mess of a difference between copyright infringement and theft.
No, not really. The operative act is the same. They're different fields, but the same basic offense. The fact that you object to the characterization is a tried-and-true form of false pedanticism and ignorance unique to Slashdot.
If you are in possession of that which you are unauthorized to have, having obtained it through unlawful means, you're in possession of stolen property, unless you're making a specific legal argument about the cause of action. You're clearly not, though, because steal != theft under the law.
The fact that you make such a claim shows you've bought what the RIAA has been saying all this time.
Again, your Slashdot is showing. The RIAA didn't create the idea, nor did they invent the fundamental harm. You don't have to buy a single word they've said to know the simple fact that copyright infringement is and always has been stealing. It is the sole reason that infringement is a statutory offense with hefty penalties. Those penalties, however, were envisioned for a time and a market of large-scale, incredibly damaging piracy operations. Those operations still exist and must still be shut down. With the Internet, however, a second tier of statutory penalties is necessary to account for the individual, casual, peer to peer sharing that attracts attention. Individuals providing hundreds or thousands of files to thousands of users are clearly violating both the letter and the spirit of the law, as well as operating in a clearly contrary manner to the interests of artists. This is very much a different thing than making mixes for friends (which is allowed), or sharing a few songs from a new artist with a friend who might appreciate them.
One is civil and the other is criminal.
Actually, both copyright infringement and theft, along with other forms of stealing personal, intellectual, and real property have both civil and criminal components. Pursuing criminal copyright infringement claims against a relatively small-time customer, however, based on a shaky legal theory and insufficient evidence, is too stupid even for the RIAA members.
The USPTO has a fantastic trackrecord.
Considering their workload, budget, and constant abuse from ignorant citizens and journalists, they do indeed have a fantastic track record. Of the tens of thousands of items passing their desks each year, most people tend to fixate on the ten or so stupid moves that someone chooses to bitch about. It happens. It can't be perfect, and even if it could, it would cost more than anyone is willing to spend.
When Microsoft wanted to trademark their new graphical OS that dispays applications in windows (a concept created by another company) Windows, did the USPTO let them?
Did they have a choice? Microsoft doesn't have a trademark on the use of the term 'windows' (either generally or in the computer software field)--but instead a trademark on Microsoft Windows, a branded, shipping, commercially successful product.
Who the hell is gonna hear Cloud Computing and think Dell?
Plenty of people would, if they were granted a trademark on it. That's sort of the point. It's all about timing. Once something is a buzzword, you can't try to slap together a product and trademark the buzzword. It has to go the other way around to have any chance at all.
If Dell actually had a product called Cloud Computing, they could trademark it. Of course, cloud computing, being a different buzzword not referring to said hypothetical "Cloud Computing" product, could not be stopped effectively by Dell. The end result would be genericization, and LOV in the brand investment.
But seriously, why do companies think they can trademark phrases they didn't create?
Because that's what they choose to call their product. If no one else has a product using the word already, it's fair game. What's so obnoxious about that?
It's not like there becomes a total ban on the use of the word--competitors to Office can still talk about office suites. They just can't sell a product called Office, and in some cases, can't make any unauthorized references to the product called Office.
Microsoft didn't trademark the word 'office'.
but (at least in the U.S.) contracts most definitely require consideration and the core definition of a consideration is that it is a "benefit" to the grantee.
No. You are relying on a boiled-down simplification of the law.
Consideration and benefit are two distinct concepts. Consideration is not benefit. The benefit of the bargain (the receipt of something valuable) is not consideration. Consideration may be payment, a return promise, forbearance from an act. Benefit is what the party receives from the contract.
Further consideration is not universally required. It is generally required, and there are a number of varying forms of contracts that do not require consideration, but rather any number of judicially-accepted substitutes for consideration, or particular contractual scenarios where consideration is not an element of the agreement.
Yes, it absolutely does. It requires you to accept the condition that redistribution requires your act of contributing source code.
It requires you to accept those restrictions in order to exercise the full scope of the license.
It's called a license because that is the norm, as the license is the element of value that is being conveyed. The document and its terms, however, are a license agreement.
You can call it strawberry ice cream if you like. That doesn't change what it is. The document contains warranty terms, liability terms, a license grant (there's your license), and, tellingly, terms and conditions. It is a license agreement. It even talks about acceptance and use. A license is granted, not accepted. If you have to accept anything, it's not just a license.
EULAs are not contracts. That assertion has plenty of "backing".
Citation please.
Where's the consideration? Where's the meeting of the minds? Even if it's a contract of adhesion, where are the parties' rights in terms of "reasonable expectations?"
Agreement with consideration is just one of at least five judicially-recognized theories of contractual obligation, but since that's the wheelhouse you want to stay in, so be it. The consideration is a promise backed by money (or an exchange promise) versus delivery of a valuable product. There is no issue of a meeting of the minds, because the terms are laid out and assented to. It's not a case of mistake or misrepresentation, and even mentioning it is nothing more than a red herring.
As to "rights" with "reasonable expectations", your use of the terminology smacks of amateurism. The reasonable expectation in a software licensing arrangement are the nonexclusive use of the product, subject to the terms of the license chosen. In 2008 it is well past the point where the existence of license terms is a surprise. As long as consumer software has been available, they have included various terms designed to protect the interests of both parties.
The tool is wrongly maligned based on inappropriate uses. It's no better to make your attack than to question contracts in general because they are abused by some.
Quickly now, list the four criteria required to make an agreement "a contract" under US law.
"A contract" has two parts. Offer and acceptance. Anyone who attempts to break the elements of a contract down into a specific number of parts (beyond offer and acceptance) is acting on Cliff's notes at best. What constitutes an offer and acceptance varies based on the type of contract being considered and the specifics of the bargain.
I would imagine, however, that you are referring to agreement, consideration, intent, and some combination of capacity or memorialization, depending on where you live. The purpose of this exercise, though, is unknown.
Contracts require consideration, and that means that a contract must have benefits going to each party.
No. Consideration is not benefit.
a contract that grants benefits to one party, but not the other is considered to have been forced
No. A contract involving acts on one party may be unilateral or gratuitous, but being "forced" has nothing to do with whether the contract is a good deal for both parties. Voluntary entry into an agreement not requiring unlawful activity is not "forced".
I did not read the article, but it appears the court decided that this is not a contract issue as the lower court said
Then perhaps it would be best to refrain from speculation, since that is not what the opinion says at all. The operative language is "only for breach of contract", which is not the issue. The issue is the availability of copyright infringement as a cause of action, wherein the lower court erred in rejecting the theory.
Once again, it is not either/or.
I have no idea how this got modded insightful. It doesn't even make sense.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
Contracts have nothing to do with it. Copyright does indeed deal with reserved rights--the creator's rights. Any right not granted by copyright or by independent agreement is reserved by the owner. Copyright does not supersede contractual rights; indeed, the entire point of contract law is to create relationships outside of or contrary to statutory law.
A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.
What does this even mean? Consideration is one way of validating a contract (but not the only way), and this has exactly nothing to do with reserved rights.
A license is a grant of rights. It is a promise not to sue. That's it. The GPL is not a license, because it says, "I promise not to sue IF you do x, y, and z"--that is a license agreement. It contains a license, but it too requires assent. Failure to provide that assent results in failure to attain the needed license, thus placing a person in a position of copyright inflation. The attempt to characterize it here as mere breach of contract is an attempt to limit potential judgments, as contractual damages are far less than statutory copyright damages.
It is not a binary situation. Finding copyright infringement does not preclude breach of contract, and in fact the two usually go hand in hand in licensing disputes. It is possible to infringe the copyright without breaching the contract, and it is also possible to breach the contract without committing copyright infringement.
It is not. It is a license that makes a limited grant of distribution rights, rights that would otherwise be fully reserved by default under copyright law.
You cannot impose terms and restrictions or require action through the use of a license; a license is a grant. If you are imposing terms, it's a license agreement, period. Whether you want to consider the affected party an end user or not is really immaterial.
The GPL is indeed a EULA in the broad sense that it is a distribution agreement from a content owner and its licensees. The term is based on a notion that everyone who is not the developer/owner or a merchant is an end user. The basic term is perhaps inadequate, but the idea of derivative developers vs. "end users" is an unimportant distinction. It is really at this point simply a straw man for false pedanticism, particular since the industry term is SLA, not EULA.
most EULAs are not contracts
An assertion without backing. A software license agreement is per se valid, and always has been. This case simply confirms it. Whether it's the Artistic License, the GPL, or a proprietary license, they are enforceable, less any unlawful provisions. No case has ever held otherwise.
I'm sure, but thanks in no small part to Hasbro's efforts, that arrangement has become the one that people want.
Once again, nobody plays the game because of the board layout.
So 'jokers wild' isn't a rule, because it isn't universal? Nonsense
No, because 'mandated' doesn't mean 'universal'.
That doesn't really relate to what you had objected to, viz. my saying that it was a factual issue whether or not the arrangement is a part of the rules.
Except that no legal standard ever advanced successfully would permit mere description to be elevated to the status of a rule.
The arrangement of the board's protectability is a matter of law, just as the headnote indicates, and just as all the case law indicates. The factual label is predetermined by its exclusion from every valid legal standard.
If they can show that a lot of their users customize the board to be Hasbro-compliant (rather than sticking with the defaults, or a random arrangement, or whatever) then that goes a long way toward demonstrating that players don't find the arrangement to be a source identifier, but rather a functional feature of the game which they wish to play.
No, it goes a long way toward indicating popularity and familiarity. The users making it resemble Scrabble more closely merely reinforces the value and commercial success of Scrabble itself.
Source identifiers aren't the question in gameboard copyrights, and even within the context of trademark protection, the further ripping off of the market pioneer provides no evidence that people find Scrabble to be generic--merely desirable.
This has gone on quite long enough.
I'm thinking mainly of the cases following Vuitton that the functional features of a product are the features that are the thing the customer wishes to purchase, rather than mere source indicators.
Yes, but considering that no one buys Scrabble because of the arrangement of its board, this doesn't get you anywhere. Indeed, if you're familiar with Vuitton, you see the inquiry (made by the court, by the way, not the jury) contemplates that "arbitrary fixation" you dismiss.
Yes, you're right of course. The court in Sega v. Accolade agrees with you: The question whether a product feature is functional is a question of fact. Oh, wait.
It must be frustrating to try so hard, yet miss the mark. Functional v. nonfunctional is a factual determination, but if you had continued reading even one sentence, you'd see that the inquiry is a question of law. The end determination of that legal question is then a found fact. Hell, if you'd even read as far as the West headnote, you'd see it neatly summarized as...wait for it...a question of law.
Just because a rule isn't written down formally, but is expressed by other means (such as standard placement on the game board) doesn't make it less of a rule.
If it's not mandated, it's not a rule. Tradition, popular preference, and customary placement do not a rule make. Period.
Moreover, note the new game launched to defuse the situation: the gameboard reproduction is now gone. They've read the case law, understood it better than you have, and see prospects too dim to pursue the matter.