Correct me if I'm wrong, but in filesharing cases, they're usually statutory damages, not punitive, no?
Well, correction.
Both copyright damages and these spam damages are statutory damages (i.e. specified by statute, as opposed to discretionary), and both are intended to have punitive value (i.e. you will only enforce the claim against a tiny minority of offenders and therefore it's the risk and cost of being caught that has deterrent value). Neither are punitive damages (i.e. additional damages beyond what is restitutionary or compensatory owing to specific misconduct by the defendant).
The GP's point is spot on for many people here (though there are also many who have no problem with the penalties and enforcement structure, and instead have issues [some legitimate; many not] with the substantive laws that give way to the penalties in the first place).
Hell, they still are. A BSD-licensed work that's rolled into a proprietary one isn't hurt just as you say -- unless the original project folds and the only remaining copies of the code are in the proprietary project.
Well, the original project A still wouldn't be hurt, because it faded on its own merits. If the code still existed in a proprietary project B, B wouldn't have any responsibility with project A.
That same scenario happens now when a forked GPL project folds after the fork, if all the developers vanish, then all changes in fork 1 are lost insofar as they were not in existence at the time of fork 2's creation. Fork 2 has no obligation to keep copies of fork 1 just for posterity's sake, should fork 1 collapse.
The whole idea that you can't have freedom by limiting freedom is just silly. If you don't limit my right to kill you for what you say, then you can't have free speech.
It's not silly at all. Limited freedom is an essential element of any civilized society. Peace and order prevail over freedom for exactly the reason you and I have illustrated.
Is liability for defamatory speech a less free version of free speech? Absolutely. Is there anything "wrong" with that? No. Maximizing "fairness" or fundamental, democratic access is inherently less than free.
Freedom in the modern Western sense means precisely maximizing the freedom of all the commoners.
No, freedom still means freedom. Modern Western civilization simply takes a different balance of freedom, fairness, and rule of order.
The GPL does the same thing, emphasizing fairness and democratic access over freedom. It's disingenuous to call a system of restraint a "different kind of freedom"--it's simply not. More restraints = less free. For once, life really is that simple.
A regulated free market is less free than an unregulated free market. The regulated market is more fair, it's probably more openly accessible, and it's better for society overall. But it is not more free or even as free as an unregulated one.
The problem between BSD and GPL tends to be that GPL folks take BSD code and make it GPL-only. This exercises a freedom the BSD folk say they cherish, but it irks them that they lose another freedom.
It doesn't irk anyone. The BSD license inevitably contemplates forks being made into GPL projects. There's nothing improper about that.
That freedom is to take new changes back into the core project.
No such "freedom" or expectancy exists under the BSD license.
No, he doesn't. He says the idea of "natural property" is bullshit, because it is, and people who consider patents a natural right when real property is a social construct are overstating their case.
"But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance."
In fact, he specifically says that if such a system is society's will, then it is entirely proper. "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody" (emphasis added)
This same Jefferson, of course, also said:
an inventor ought to be allowed a right to the benefit of his invention for some certain time
He went on to found the Patent Office as Secretary of State and is one of the key figures in the development of patent requirements and practice, specifically because of his particular reservations. Jefferson became a strong proponent of the US patent system.
Ways like putting your own name on it instead of the original developer's. The BSD license doesn't allow that, therefore it's not free either.
Attribution is not use.
You could theoretically have a license without notice or attribution requirements, but none exist for general public use because there would be no notice to the user of rights or copyright status. This leaves BSD/MIT to set the curve on imposition of limitations.
To have absolute freedom, you must release code into the public domain. Almost no one is willing to do that. BSD/MIT are the closest to a public domain release.
Hey, if you're in the Seattle area, would you be willing to take on a legal clerk seeking to eventually take the bar?
I'm not, actually, though I do love the Pacific Northwest. I'd be of little use anyway, as I have no involvement with the firm's recruiting committee, and no one but equity partners have independent hiring power.
What you'll find if you want to go the route of apprenticeship is that you'll need to locate a small firm, not a solo practitioner and not a medium or large firm. Even most "small" firms will likely be too large. The reason is that the personal supervision requirements are onerous for a solo practitioner. I'm not sure what Washington's requirements are, but usually it's 4-5 hours a week direct tutelage. A one-attorney practice won't have that kind of spare time, and a firm with more than 5 or 6 attorneys won't likely be in a position to provide the necessary personal attention.
The most practical advice I can offer is to look for someone winding down his or her career, who might be transitioning to working part time, as they will have the experience to teach well and the time to take on an apprentice.
I'd also be remiss if I didn't mention the fact that most people who self study do not pass the Bar exam, and that if you hope to work in the IP field, law school pedigree is extremely important to clients both big and small, individual and corporate. The indie clients want to know that someone with real assets places stock in your abilities, and in order to have represented those clients, they'll want to see academic achievement, at least until you build a reputation. I do know of one self-studied attorney, but he had a 20-year career as a police officer before practicing criminal law. So it is possible if you're particularly motivated, but it will not be easy, even relative to the profession in general.
Not to push another GPL-vs.-BSDL flamewar, but history shows that this level of restriction is prudent and protects the freedom of developers at later levels of redistribution
No, it doesn't. You're presuming an entitlement that does not exist. Developers at later levels of distribution have all the same freedom to that original code that they would otherwise have. They may or may not have rights to the work of third parties, but the existence of that third-party code is not guaranteed.
If Microsoft takes BSD code and makes a closed source derivative, your "later level developer" hasn't lost anything. Microsoft didn't have to create that derivation, and quite possibly would not have done so if not for the free use of the BSD code. The developer is no worse off with regard to that code.
Microsoft and Apple have taken BSD licensed code and turned it into proprietary software, which restricts the freedom of developers who receive copies of the BSD licensed code from Microsoft or Apple.
It doesn't. Developers who receive BSD licensed code still have full access to that BSD licensed code. Recipients of the proprietary derivative get the full use of that software. Without the freedom to close the code, the software product in question might not have existed at all; there's certainly nothing lost with regard to the parent code.
You are making the RIAA "lost album sales" argument, just with code, which you have rejected in that context. The fact that a copy of project A (BSD) appears in project B (closed) does not mean that developers of project A have lost anything.
The only people who really see more freedom from BSD licensing are people who want the freedom to restrict the freedom of others; how exactly does the BSD license benefit freedom in that case?
"Freedom" necessarily requires that people have the power to make choices you don't approve of.
The presence of restrictions means that there is not freedom. You can say that a few, careful restrictions on freedom is in everyone's best interests (the GPL does exactly this), and you might be right, but it's still a restriction on freedom--you are controlling the choice of others, just in a different way.
"Here is some code; do whatever you want with it" is freedom. That means selling it, compiling it in binaries and not releasing the source, inserting emoticons all over it, and whatever else you can imagine. "Here is some code; do whatever you want, except you can't distribute it without releasing the source code" is not freedom. It's maximized access, but constrained choice. The term "libre" refers to freedom of choice.
If democracy of access is your benchmark, you're not talking libre, you're talking demos. By that metric, GPL wins out over BSD, but it's not freedom you're advancing, it's order and justice--the classic contrast between individual and societal, American "life, liberty, and the pursuit of happiness" and Commonwealth "peace, order, and good government".
The very fact that you talk about restrictions to ensure fairness for everyone forecloses the possibility of freedom, because freedom is distinctly unfair.
I do not see how you could call this "monomaniacal fidelity"... as you have been educating me this whole time, I've dropped numerous misconceptions left and right... That I'm boneheaded enough that you have to explain it multiple times, or in different ways is this any different from any person learning? I don't think so. No one learns perfectly from mistaken to correct in one step.
It wasn't meant as a slight in the least, but simply as an observation of how your dedication to the model, by attempting to work my comments into it, was hampering your understanding.
I'm glad that you have been able to learn, and to engage in a discussion without a loss of composure.
Basically, that vesting of copyright interest is applied well before the work is created, rather than after the work is created. That would be the missing piece I was missing all along.
Almost. You're effectively correct, but since we're being pedantic, it's the authorship status that is established before the work is created. (A copyright interest may only vest in a work that has been fixed, and fixation necessarily occurs after creation.) The legal author is the party in whom copyright ultimately vests (once the work itself reaches a point where it satisfies the requisite elements for copyright protection), absent particular agreements and loopholes changing that party. "Authorship" in the context of copyright is the person responsible for causing the work to be created (in other words, the source of the "creative spark"). The labor of execution itself, as you already know, is distinct from the impetus of creation (even artists themselves often delegate to assistants performing a significant portion of the labor).
So sequentially, it's authorship [idea] > creation [expression] > fixation [completion] > vesting of copyright > (optional transfer or assignment of copyright) > exercise of exclusive rights > (termination of assignment) > ceding to public domain.
I think your model's premise is based on probability more than presumption, which is what I didn't initially see, or I might have been able to clarify this sooner.
These misunderstandings should be a natural expectation to occur in the situation where Slashdot posts a story by a layperson opining about UK law, and commentors discussing it as if it were US law.
Oh, misunderstandings abound in every Slashdot story about legal issues, particularly hot-button issues like copyright and patent. The signal to noise ratio around here is hopeless.
Ok, to bring things back together. The proper way to think about the "pseudo-code" for this matter would be:
No, it absolutely is not.
As a personal matter, I cannot pedantically accept this as not having a "default state". There is one condition, and a "catch all" condition that applies for all other cases.
Then your false pedanticism interferes with your understanding of the issues.
Perhaps I have gotten ahead of myself and missed an explanatory step: vesting is the process of creating a copyright. There is no presumption of a default state or catch all from which a work for hire is a deviation. You cannot have a presumption that a party has a copyright interest prior to the vesting of a copyright, which is exactly what your pseudo-code does. The question of the identity of the author is one that occurs before the creation of the work, not after.
Next in the elementary process, a presumption is "A legal inference that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption." (Black's, 8th.)
Thus, in any given dispute between a customer and an {artist|writer|sculptor|photographer|programmer}, it is the fact of the agreement's existence that establishes the first legal presumption. The "known or proven" fact will be the nature of the agreement: a purchase of an existing work or the creation of an entirely new work. The first presumptions (in your terms, the "default states") arise at that time and at that time only.
The purchase of an existing work from the creator-artist establishes an inference (but not technically a presumption...) that copyright vested in the creator-artist. (It is not a true presumption because in this situation, the creator-artist still has an affirmative burden to show copyright ownership before obtaining relief, and thus it is not formally presumed that he is the copyright owner.)
The agreement to create a new work for the customer establishes a presumption that copyright vested in that customer. The customer will have to assert that she still owns the copyright (but the creator-artist will have the negative burden to prove that that is not the case, so this does not defeat the presumption).
Thus, the "default state" for copyright ownership depends on whether the agreement occurred prior or subsequent to the work's actual creation. There is no universal "default state" or catch-all; this is a threshold (i.e. first step) issue.
In simpler terms, forget your "pseudo-code" entirely. It's just wrong. You can assume statistically that in the simplest cases, the artist is usually the author and the copyright holder, but you cannot functionally, technically, or legally presume that that is the case. (Just as, for instance, you can have a CSS/JS element with a default state of 'display:none;' even though it's actually made to be visible 90% of the time.)
Thus, for the patron, regardless of if a "work for hire" argument would succeed in court, it is still in their best interest to include such language in the contract.
Yes, as my original comment expressly states.
Basically, as my sig used to say, I'm a pedantic bitch... I like to ensure that everything is covered as precisely as possible.
Then you should not insist on monomaniacal fidelity to a self-created model that contradicts reality, both technical and legal. As I said, it's not an illogical model, it's just not the one that actually exists.
That the patron hired the artist for the work establishes a reasonable assumption that the work is a work for hire. However, this still skips a few steps of legal "process" as I would see it.
Then we must work to address your perception of the process.
Copyright is vested in the author. But the author is not necessarily the creator. The fundamental threshold question is, "who caused this work to come into existence?" The answer to that is either (a) the artist/creator or (b) a commissioning patron. There are no earlier steps to this process.
If it's (a), then copyright presumably vests in the artist/creator (barring subsequent agreement or assignment to the contrary).
If it's (b), then copyright presumably vests in the commissioner/patron (barring specific negotiation and conduct as an independent contractor without mutual consent on WFH status).
In the same way, my pedantic mind is approaching matters similarly. Breaking it down into kind of pseudo-code, I would establish:
var work = artist makes a copyrightable work var work->author = artist
if (work is for hire) work->author = patron
work->copyright owner = work->author
Your interpretation simply does not reflect reality. You have described a transfer by substitution in your pseudo-code. By setting the "author" variable to artist at all, you are asserting a vested interest in the artist where none exists, technically or legally.
Still establishes a default, because there is a generic state, and an exceptional state.
No. There are two generic states, each with independent exceptional states. The essential question of copyright ownership begins with the party of legal authorship. There is no default presumption as you describe it.
I don't care how much you want to argue about this, for the very reason that not all works have patrons declares that "work for hire" must be an exceptional situation legally
There's nothing to argue; this is settled law both statutorily (section 201) and in case law (see e.g. CCNV v. Reid (1989), 430 US 790).
All works have authors. The only default presumption that applies here is that the legal author is presumably the owner of the copyright. If the author is the creator, the default state is copyright vesting in the artist. If the author is the patron, the default presumption is that copyright vested in the patron.
Be aware that by stating that you hired someone to do the work is an assertion of fact. It is an easily provable one, and thus rarely challenged.
On the contrary, it is often a hotly contested issue, but this statement is of no particular significance in this discussion.
Again, as stated before, even though the technical details of the law are glossed over, likely even in court, it does not mean that a case cannot arise where this detail becomes a issue.
As you will see as you begin to read the law in this area, the technical details are essentially the only ones discussed in court. The "technical detail" you describe, however, is a purely fictitious construct you have created for yourself.
It's not an illogical construct; we could easily have created a system that vested all copyrights in the artist and simply mechanically transferred them without any formalities to commissioning patrons, creating the default state you describe. The fact is that we did not create such a system for several reasons, not the least of which would be its unconstitutionality.
The US being a signatory of the Berne Convention was required to have "moral rights", but declined to actually create them, because they held that the rights that "moral rights" would afford already exist through alternate mechanisms.
Not entirely. As history clearly illustrates, most of the set of Moral Rights di
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner.
Agh. That didn't come out right. It should read as follows:
The default owner of the copyrights is the creator. When the creation is done by the will of the artist, the creator is the artist. When the artist is hired by a patron, the patron is the creator as a matter of law (and the artist merely an agent of the creator).
In other words, as said in my earlier comment, there is no presumption that the artist is the creator when the work is a commissioned one; the presumption is that the commissioner is the creator.
E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case
Premise E is a matter of law determined by the judge, but yes, essentially that would be true, ignoring for a moment the huge gulf between premises D and E.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner. There is no transfer--copyright is vested in the patron.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire.
No. A commissioned work is presumptively a work for hire. The artist must demonstrate that he is not an employee, and that as an independent contractor, the work is ineligible for application of the work for hire doctrine.
You are conflating presumption and burden.
What this typical practice means, is that if a lawyer is handed this case to work on, his first assumption could be that it was done as you've stated, however that is not the legal default... simply the most common.
Incorrect. A work for hire is not a case of transfer of ownership; it is a case of original ownership vesting in the hiring party, as the traditional patron model holds. For example, when a sculpture is commissioned and it is damaged by a third party during construction, the commissioning party is the only one with standing to bring suit.
"Moral Rights" in the US is covered under such things as libel and slander. While I have nothing named "moral rights" to the code I wrote while at Microsoft, I still have the right to say that I wrote said code.
No. Moral rights are covered solely under section 106(A). Libel and slander also have nothing to do with attribution rights barring some exceptional additional facts. False attribution would be redressed in a civil fraud action.
Ah, but there is also another case, where the work is produced without use of associated works. Carving a statue from a medium, or producing a software program in a non-compiled scripting language is such that by transferring the finished work the agent has no "additional works" to negotiate for.
if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
Express consent by the parties is required only of independent contractors, not of employees. If the work ordinarily qualifies as a work for hire (as e.g. a contribution to a joint authorship), then as the expected business practice, that weighs heavily in the direction of "employee".
still hold that it would be stupid of the programmer not to be aware of his legal rights
Absolutely.
and the default presumption that the work is his
There is no such presumption. In fact, common practice weighs the opposite direction for most programmers hired to create a new work. The only time there is a default presumption that the programmer retains all rights is if s/he creates it of his own initiative.
When a work is specially commissioned, the historical and typical practice is that the commissioner buys the work, lock, stock, and barrel. This is true of all copyrightable works, including software. The buyer who commissions a work buys the work on the theory that the artist is but a tool, a means to an end for the commissioner; the artist/creator who sells copies of his existing works sells just the copies on the theory that the artist has not sold his own creation itself. These can be reversed (you can persuade Microsoft to develop Word and buy just a licensed copy and someone else can come along later buy the complete copyright to Microsoft Word), but must be reversed deliberately.
Artists failing to negotiate persistent rights to preserve the integrity of their commissioned works was a major issue, culminating in VARA two decades ago, but the final version of VARA applied to a small minority of sculptural and architectural works only. There are no moral rights to software under US law.
It's the artist/author/programmer who needs to ensure that any rights he wishes to retain are specifically negotiated and explicitly contracted (and that if he is relying on independent contractor status, that he ensure his conduct clearly separates him from an employee), otherwise it is presumed that the commissioner wholly owns the work she commissioned.
and the necessity of stating in clear explicit language that they will obtain the rights to the code).
Rights to the source code are independent to copyright ownership of the compiled machine code. While it's important that customers, whether employers, putative employers, or parties to a contract make a clear agreement regarding the source code, that's a totally separate provision in licensing and conveyance contracts.
A contract that did not specify source code rights would generally not have them. The programmer would retain his copyright on the source as the sculptor would retain his molds and the painter his sketches, unless the customer specifically negotiated for the conveyance of all associated works. If the programmer were to compile that code again unmodified, though, he would be infringing on the customer's copyright, just as the sculptor would be infringing if he used the molds to make an essentially identical or clearly derivative copy of the commissioned sculpture.
GP broadly misstates the work for hire doctrine, but so do you--just in the opposite direction.
If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.
Not so. Written agreement by both parties in a valid contract can establish the work as a work for hire copyright so long as it is commissioned for a collective work. 17 USC 101.
If your customer provides a copyrightable data set or is integrating your software product with any other copyrightable work, they have a collective work claim, and coupled with contract language stating that it is a work for hire, it will usually be so.
For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights
This is true, if the programmer is an independent entity and is contracting for work with a third party. Stating that you are an independent contractor does not make it so, however, as many "contractors" are in fact employees for the purposes of the Copyright Act.
In order to be considered an independent contractor for copyright (and agency purposes in general), you must demonstrate that the putative employer does not maintain any substantial control over the work or over the programmer, and that the programmer's does not comport himself in a manner that would lead others to believe he was an agent of the employer. In modern programming relationships, this has grown increasingly difficult, given the increased input and meetings with the customer, along with their increased executive authority over project direction.
Assuming you did accept a simple commission and are deemed not an employee-agent, the product will not be considered a work for hire only if it is not part of a collective work. The collective work need not be entirely software to qualify, so programmers are rarely off the hook on that basis alone. The parties in this case must agree that the product is a work for hire, as required to fulfill the definition of 17 USC 101 under paragraph 2 of the "work for hire" definition.
What this means in practice is that all contracts should specify, in the positive or negative, the work for hire status to minimize disputes later on. Good attorneys can move the work for hire line a fair distance both ways because the concept of agency is fairly nebulous and the degree of customer control exercised necessary can vary wildly from case to case.
If the customer explicitly agreed that it was not a work for hire, particularly a sophisticated customer, it probably won't be found one later. If the contract explicitly states that it is a work for hire, it is a virtual certainty that federal judges will make it so by the end of the trial, and usually will do so without so much as breaking a sweat.
Actually, you're both right. "Moot" is a frustrating word in English, because like 'sanction', it has contradictory meanings.
Moot does mean 'debatable', but it also means 'insignificant', 'meaningless', or 'irrelevant'. In the applicable context here, a statement regarding legal issues, it also means 'nonreal' (a moot issue is one in which there is no longer (or never was/will be) an actionable, real legal controversy).
GP's point and usage is correct. Even the most basic and elementary contract in this field will establish ownership rights. Generally, this allocation is the reason for the contract in the first place, apart from memorializing the payment agreement.
Seriously, "The plus sign inside might be suboptimal" is a perfect example of jumping through hoops to rationalize incredibly bad design. A plus sign ALWAYS means ADD.
The symbol shows what the button, in general, does. It's no more or less intuitive than the Windows buttons, really, which have to convey operations in a tight space. How does a square indicate maximize? It doesn't make any sense until you understand what the button does.
It also is not "Zoom to Fit", as pressing it once MIGHT make the contents fit, but pressing the "Zoom to Fit" again, has the reverse effect, and thus could not be called "Zoom To Fit" by any rational English speaker.
And again, this is identical behavior to Windows. Click once for maximize. Click maximize again, and it shrinks. If your window started maximized, clicking "maximize" the first time will make the window shrink.
The behaviour is definitly application specific, and totally inconsistant for an OS widget.
Of course it is. Applications are set to be different sizes by the developer as the "fit" size. The zoom button toggles between the developer-specified fit size and the user specified size.
Clicking it one time will enlarge, clicking it again will reduce, unless it started out "large" in which case the odd/even toggle will be reversed. The button behavior is identical to that of Windows. The difference is that Windows specifies full-screen as the toggle state, and OS X specifies the application's preferred window size as the toggle state.
An icon of a single window if it will fill the screen, and an icon of two windows if it will not, indicating that you can see more than one window. Go check it out for yourself.
Except that a user has no way of knowing that's what the symbols mean. One is a square, and one is two squares. The relationship is certainly not obvious unless you already know what the button does.
Red means stop. This existed LONG before OSX. Expecting users to magically know which applications are 'simple' applications that will close, and which are complex applications and will continue to run without a UI is, again, counter intuitive.
Says who? The button is attached to the window. "Stopping" the window should stop that window. It doesn't make sense to stop other windows. The application has a menubar. If you want to stop the application, do it there.
Users don't have to know the difference. They can quit all applications the same way: cmd-Q or Application>Quit. They can close windows the same way: click the close button on the window. There's nothing counterintuitive about that.
On the other hand, the number of people complaining that "Word disappeared" because they clicked the wrong "X" in Windows is high. They were done with the document.
Also, your "Application-Level" UI control, has an entry to close the window. This is directly contrary to the Application/Window paradigm that you are claiming exists.
This is totally nonsensical. Of course application-level controls have these options. Windows are spawned from the application.
In this so called "Application-Level" UI element, they call the action "Close". It doesn't say "Stop" the window. It says "Close" This is because the metaphore they are going for is in fact "Closing" a window. Thus, a red button would be totally counter intuitive, and would in fact confuse anyone who was raised in a place where red means "Stop".
I think you might want to spend some time considering the definition of counterintuitive, and possibly your fixation on what colors "mean". Red lights also mean "record", "do not enter", "power on", "standby", "error", and countless other meanings depending on context. Red does not mean "stop".
That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion).
No, it's a minimum award of $750 and a maximum of $30,000, assuming no willful infringement.
Statutory damages are per work, not per copy.
Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?
Complete non-sequitur. Is a $30,000 penalty for a corporation misusing someone else's property too high? Of course not. Is the same penalty too high for a kid who is pirating music for his iPod? Almost certainly.
Well, not sure where to start. Well first of all now you silently seem to concede that legibility and fidelity are at odds in certain situations
"Now" as opposed to when?
That is not what I said. I said the primary goal is encoding text; I never said it's the only goal. This multi-faceted character was the whole point of the comparison with images.
The comparison, or more accurately, the contrast you propose, is faulty. Images sometimes encode visual information just as typefaces sometimes encode textual information. Both, however, are primarily artistic works, not utilitarian tools.
The utilitarian treatment of typography by the technically-minded is exactly what I'm talking about.
I'll add that it's a given that we're talking about fonts^Wtypefaces that are designed for either lengthy texts or something similar that's fairly specific to computer interfaces
Except that it's not. Typefaces that are designed for lengthy texts or computer interfaces are a tiny minority of the typefaces in existence--less than 1% of them, in fact.
The point I'm making here is that your backwards view of the art and science of typography is emblematic of the greater problem of the state of typefaces and their presentation in Linux, and the general refusal to bring in actual experts in the field or address the obvious aesthetic shortcomings in KDE and Gnome. I happen to think both Microsoft and Apple do an excellent job and that Linux's biggest distinguishing character in the "desktop wars" is its woefully inferior typography.
I'll say again, people have designed exquisite typefaces for text on print media. Others have done the same for screen presentation. Most typefaces are not meant to produce razor-sharp text at impossible tiny sizes on computer screens. Forcing them to is like having your file browser artificially sharpen soft-focus photos when it detects them, whether it's what the photographer wanted or not.
The primary goal of a typeface is to express the creator's technical and aesthetic vision. The font renderer's only function is to present that vision, just like any other rendering engine. It's not to create highly legible on screen characters at screen resolution for every typeface; it's not to destroy the creation to make the typeface suitable for encoding long texts.
If the user desires to read long texts on a low resolution screen, s/he should rely on typefaces designed for that purpose. The font renderer should not make assumptions about the purpose or intent of all uses, just as the graphics layer should not assume that all photos should be processed for maximum clinical accuracy. If you want to use the photograph as a diagram, take a suitable photograph. The artistically composed shot shouldn't be straightened, contrast tweaked, and sharpened by the rendering system when it wasn't asked to do so.
If you've got problems with a blurry font, you're either using the wrong size for the resolution or the wrong typeface entirely. The change to be made in that case, though, is by the user, not by the renderer. If you don't care about accuracy, then you certainly can't care about the identity of the typeface.
The green button is a "zoom to fit" button. The plus sign inside might be suboptimal, but there are no "fiery logic hoops" involved. If the window is larger than the "fit" size, it shrinks. The button's behavior is quite consistent--the destination is always the same. Different starting points just lead to different paths.
The plus sign on hover might be suboptimal, but I don't think there's a simple symbol for "zoom to fit"--and zoom is generally regarded intuitively as zooming in. I doubt most people associate the mouseover symbol with the button function, though, given the strong associations people have with color.
For what it's worth, when you click the maximize button on Windows on a window that is already maximizes, it too shrinks back--the button symbol doesn't reflect this, either. I can't really see a meaningful difference.
This may be a petty complaint on my part, but if I click the red X, I expect the application to stop
If I click the close button on a window, I expect the window to close. I do not expect that command to be passed upstream or laterally to other windows. Application-level control is performed at the application-level interface: the menu bar. As a shortcut, some simple apps automatically close when the last document does because the application can't do anything without windows open.
If I have no windows open for a given application, I do not expect that application to be considered to be "running".
And I wouldn't expect that closing desktop windows would terminate an application that continues to work in the background without open windows.
Word, iTunes, Firefox, etc. however all CAN continue to run without windows open, playing music, downloading files, etc.
It saves me tremendous amounts of frustration that applications with long load times don't shut down when I absentmindedly close the last document I was working on before opening the next.
It's your conditioning entirely because the way windows work in Windows is different, and the popular Linux desktops duplicated the market leader for familiarity. Nothing more and nothing less. The windows model puts the application in a master "frame" if you will, with all the child windows contained within it. Close the frame, close the child windows. Apple doesn't use the frame; there's no "master" window for most applications.
You're right--no on can point that out to you...because it's not true. No claim has been made that open source users are pirates. The organization's complaint is exactly as you summarized--that policies requiring or expressly favoring open source solutions are trade barriers that IIPA members would like to see go away. They've asked the USTR to look at some trading partners with a frowny-face for a while in the hopes of shaming them to change their policy.
It's obviously advocacy, but it's not even particularly zealous advocacy. The same kinds of complaints are made by open source advocacy groups regarding corporate and government policies that prohibit open source consideration in bidding and/or deployment. I doubt IIPA is going to get much traction on their argument, and they shouldn't, because their members have benefited from agreements and policies going the other way for years. OSS trade groups complain, usually rightly so, about the "no open source" policies all the time.
It's certainly a far cry from the IIPA calling anyone pirates, and the telephone game of sensationalism starts in the article. The IIPA says that product evaluation should be based on the best solution, not the development model. That's a correct statement, and one used by both sides. Each issues that statement when they're on the losing end, and say nothing when they're benefiting. That's just politics.
It says that failure to do so "encourages a mindset that does not give due consideration to the value to intellectual creations." This doesn't mean piracy--it means that it removes from consideration a value argument. They're saying that commercial licensing can't compete with free unless they can make a better overall value proposition, something that they can't do if they're not allowed to bid on an equal basis.
They're certainly not saying that OSS products aren't intellectual creations or that the developers or users are pirates. The letter isn't even about the competitors. It's about bidding and implementation policies at the user/customer level, including local and national governments.
The Slashdot summary just amps up the Guardian's usual sensationalism by a factor of ten, trolling for incensed Slashdotters, page views, and pirate jokes.
The difference between images/gamma and fonts/fidelity is pretty simple. With images, in general the single goal is an accurate representation of the image on your viewing device. This is because the purpose of the image is to be looked at.
I've seen this argument creep up a lot on Slashdot, and I think it captures in a nutshell the programmer's mindset, and a main cause of the singular inferiority of Linux typefaces and font rendering. With the Microsoft-Apple rendering debate, at least both companies have some understanding of typefaces beyond the sentiment expressed here.
First, let's be clear, since this discussion is pretty muddled. A typeface is not a font. Fonts are merely matched sets within a typeface. A font is rendered from a typeface based on user settings, but it's the typeface that is the work of design. Helvetica is a typeface, not a font.
With fonts, fidelity is NOT the single goal since the font itself serves a further purpose: it encodes a text, which's purpose is to be read.
There is no purpose to a multi-typeface environment if the purpose is merely to encode text. Every computer would simply have one typeface designed around screen display, and convert all text to that typeface.
Of the tens of thousands of typefaces, only a few hundred are meant to be used for encoding lengthy texts. But ALL of them are meant to be displayed as designed, regardless of medium.
So the primary goal of a font is to be legible. Being true to the font designers idea is secondary.
Strike that; reverse it. A typeface and its constituent fonts are first and most works of art. IF it is being used for the purpose of documenting a lengthy text (for which most typefaces are not designed), then an appropriate typeface should be selected for the environment, including the display medium and other factors.
People have designed exquisite typefaces for text on print media. Others have done the same for screen presentation. Most typefaces are not meant to produce razor-sharp text at impossible tiny sizes on computer screens. Forcing them to is like having your file browser artificially sharpen soft-focus photos when it detects them.
It is reasonable to expect that selecting a typeface actually shows that typeface accurately. What is the point of showing it at all if you're not going to present it accurately as designed? You should simply change the typeface to one more suitable for screen use, rather than butchering the design, which makes the typeface displayed not the one that was selected.
Microsoft led the push to adopt its web fonts to attempt to get people away from using print media typefaces on their websites, which I think is the right idea. The fundamental flaw in Windows, OS X, and Linux typeface management is that it makes the assumption that users know how to select suitable typefaces. They don't. Organization by category (Print, Text, Icon/Mark, Screen, Web-safe) would be massively helpful here.
Some people take the same utilitarian approach to photography--its function to them is just to document scenes and events. But it too is first and foremost an artistic composition, even if the ultimate use is simply to document, and a computer display should do exactly that, without editorialization. If your terminal typefaces are too blurry, you're using the wrong typeface.
Even an LED-backlit 10" screen is likely to use at least 7 watts of power in active use... and there's not a whole lot of space in the iPad for a big battery.
As another poster pointed out, this is just sheer lunacy.
A 10" display doesn't use anywhere near 7W on a modern MID.
As this very thorough test case depicts, using a 14.1" IBM R40 (a Pentium M system from long before the days of LED backlighting), the display unit used between 4.2 and 4.5W at full brightness. Needless to say, the LED backlight will shave 20% off that, and the step down in size from 14 to 9.7 inches will slice off a considerable percentage as well, given that the backlight must illuminate less than half the surface area.
So just for the sake of argument, we'll take a conservative 50% off the higher number and call it a day. This represents just a 30% discount for a screen half the size. That iPad display therefore is going to consume less than 2.3W.
That's a far cry from 7W. Also of note: the MSI Wind (a 10" netbook) was found to use 22W under full load. The Atom/945 Express combination has a combined TDP of over 18W alone--leaving 4W for the hard drive (2-2.2W on read/write), the display, the keyboard, speakers, and the trackpad (granted, the latter three are often idle when these tests are performed, but it still illustrates the low power consumption of modern LCDs). These displays just don't consume the power you think they do.
At normal load, when the Atom SOC is averaging 6W, a ~2.3W display is a pretty huge deal and greatly affects battery life. Even worse, on something like the iPad, with the A4 (assuming it's basically Snapdragon/Tegra) running barely 1W under normal load, it's a huge part of total consumption. But it's still just 2.3W.
We are moving around in circles due to the loose and imprecise way in which you describe how affirmative defenses and necessity work.
The only thing that is loose and imprecise is your understanding.
Affirmative defenses apply to non criminal cases too. How can a law be broken in a non criminal case?
Breach of duty of care is a violation of the law of torts. Trespass is a violation of the law of property. Copyright infringement is a violation of the law of copyright. Breach of contract is a violation of the law of contracts.
Unless a case is proceeding purely in equity for which there is no constitutional, statutory, regulatory, or case law, the alleged violation is of the law.
Your statement doesn't even make sense.
Only because of how poorly versed you are in the salient details. You don't even know what a law is, apparently, given your idiotic belief that the only laws on the books are criminal.
I mean, good god. Copyright infringement is against the law and is almost always civil. You don't even have to branch out beyond the topic of the discussion to find examples of your ignorance.
Without any admission of guilty or "breaking the law".
An affirmative defense by definition is an admission that the law has been prima facie broken. It is an excused breaking of the law by the operation of some greater interest.
Getting an NGI in a murder case means exactly that the defendant actually committed the offense, but will not be punished due to insanity. It necessarily includes the perpetration of an illegal act, as otherwise the verdict would be based on a negative defense.
Arguing "necessity" in any sort of applicable context necessarily includes the commission of a crime. You can't argue that "I needed to break and enter because I stood to suffer grave injury" and then claim in the same argument that you did not break and enter.
(NB--you *can* plead in the alternative that (A) I did not break and enter or (B) if I did, I did it out of necessity. However, the verdict will specify by its nature which argument was found to be true. If (A), you win by negative defense [no proof that a crime was committed]. If (B), you win by affirmative defense [a crime was committed, and the defendant was justified in committing it]. A finding of "not guilty" does not mean that no crime was committed; it means that the defendant lacks culpability for it.)
You keep on stating this without providing any evidence for it. Just repeating it does not make it any more true. For example, assumption of risk is one of the forms of affirmative defense. To use assumption of risk there is no claim that any law was broken.
The evidence is in the name and development of the relevant doctrines. Affirmative defenses are justifications for lower (including nullified) punishment. They are not negative defenses (assertions that the prima facie case has not been made). Your continued resistance to the idea does not alter the fundamental reality of the distinction.
Note also the legal operation of acquittal: a finding of not guilty is not a finding of factual innocence. An acquittal by a verdict of "not guilty" simply means that the jury decided either that the breaking of the law was justified (by successful argument of an affirmative defense) or that it was not proven (by successful argument of a negative defense). An actual finding of innocence is exceedingly rare.
Further, you are mistaken regarding assumption of risk. Assumption of risk is a defense that excuses the defendant from his duty of care. It is not an argument that the defendant had no liability generally or no duty of care at law; it is an argument that the plaintiff engaged in behavior that reduces or eliminates that duty. In other words, "my duty of care as a landowner does not apply to this person and this activity because he voluntarily assumed the risk of engaging in this activity on this land."
It is not an argument of no legal duty; it is an argument that the landowner is excused from his duty. If the argument is that the landowner does not have a duty, the proper relief is summary judgment, not litigating on the merits. (See e.g. Knight v. Jewett (1992) 3 Cal.4th 296.)
No so. Affirmative defenses do not necessarily carry an admission of guilt. The typical example is entrapment, in which the Third Circuit (US v Hill 1981) claimed that entrapment (and entrapment alone) carries an assumption of guilt. At the same time, the Ninth Circuit court ruled "that a defendant may assert entrapment without being required to concede that he committed the crime charged or any of its elements" (US v. Demma, 1975). This ruling is based on precedent from the US supreme court in which Chief Justice Hughes "expressly rejects the Government's contention that a claim of entrapment necessarily involved an admission of guilt."
Your argument is not on point. The government in the entrapment cases argued that arguing entrapment was an admission of factual guilt to an
One should really distinguish between the right to freedom, and the 'right' to control others.
Meaning what? The right to control others is inherent in a property owner. Property is an exclusive right--one shared by no one else and under your sole power to control. Today, you're more likely to see the phrase "proprietary interest" rather than exclusive right, but both mean the same thing (but watch out for non-exclusive proprietary interest in transactional work). Any interaction by a third party with your proprietary interests is yours to control unless explicitly stated otherwise by standing law. That is the essential freedom of the property owner.
What should be distinguished is who the freedom is for. With all property, it's the owner's freedom--not a third party's. A copyright is the owner's exclusive right (i.e. "property) to control copies.
The term 'copyright' is doublespeak, unlike genuine property rights, in which eating an apple stops others from eating it, copyright is purely a restriction on people.
Absolute hogwash. First, copyright is hardly doublespeak. It is exactly what it says. The owner of a copyright has the exclusive right to authorize and make copies, distribute, modify, and so on. The Constitution itself refers to it as property.
Real property is purely a restriction on people. The owner of land can't physically occupy all of it. Your total lack of rights, except those given to you by the property owner, are purely restrictions on your actions.
"Genuine property rights" is also a hilarious red herring. Property is nothing more or less than the exclusive right at law. All property is intangible; all property is legal fiction.
You only impinge on someone's rights if you stop them from doing something, in some way.
For example, depriving the owner of his exclusive right (a proprietary interest) to grant admission to his land. You have stopped him from exercising his legal right to exclude you, no matter what the conditions.
Or asserting a distribution right to a creative work that belongs to someone else. You have deprived the owner of his exclusive right (a proprietary interest) to control the distribution of his creative work, permanently substituting his market authority for yours without right or authorization.
Disobeying an order in a way which doesn't affect what they can do is impinging on their power.
No, trespassing, the classic real property example of what you're saying, is very much an infringement on the owner's exclusive rights (i.e. property).
You keep on making this mistake of assuming that an affirmative defense affirms the crime. For one an affirmative defense applies also in civil liabilities, where there is no crime
Not so. As you quoted me saying, an affirmative defense is "yes, I broke the law, but punish me less because..."
There is no mention of criminal proceedings or of guilt. It was your post that made the first and only references to criminal prosecution.
An affirmative defense does affirm the prima facie case. That is why it is called an affirmativejustification, not a denial of committing an unlawful act. In order to assert an affirmative defense, it must be the case that the law has been broken.
The next best known one is insanity defense. In both of those cases the typical verdict is not guilty, not "punish me less".
Once again, you are imposing a criminal context where none exists. Moreover, in both of the examples you cite, the defendant has broken the law and is arguing for a lesser punishment. In the criminal context, sometimes that means an acquittal if the justification is sufficiently strong.
However, and this is key, the defendant broke the law and is responsible for that action. The justification defenses simply relieve him of the burden of punishment. A finding of not guilty does not mean that the subsequent civil case will result in a finding of no liability, and in fact, arguing an affirmative defense in a criminal prosecution while having jury findings against any negative defenses is usually sufficient to find for liability.
Once again, however, since my example was a discussion of damages and civil liability, your entire tangent remains completely orthogonal to the original point.
Not so. It varies by jurisdiction. Some require life-threatening conditions, in others it simply suffices that the alternative was sufficiently worse than the otherwise illegal course of action ("choice-of-evils" doctrine).
(emphasis added" Again, not being a lawyer and not having attended law school, you fail to realize that the other elements of necessity as borne out in case law, uniformly require a grave injury for a successful necessity defense. "Sufficiently worse" being the key, it is not sufficient for a 51/49 split. There must be clear and convincing evidence that the harm to the trespasser would have been great, and that the only reasonable alternative was to trespass.
This is a higher standard than you make it seem, a very different scenario than the one given, and a defense that effectively never would apply in a copyright infringement scenario, so the argument by analogy accomplishes nothing for you.
Slashdot Mirror
Correct me if I'm wrong, but in filesharing cases, they're usually statutory damages, not punitive, no?
Well, correction.
Both copyright damages and these spam damages are statutory damages (i.e. specified by statute, as opposed to discretionary), and both are intended to have punitive value (i.e. you will only enforce the claim against a tiny minority of offenders and therefore it's the risk and cost of being caught that has deterrent value). Neither are punitive damages (i.e. additional damages beyond what is restitutionary or compensatory owing to specific misconduct by the defendant).
The GP's point is spot on for many people here (though there are also many who have no problem with the penalties and enforcement structure, and instead have issues [some legitimate; many not] with the substantive laws that give way to the penalties in the first place).
Hell, they still are. A BSD-licensed work that's rolled into a proprietary one isn't hurt just as you say -- unless the original project folds and the only remaining copies of the code are in the proprietary project.
Well, the original project A still wouldn't be hurt, because it faded on its own merits. If the code still existed in a proprietary project B, B wouldn't have any responsibility with project A.
That same scenario happens now when a forked GPL project folds after the fork, if all the developers vanish, then all changes in fork 1 are lost insofar as they were not in existence at the time of fork 2's creation. Fork 2 has no obligation to keep copies of fork 1 just for posterity's sake, should fork 1 collapse.
The whole idea that you can't have freedom by limiting freedom is just silly. If you don't limit my right to kill you for what you say, then you can't have free speech.
It's not silly at all. Limited freedom is an essential element of any civilized society. Peace and order prevail over freedom for exactly the reason you and I have illustrated.
Is liability for defamatory speech a less free version of free speech? Absolutely. Is there anything "wrong" with that? No. Maximizing "fairness" or fundamental, democratic access is inherently less than free.
Freedom in the modern Western sense means precisely maximizing the freedom of all the commoners.
No, freedom still means freedom. Modern Western civilization simply takes a different balance of freedom, fairness, and rule of order.
The GPL does the same thing, emphasizing fairness and democratic access over freedom. It's disingenuous to call a system of restraint a "different kind of freedom"--it's simply not. More restraints = less free. For once, life really is that simple.
A regulated free market is less free than an unregulated free market. The regulated market is more fair, it's probably more openly accessible, and it's better for society overall. But it is not more free or even as free as an unregulated one.
The problem between BSD and GPL tends to be that GPL folks take BSD code and make it GPL-only. This exercises a freedom the BSD folk say they cherish, but it irks them that they lose another freedom.
It doesn't irk anyone. The BSD license inevitably contemplates forks being made into GPL projects. There's nothing improper about that.
That freedom is to take new changes back into the core project.
No such "freedom" or expectancy exists under the BSD license.
he basically says patents are bullshit.
No, he doesn't. He says the idea of "natural property" is bullshit, because it is, and people who consider patents a natural right when real property is a social construct are overstating their case.
"But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance."
In fact, he specifically says that if such a system is society's will, then it is entirely proper. "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody" (emphasis added)
This same Jefferson, of course, also said:
an inventor ought to be allowed a right to the benefit of his invention for some certain time
He went on to found the Patent Office as Secretary of State and is one of the key figures in the development of patent requirements and practice, specifically because of his particular reservations. Jefferson became a strong proponent of the US patent system.
Ways like putting your own name on it instead of the original developer's. The BSD license doesn't allow that, therefore it's not free either.
Attribution is not use.
You could theoretically have a license without notice or attribution requirements, but none exist for general public use because there would be no notice to the user of rights or copyright status. This leaves BSD/MIT to set the curve on imposition of limitations.
To have absolute freedom, you must release code into the public domain. Almost no one is willing to do that. BSD/MIT are the closest to a public domain release.
Hey, if you're in the Seattle area, would you be willing to take on a legal clerk seeking to eventually take the bar?
I'm not, actually, though I do love the Pacific Northwest. I'd be of little use anyway, as I have no involvement with the firm's recruiting committee, and no one but equity partners have independent hiring power.
What you'll find if you want to go the route of apprenticeship is that you'll need to locate a small firm, not a solo practitioner and not a medium or large firm. Even most "small" firms will likely be too large. The reason is that the personal supervision requirements are onerous for a solo practitioner. I'm not sure what Washington's requirements are, but usually it's 4-5 hours a week direct tutelage. A one-attorney practice won't have that kind of spare time, and a firm with more than 5 or 6 attorneys won't likely be in a position to provide the necessary personal attention.
The most practical advice I can offer is to look for someone winding down his or her career, who might be transitioning to working part time, as they will have the experience to teach well and the time to take on an apprentice.
I'd also be remiss if I didn't mention the fact that most people who self study do not pass the Bar exam, and that if you hope to work in the IP field, law school pedigree is extremely important to clients both big and small, individual and corporate. The indie clients want to know that someone with real assets places stock in your abilities, and in order to have represented those clients, they'll want to see academic achievement, at least until you build a reputation. I do know of one self-studied attorney, but he had a 20-year career as a police officer before practicing criminal law. So it is possible if you're particularly motivated, but it will not be easy, even relative to the profession in general.
Good luck!
Not to push another GPL-vs.-BSDL flamewar, but history shows that this level of restriction is prudent and protects the freedom of developers at later levels of redistribution
No, it doesn't. You're presuming an entitlement that does not exist. Developers at later levels of distribution have all the same freedom to that original code that they would otherwise have. They may or may not have rights to the work of third parties, but the existence of that third-party code is not guaranteed.
If Microsoft takes BSD code and makes a closed source derivative, your "later level developer" hasn't lost anything. Microsoft didn't have to create that derivation, and quite possibly would not have done so if not for the free use of the BSD code. The developer is no worse off with regard to that code.
Microsoft and Apple have taken BSD licensed code and turned it into proprietary software, which restricts the freedom of developers who receive copies of the BSD licensed code from Microsoft or Apple.
It doesn't. Developers who receive BSD licensed code still have full access to that BSD licensed code. Recipients of the proprietary derivative get the full use of that software. Without the freedom to close the code, the software product in question might not have existed at all; there's certainly nothing lost with regard to the parent code.
You are making the RIAA "lost album sales" argument, just with code, which you have rejected in that context. The fact that a copy of project A (BSD) appears in project B (closed) does not mean that developers of project A have lost anything.
The only people who really see more freedom from BSD licensing are people who want the freedom to restrict the freedom of others; how exactly does the BSD license benefit freedom in that case?
"Freedom" necessarily requires that people have the power to make choices you don't approve of.
The presence of restrictions means that there is not freedom. You can say that a few, careful restrictions on freedom is in everyone's best interests (the GPL does exactly this), and you might be right, but it's still a restriction on freedom--you are controlling the choice of others, just in a different way.
"Here is some code; do whatever you want with it" is freedom. That means selling it, compiling it in binaries and not releasing the source, inserting emoticons all over it, and whatever else you can imagine. "Here is some code; do whatever you want, except you can't distribute it without releasing the source code" is not freedom. It's maximized access, but constrained choice. The term "libre" refers to freedom of choice.
If democracy of access is your benchmark, you're not talking libre, you're talking demos. By that metric, GPL wins out over BSD, but it's not freedom you're advancing, it's order and justice--the classic contrast between individual and societal, American "life, liberty, and the pursuit of happiness" and Commonwealth "peace, order, and good government".
The very fact that you talk about restrictions to ensure fairness for everyone forecloses the possibility of freedom, because freedom is distinctly unfair.
I do not see how you could call this "monomaniacal fidelity"... as you have been educating me this whole time, I've dropped numerous misconceptions left and right... That I'm boneheaded enough that you have to explain it multiple times, or in different ways is this any different from any person learning? I don't think so. No one learns perfectly from mistaken to correct in one step.
It wasn't meant as a slight in the least, but simply as an observation of how your dedication to the model, by attempting to work my comments into it, was hampering your understanding.
I'm glad that you have been able to learn, and to engage in a discussion without a loss of composure.
Basically, that vesting of copyright interest is applied well before the work is created, rather than after the work is created. That would be the missing piece I was missing all along.
Almost. You're effectively correct, but since we're being pedantic, it's the authorship status that is established before the work is created. (A copyright interest may only vest in a work that has been fixed, and fixation necessarily occurs after creation.) The legal author is the party in whom copyright ultimately vests (once the work itself reaches a point where it satisfies the requisite elements for copyright protection), absent particular agreements and loopholes changing that party. "Authorship" in the context of copyright is the person responsible for causing the work to be created (in other words, the source of the "creative spark"). The labor of execution itself, as you already know, is distinct from the impetus of creation (even artists themselves often delegate to assistants performing a significant portion of the labor).
So sequentially, it's authorship [idea] > creation [expression] > fixation [completion] > vesting of copyright > (optional transfer or assignment of copyright) > exercise of exclusive rights > (termination of assignment) > ceding to public domain.
I think your model's premise is based on probability more than presumption, which is what I didn't initially see, or I might have been able to clarify this sooner.
These misunderstandings should be a natural expectation to occur in the situation where Slashdot posts a story by a layperson opining about UK law, and commentors discussing it as if it were US law.
Oh, misunderstandings abound in every Slashdot story about legal issues, particularly hot-button issues like copyright and patent. The signal to noise ratio around here is hopeless.
Ok, to bring things back together. The proper way to think about the "pseudo-code" for this matter would be:
No, it absolutely is not.
As a personal matter, I cannot pedantically accept this as not having a "default state". There is one condition, and a "catch all" condition that applies for all other cases.
Then your false pedanticism interferes with your understanding of the issues.
Perhaps I have gotten ahead of myself and missed an explanatory step: vesting is the process of creating a copyright. There is no presumption of a default state or catch all from which a work for hire is a deviation. You cannot have a presumption that a party has a copyright interest prior to the vesting of a copyright, which is exactly what your pseudo-code does. The question of the identity of the author is one that occurs before the creation of the work, not after.
Next in the elementary process, a presumption is "A legal inference that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption." (Black's, 8th.)
Thus, in any given dispute between a customer and an {artist|writer|sculptor|photographer|programmer}, it is the fact of the agreement's existence that establishes the first legal presumption. The "known or proven" fact will be the nature of the agreement: a purchase of an existing work or the creation of an entirely new work. The first presumptions (in your terms, the "default states") arise at that time and at that time only.
The purchase of an existing work from the creator-artist establishes an inference (but not technically a presumption...) that copyright vested in the creator-artist. (It is not a true presumption because in this situation, the creator-artist still has an affirmative burden to show copyright ownership before obtaining relief, and thus it is not formally presumed that he is the copyright owner.)
The agreement to create a new work for the customer establishes a presumption that copyright vested in that customer. The customer will have to assert that she still owns the copyright (but the creator-artist will have the negative burden to prove that that is not the case, so this does not defeat the presumption).
Thus, the "default state" for copyright ownership depends on whether the agreement occurred prior or subsequent to the work's actual creation. There is no universal "default state" or catch-all; this is a threshold (i.e. first step) issue.
In simpler terms, forget your "pseudo-code" entirely. It's just wrong. You can assume statistically that in the simplest cases, the artist is usually the author and the copyright holder, but you cannot functionally, technically, or legally presume that that is the case. (Just as, for instance, you can have a CSS/JS element with a default state of 'display:none;' even though it's actually made to be visible 90% of the time.)
Thus, for the patron, regardless of if a "work for hire" argument would succeed in court, it is still in their best interest to include such language in the contract.
Yes, as my original comment expressly states.
Basically, as my sig used to say, I'm a pedantic bitch... I like to ensure that everything is covered as precisely as possible.
Then you should not insist on monomaniacal fidelity to a self-created model that contradicts reality, both technical and legal. As I said, it's not an illogical model, it's just not the one that actually exists.
That the patron hired the artist for the work establishes a reasonable assumption that the work is a work for hire. However, this still skips a few steps of legal "process" as I would see it.
Then we must work to address your perception of the process.
Copyright is vested in the author. But the author is not necessarily the creator. The fundamental threshold question is, "who caused this work to come into existence?" The answer to that is either (a) the artist/creator or (b) a commissioning patron. There are no earlier steps to this process.
If it's (a), then copyright presumably vests in the artist/creator (barring subsequent agreement or assignment to the contrary).
If it's (b), then copyright presumably vests in the commissioner/patron (barring specific negotiation and conduct as an independent contractor without mutual consent on WFH status).
In the same way, my pedantic mind is approaching matters similarly. Breaking it down into kind of pseudo-code, I would establish:
var work = artist makes a copyrightable work
var work->author = artist
if (work is for hire) work->author = patron
work->copyright owner = work->author
Your interpretation simply does not reflect reality. You have described a transfer by substitution in your pseudo-code. By setting the "author" variable to artist at all, you are asserting a vested interest in the artist where none exists, technically or legally.
Still establishes a default, because there is a generic state, and an exceptional state.
No. There are two generic states, each with independent exceptional states. The essential question of copyright ownership begins with the party of legal authorship. There is no default presumption as you describe it.
I don't care how much you want to argue about this, for the very reason that not all works have patrons declares that "work for hire" must be an exceptional situation legally
There's nothing to argue; this is settled law both statutorily (section 201) and in case law (see e.g. CCNV v. Reid (1989), 430 US 790).
All works have authors. The only default presumption that applies here is that the legal author is presumably the owner of the copyright. If the author is the creator, the default state is copyright vesting in the artist. If the author is the patron, the default presumption is that copyright vested in the patron.
Be aware that by stating that you hired someone to do the work is an assertion of fact. It is an easily provable one, and thus rarely challenged.
On the contrary, it is often a hotly contested issue, but this statement is of no particular significance in this discussion.
Again, as stated before, even though the technical details of the law are glossed over, likely even in court, it does not mean that a case cannot arise where this detail becomes a issue.
As you will see as you begin to read the law in this area, the technical details are essentially the only ones discussed in court. The "technical detail" you describe, however, is a purely fictitious construct you have created for yourself.
It's not an illogical construct; we could easily have created a system that vested all copyrights in the artist and simply mechanically transferred them without any formalities to commissioning patrons, creating the default state you describe. The fact is that we did not create such a system for several reasons, not the least of which would be its unconstitutionality.
The US being a signatory of the Berne Convention was required to have "moral rights", but declined to actually create them, because they held that the rights that "moral rights" would afford already exist through alternate mechanisms.
Not entirely. As history clearly illustrates, most of the set of Moral Rights di
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner.
Agh. That didn't come out right. It should read as follows:
The default owner of the copyrights is the creator. When the creation is done by the will of the artist, the creator is the artist. When the artist is hired by a patron, the patron is the creator as a matter of law (and the artist merely an agent of the creator).
In other words, as said in my earlier comment, there is no presumption that the artist is the creator when the work is a commissioned one; the presumption is that the commissioner is the creator.
E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case
Premise E is a matter of law determined by the judge, but yes, essentially that would be true, ignoring for a moment the huge gulf between premises D and E.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner. There is no transfer--copyright is vested in the patron.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire.
No. A commissioned work is presumptively a work for hire. The artist must demonstrate that he is not an employee, and that as an independent contractor, the work is ineligible for application of the work for hire doctrine.
You are conflating presumption and burden.
What this typical practice means, is that if a lawyer is handed this case to work on, his first assumption could be that it was done as you've stated, however that is not the legal default... simply the most common.
Incorrect. A work for hire is not a case of transfer of ownership; it is a case of original ownership vesting in the hiring party, as the traditional patron model holds. For example, when a sculpture is commissioned and it is damaged by a third party during construction, the commissioning party is the only one with standing to bring suit.
"Moral Rights" in the US is covered under such things as libel and slander. While I have nothing named "moral rights" to the code I wrote while at Microsoft, I still have the right to say that I wrote said code.
No. Moral rights are covered solely under section 106(A). Libel and slander also have nothing to do with attribution rights barring some exceptional additional facts. False attribution would be redressed in a civil fraud action.
Ah, but there is also another case, where the work is produced without use of associated works. Carving a statue from a medium, or producing a software program in a non-compiled scripting language is such that by transferring the finished work the agent has no "additional works" to negotiate for.
That was not your scenario.
if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
Express consent by the parties is required only of independent contractors, not of employees. If the work ordinarily qualifies as a work for hire (as e.g. a contribution to a joint authorship), then as the expected business practice, that weighs heavily in the direction of "employee".
still hold that it would be stupid of the programmer not to be aware of his legal rights
Absolutely.
and the default presumption that the work is his
There is no such presumption. In fact, common practice weighs the opposite direction for most programmers hired to create a new work. The only time there is a default presumption that the programmer retains all rights is if s/he creates it of his own initiative.
When a work is specially commissioned, the historical and typical practice is that the commissioner buys the work, lock, stock, and barrel. This is true of all copyrightable works, including software. The buyer who commissions a work buys the work on the theory that the artist is but a tool, a means to an end for the commissioner; the artist/creator who sells copies of his existing works sells just the copies on the theory that the artist has not sold his own creation itself. These can be reversed (you can persuade Microsoft to develop Word and buy just a licensed copy and someone else can come along later buy the complete copyright to Microsoft Word), but must be reversed deliberately.
Artists failing to negotiate persistent rights to preserve the integrity of their commissioned works was a major issue, culminating in VARA two decades ago, but the final version of VARA applied to a small minority of sculptural and architectural works only. There are no moral rights to software under US law.
It's the artist/author/programmer who needs to ensure that any rights he wishes to retain are specifically negotiated and explicitly contracted (and that if he is relying on independent contractor status, that he ensure his conduct clearly separates him from an employee), otherwise it is presumed that the commissioner wholly owns the work she commissioned.
and the necessity of stating in clear explicit language that they will obtain the rights to the code).
Rights to the source code are independent to copyright ownership of the compiled machine code. While it's important that customers, whether employers, putative employers, or parties to a contract make a clear agreement regarding the source code, that's a totally separate provision in licensing and conveyance contracts.
A contract that did not specify source code rights would generally not have them. The programmer would retain his copyright on the source as the sculptor would retain his molds and the painter his sketches, unless the customer specifically negotiated for the conveyance of all associated works. If the programmer were to compile that code again unmodified, though, he would be infringing on the customer's copyright, just as the sculptor would be infringing if he used the molds to make an essentially identical or clearly derivative copy of the commissioned sculpture.
You are woefully misinformed as well.
GP broadly misstates the work for hire doctrine, but so do you--just in the opposite direction.
If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.
Not so. Written agreement by both parties in a valid contract can establish the work as a work for hire copyright so long as it is commissioned for a collective work. 17 USC 101.
If your customer provides a copyrightable data set or is integrating your software product with any other copyrightable work, they have a collective work claim, and coupled with contract language stating that it is a work for hire, it will usually be so.
For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights
This is true, if the programmer is an independent entity and is contracting for work with a third party. Stating that you are an independent contractor does not make it so, however, as many "contractors" are in fact employees for the purposes of the Copyright Act.
In order to be considered an independent contractor for copyright (and agency purposes in general), you must demonstrate that the putative employer does not maintain any substantial control over the work or over the programmer, and that the programmer's does not comport himself in a manner that would lead others to believe he was an agent of the employer. In modern programming relationships, this has grown increasingly difficult, given the increased input and meetings with the customer, along with their increased executive authority over project direction.
Assuming you did accept a simple commission and are deemed not an employee-agent, the product will not be considered a work for hire only if it is not part of a collective work. The collective work need not be entirely software to qualify, so programmers are rarely off the hook on that basis alone. The parties in this case must agree that the product is a work for hire, as required to fulfill the definition of 17 USC 101 under paragraph 2 of the "work for hire" definition.
What this means in practice is that all contracts should specify, in the positive or negative, the work for hire status to minimize disputes later on. Good attorneys can move the work for hire line a fair distance both ways because the concept of agency is fairly nebulous and the degree of customer control exercised necessary can vary wildly from case to case.
If the customer explicitly agreed that it was not a work for hire, particularly a sophisticated customer, it probably won't be found one later. If the contract explicitly states that it is a work for hire, it is a virtual certainty that federal judges will make it so by the end of the trial, and usually will do so without so much as breaking a sweat.
Actually, you're both right. "Moot" is a frustrating word in English, because like 'sanction', it has contradictory meanings.
Moot does mean 'debatable', but it also means 'insignificant', 'meaningless', or 'irrelevant'. In the applicable context here, a statement regarding legal issues, it also means 'nonreal' (a moot issue is one in which there is no longer (or never was/will be) an actionable, real legal controversy).
GP's point and usage is correct. Even the most basic and elementary contract in this field will establish ownership rights. Generally, this allocation is the reason for the contract in the first place, apart from memorializing the payment agreement.
Seriously, "The plus sign inside might be suboptimal" is a perfect example of jumping through hoops to rationalize incredibly bad design. A plus sign ALWAYS means ADD.
The symbol shows what the button, in general, does. It's no more or less intuitive than the Windows buttons, really, which have to convey operations in a tight space. How does a square indicate maximize? It doesn't make any sense until you understand what the button does.
It also is not "Zoom to Fit", as pressing it once MIGHT make the contents fit, but pressing the "Zoom to Fit" again, has the reverse effect, and thus could not be called "Zoom To Fit" by any rational English speaker.
And again, this is identical behavior to Windows. Click once for maximize. Click maximize again, and it shrinks. If your window started maximized, clicking "maximize" the first time will make the window shrink.
The behaviour is definitly application specific, and totally inconsistant for an OS widget.
Of course it is. Applications are set to be different sizes by the developer as the "fit" size. The zoom button toggles between the developer-specified fit size and the user specified size.
Clicking it one time will enlarge, clicking it again will reduce, unless it started out "large" in which case the odd/even toggle will be reversed. The button behavior is identical to that of Windows. The difference is that Windows specifies full-screen as the toggle state, and OS X specifies the application's preferred window size as the toggle state.
An icon of a single window if it will fill the screen, and an icon of two windows if it will not, indicating that you can see more than one window. Go check it out for yourself.
Except that a user has no way of knowing that's what the symbols mean. One is a square, and one is two squares. The relationship is certainly not obvious unless you already know what the button does.
Red means stop. This existed LONG before OSX. Expecting users to magically know which applications are 'simple' applications that will close, and which are complex applications and will continue to run without a UI is, again, counter intuitive.
Says who? The button is attached to the window. "Stopping" the window should stop that window. It doesn't make sense to stop other windows. The application has a menubar. If you want to stop the application, do it there.
Users don't have to know the difference. They can quit all applications the same way: cmd-Q or Application>Quit. They can close windows the same way: click the close button on the window. There's nothing counterintuitive about that.
On the other hand, the number of people complaining that "Word disappeared" because they clicked the wrong "X" in Windows is high. They were done with the document.
Also, your "Application-Level" UI control, has an entry to close the window. This is directly contrary to the Application/Window paradigm that you are claiming exists.
This is totally nonsensical. Of course application-level controls have these options. Windows are spawned from the application.
In this so called "Application-Level" UI element, they call the action "Close". It doesn't say "Stop" the window. It says "Close" This is because the metaphore they are going for is in fact "Closing" a window. Thus, a red button would be totally counter intuitive, and would in fact confuse anyone who was raised in a place where red means "Stop".
I think you might want to spend some time considering the definition of counterintuitive, and possibly your fixation on what colors "mean". Red lights also mean "record", "do not enter", "power on", "standby", "error", and countless other meanings depending on context. Red does not mean "stop".
Red in this context means close.
I suppose you have a post re
That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion).
No, it's a minimum award of $750 and a maximum of $30,000, assuming no willful infringement.
Statutory damages are per work, not per copy.
Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?
Complete non-sequitur. Is a $30,000 penalty for a corporation misusing someone else's property too high? Of course not. Is the same penalty too high for a kid who is pirating music for his iPod? Almost certainly.
Well, not sure where to start. Well first of all now you silently seem to concede that legibility and fidelity are at odds in certain situations
"Now" as opposed to when?
That is not what I said. I said the primary goal is encoding text; I never said it's the only goal. This multi-faceted character was the whole point of the comparison with images.
The comparison, or more accurately, the contrast you propose, is faulty. Images sometimes encode visual information just as typefaces sometimes encode textual information. Both, however, are primarily artistic works, not utilitarian tools.
The utilitarian treatment of typography by the technically-minded is exactly what I'm talking about.
I'll add that it's a given that we're talking about fonts^Wtypefaces that are designed for either lengthy texts or something similar that's fairly specific to computer interfaces
Except that it's not. Typefaces that are designed for lengthy texts or computer interfaces are a tiny minority of the typefaces in existence--less than 1% of them, in fact.
The point I'm making here is that your backwards view of the art and science of typography is emblematic of the greater problem of the state of typefaces and their presentation in Linux, and the general refusal to bring in actual experts in the field or address the obvious aesthetic shortcomings in KDE and Gnome. I happen to think both Microsoft and Apple do an excellent job and that Linux's biggest distinguishing character in the "desktop wars" is its woefully inferior typography.
I'll say again, people have designed exquisite typefaces for text on print media. Others have done the same for screen presentation. Most typefaces are not meant to produce razor-sharp text at impossible tiny sizes on computer screens. Forcing them to is like having your file browser artificially sharpen soft-focus photos when it detects them, whether it's what the photographer wanted or not.
The primary goal of a typeface is to express the creator's technical and aesthetic vision. The font renderer's only function is to present that vision, just like any other rendering engine. It's not to create highly legible on screen characters at screen resolution for every typeface; it's not to destroy the creation to make the typeface suitable for encoding long texts.
If the user desires to read long texts on a low resolution screen, s/he should rely on typefaces designed for that purpose. The font renderer should not make assumptions about the purpose or intent of all uses, just as the graphics layer should not assume that all photos should be processed for maximum clinical accuracy. If you want to use the photograph as a diagram, take a suitable photograph. The artistically composed shot shouldn't be straightened, contrast tweaked, and sharpened by the rendering system when it wasn't asked to do so.
If you've got problems with a blurry font, you're either using the wrong size for the resolution or the wrong typeface entirely. The change to be made in that case, though, is by the user, not by the renderer. If you don't care about accuracy, then you certainly can't care about the identity of the typeface.
The green button is a "zoom to fit" button. The plus sign inside might be suboptimal, but there are no "fiery logic hoops" involved. If the window is larger than the "fit" size, it shrinks. The button's behavior is quite consistent--the destination is always the same. Different starting points just lead to different paths.
The plus sign on hover might be suboptimal, but I don't think there's a simple symbol for "zoom to fit"--and zoom is generally regarded intuitively as zooming in. I doubt most people associate the mouseover symbol with the button function, though, given the strong associations people have with color.
For what it's worth, when you click the maximize button on Windows on a window that is already maximizes, it too shrinks back--the button symbol doesn't reflect this, either. I can't really see a meaningful difference.
This may be a petty complaint on my part, but if I click the red X, I expect the application to stop
If I click the close button on a window, I expect the window to close. I do not expect that command to be passed upstream or laterally to other windows. Application-level control is performed at the application-level interface: the menu bar. As a shortcut, some simple apps automatically close when the last document does because the application can't do anything without windows open.
If I have no windows open for a given application, I do not expect that application to be considered to be "running".
And I wouldn't expect that closing desktop windows would terminate an application that continues to work in the background without open windows.
Word, iTunes, Firefox, etc. however all CAN continue to run without windows open, playing music, downloading files, etc.
It saves me tremendous amounts of frustration that applications with long load times don't shut down when I absentmindedly close the last document I was working on before opening the next.
It's your conditioning entirely because the way windows work in Windows is different, and the popular Linux desktops duplicated the market leader for familiarity. Nothing more and nothing less. The windows model puts the application in a master "frame" if you will, with all the child windows contained within it. Close the frame, close the child windows. Apple doesn't use the frame; there's no "master" window for most applications.
You're right--no on can point that out to you...because it's not true. No claim has been made that open source users are pirates. The organization's complaint is exactly as you summarized--that policies requiring or expressly favoring open source solutions are trade barriers that IIPA members would like to see go away. They've asked the USTR to look at some trading partners with a frowny-face for a while in the hopes of shaming them to change their policy.
It's obviously advocacy, but it's not even particularly zealous advocacy. The same kinds of complaints are made by open source advocacy groups regarding corporate and government policies that prohibit open source consideration in bidding and/or deployment. I doubt IIPA is going to get much traction on their argument, and they shouldn't, because their members have benefited from agreements and policies going the other way for years. OSS trade groups complain, usually rightly so, about the "no open source" policies all the time.
It's certainly a far cry from the IIPA calling anyone pirates, and the telephone game of sensationalism starts in the article. The IIPA says that product evaluation should be based on the best solution, not the development model. That's a correct statement, and one used by both sides. Each issues that statement when they're on the losing end, and say nothing when they're benefiting. That's just politics.
It says that failure to do so "encourages a mindset that does not give due consideration to the value to intellectual creations." This doesn't mean piracy--it means that it removes from consideration a value argument. They're saying that commercial licensing can't compete with free unless they can make a better overall value proposition, something that they can't do if they're not allowed to bid on an equal basis.
They're certainly not saying that OSS products aren't intellectual creations or that the developers or users are pirates. The letter isn't even about the competitors. It's about bidding and implementation policies at the user/customer level, including local and national governments.
The Slashdot summary just amps up the Guardian's usual sensationalism by a factor of ten, trolling for incensed Slashdotters, page views, and pirate jokes.
The difference between images/gamma and fonts/fidelity is pretty simple. With images, in general the single goal is an accurate representation of the image on your viewing device. This is because the purpose of the image is to be looked at.
I've seen this argument creep up a lot on Slashdot, and I think it captures in a nutshell the programmer's mindset, and a main cause of the singular inferiority of Linux typefaces and font rendering. With the Microsoft-Apple rendering debate, at least both companies have some understanding of typefaces beyond the sentiment expressed here.
First, let's be clear, since this discussion is pretty muddled. A typeface is not a font. Fonts are merely matched sets within a typeface. A font is rendered from a typeface based on user settings, but it's the typeface that is the work of design. Helvetica is a typeface, not a font.
With fonts, fidelity is NOT the single goal since the font itself serves a further purpose: it encodes a text, which's purpose is to be read.
There is no purpose to a multi-typeface environment if the purpose is merely to encode text. Every computer would simply have one typeface designed around screen display, and convert all text to that typeface.
Of the tens of thousands of typefaces, only a few hundred are meant to be used for encoding lengthy texts. But ALL of them are meant to be displayed as designed, regardless of medium.
So the primary goal of a font is to be legible. Being true to the font designers idea is secondary.
Strike that; reverse it. A typeface and its constituent fonts are first and most works of art. IF it is being used for the purpose of documenting a lengthy text (for which most typefaces are not designed), then an appropriate typeface should be selected for the environment, including the display medium and other factors.
People have designed exquisite typefaces for text on print media. Others have done the same for screen presentation. Most typefaces are not meant to produce razor-sharp text at impossible tiny sizes on computer screens. Forcing them to is like having your file browser artificially sharpen soft-focus photos when it detects them.
It is reasonable to expect that selecting a typeface actually shows that typeface accurately. What is the point of showing it at all if you're not going to present it accurately as designed? You should simply change the typeface to one more suitable for screen use, rather than butchering the design, which makes the typeface displayed not the one that was selected.
Microsoft led the push to adopt its web fonts to attempt to get people away from using print media typefaces on their websites, which I think is the right idea. The fundamental flaw in Windows, OS X, and Linux typeface management is that it makes the assumption that users know how to select suitable typefaces. They don't. Organization by category (Print, Text, Icon/Mark, Screen, Web-safe) would be massively helpful here.
Some people take the same utilitarian approach to photography--its function to them is just to document scenes and events. But it too is first and foremost an artistic composition, even if the ultimate use is simply to document, and a computer display should do exactly that, without editorialization. If your terminal typefaces are too blurry, you're using the wrong typeface.
Even an LED-backlit 10" screen is likely to use at least 7 watts of power in active use... and there's not a whole lot of space in the iPad for a big battery.
As another poster pointed out, this is just sheer lunacy.
A 10" display doesn't use anywhere near 7W on a modern MID.
As this very thorough test case depicts, using a 14.1" IBM R40 (a Pentium M system from long before the days of LED backlighting), the display unit used between 4.2 and 4.5W at full brightness. Needless to say, the LED backlight will shave 20% off that, and the step down in size from 14 to 9.7 inches will slice off a considerable percentage as well, given that the backlight must illuminate less than half the surface area.
So just for the sake of argument, we'll take a conservative 50% off the higher number and call it a day. This represents just a 30% discount for a screen half the size. That iPad display therefore is going to consume less than 2.3W.
That's a far cry from 7W. Also of note: the MSI Wind (a 10" netbook) was found to use 22W under full load. The Atom/945 Express combination has a combined TDP of over 18W alone--leaving 4W for the hard drive (2-2.2W on read/write), the display, the keyboard, speakers, and the trackpad (granted, the latter three are often idle when these tests are performed, but it still illustrates the low power consumption of modern LCDs). These displays just don't consume the power you think they do.
At normal load, when the Atom SOC is averaging 6W, a ~2.3W display is a pretty huge deal and greatly affects battery life. Even worse, on something like the iPad, with the A4 (assuming it's basically Snapdragon/Tegra) running barely 1W under normal load, it's a huge part of total consumption. But it's still just 2.3W.
We are moving around in circles due to the loose and imprecise way in which you describe how affirmative defenses and necessity work.
The only thing that is loose and imprecise is your understanding.
Affirmative defenses apply to non criminal cases too. How can a law be broken in a non criminal case?
Breach of duty of care is a violation of the law of torts.
Trespass is a violation of the law of property.
Copyright infringement is a violation of the law of copyright.
Breach of contract is a violation of the law of contracts.
Unless a case is proceeding purely in equity for which there is no constitutional, statutory, regulatory, or case law, the alleged violation is of the law.
Your statement doesn't even make sense.
Only because of how poorly versed you are in the salient details. You don't even know what a law is, apparently, given your idiotic belief that the only laws on the books are criminal.
I mean, good god. Copyright infringement is against the law and is almost always civil. You don't even have to branch out beyond the topic of the discussion to find examples of your ignorance.
Without any admission of guilty or "breaking the law".
An affirmative defense by definition is an admission that the law has been prima facie broken. It is an excused breaking of the law by the operation of some greater interest.
Getting an NGI in a murder case means exactly that the defendant actually committed the offense, but will not be punished due to insanity. It necessarily includes the perpetration of an illegal act, as otherwise the verdict would be based on a negative defense.
Arguing "necessity" in any sort of applicable context necessarily includes the commission of a crime. You can't argue that "I needed to break and enter because I stood to suffer grave injury" and then claim in the same argument that you did not break and enter.
(NB--you *can* plead in the alternative that (A) I did not break and enter or (B) if I did, I did it out of necessity. However, the verdict will specify by its nature which argument was found to be true. If (A), you win by negative defense [no proof that a crime was committed]. If (B), you win by affirmative defense [a crime was committed, and the defendant was justified in committing it]. A finding of "not guilty" does not mean that no crime was committed; it means that the defendant lacks culpability for it.)
You keep on stating this without providing any evidence for it. Just repeating it does not make it any more true. For example, assumption of risk is one of the forms of affirmative defense. To use assumption of risk there is no claim that any law was broken.
The evidence is in the name and development of the relevant doctrines. Affirmative defenses are justifications for lower (including nullified) punishment. They are not negative defenses (assertions that the prima facie case has not been made). Your continued resistance to the idea does not alter the fundamental reality of the distinction.
Note also the legal operation of acquittal: a finding of not guilty is not a finding of factual innocence. An acquittal by a verdict of "not guilty" simply means that the jury decided either that the breaking of the law was justified (by successful argument of an affirmative defense) or that it was not proven (by successful argument of a negative defense). An actual finding of innocence is exceedingly rare.
Further, you are mistaken regarding assumption of risk. Assumption of risk is a defense that excuses the defendant from his duty of care. It is not an argument that the defendant had no liability generally or no duty of care at law; it is an argument that the plaintiff engaged in behavior that reduces or eliminates that duty. In other words, "my duty of care as a landowner does not apply to this person and this activity because he voluntarily assumed the risk of engaging in this activity on this land."
It is not an argument of no legal duty; it is an argument that the landowner is excused from his duty. If the argument is that the landowner does not have a duty, the proper relief is summary judgment, not litigating on the merits. (See e.g. Knight v. Jewett (1992) 3 Cal.4th 296.)
No so. Affirmative defenses do not necessarily carry an admission of guilt. The typical example is entrapment, in which the Third Circuit (US v Hill 1981) claimed that entrapment (and entrapment alone) carries an assumption of guilt. At the same time, the Ninth Circuit court ruled "that a defendant may assert entrapment without being required to concede that he committed the crime charged or any of its elements" (US v. Demma, 1975). This ruling is based on precedent from the US supreme court in which Chief Justice Hughes "expressly rejects the Government's contention that a claim of entrapment necessarily involved an admission of guilt."
Your argument is not on point. The government in the entrapment cases argued that arguing entrapment was an admission of factual guilt to an
One should really distinguish between the right to freedom, and the 'right' to control others.
Meaning what? The right to control others is inherent in a property owner. Property is an exclusive right--one shared by no one else and under your sole power to control. Today, you're more likely to see the phrase "proprietary interest" rather than exclusive right, but both mean the same thing (but watch out for non-exclusive proprietary interest in transactional work). Any interaction by a third party with your proprietary interests is yours to control unless explicitly stated otherwise by standing law. That is the essential freedom of the property owner.
What should be distinguished is who the freedom is for. With all property, it's the owner's freedom--not a third party's. A copyright is the owner's exclusive right (i.e. "property) to control copies.
The term 'copyright' is doublespeak, unlike genuine property rights, in which eating an apple stops others from eating it, copyright is purely a restriction on people.
Absolute hogwash. First, copyright is hardly doublespeak. It is exactly what it says. The owner of a copyright has the exclusive right to authorize and make copies, distribute, modify, and so on. The Constitution itself refers to it as property.
Real property is purely a restriction on people. The owner of land can't physically occupy all of it. Your total lack of rights, except those given to you by the property owner, are purely restrictions on your actions.
"Genuine property rights" is also a hilarious red herring. Property is nothing more or less than the exclusive right at law. All property is intangible; all property is legal fiction.
You only impinge on someone's rights if you stop them from doing something, in some way.
For example, depriving the owner of his exclusive right (a proprietary interest) to grant admission to his land. You have stopped him from exercising his legal right to exclude you, no matter what the conditions.
Or asserting a distribution right to a creative work that belongs to someone else. You have deprived the owner of his exclusive right (a proprietary interest) to control the distribution of his creative work, permanently substituting his market authority for yours without right or authorization.
Disobeying an order in a way which doesn't affect what they can do is impinging on their power.
No, trespassing, the classic real property example of what you're saying, is very much an infringement on the owner's exclusive rights (i.e. property).
You keep on making this mistake of assuming that an affirmative defense affirms the crime. For one an affirmative defense applies also in civil liabilities, where there is no crime
Not so. As you quoted me saying, an affirmative defense is "yes, I broke the law, but punish me less because..."
There is no mention of criminal proceedings or of guilt. It was your post that made the first and only references to criminal prosecution.
An affirmative defense does affirm the prima facie case. That is why it is called an affirmativejustification, not a denial of committing an unlawful act. In order to assert an affirmative defense, it must be the case that the law has been broken.
The next best known one is insanity defense. In both of those cases the typical verdict is not guilty, not "punish me less".
Once again, you are imposing a criminal context where none exists. Moreover, in both of the examples you cite, the defendant has broken the law and is arguing for a lesser punishment. In the criminal context, sometimes that means an acquittal if the justification is sufficiently strong.
However, and this is key, the defendant broke the law and is responsible for that action. The justification defenses simply relieve him of the burden of punishment. A finding of not guilty does not mean that the subsequent civil case will result in a finding of no liability, and in fact, arguing an affirmative defense in a criminal prosecution while having jury findings against any negative defenses is usually sufficient to find for liability.
Once again, however, since my example was a discussion of damages and civil liability, your entire tangent remains completely orthogonal to the original point.
Not so. It varies by jurisdiction. Some require life-threatening conditions, in others it simply suffices that the alternative was sufficiently worse than the otherwise illegal course of action ("choice-of-evils" doctrine).
(emphasis added"
Again, not being a lawyer and not having attended law school, you fail to realize that the other elements of necessity as borne out in case law, uniformly require a grave injury for a successful necessity defense. "Sufficiently worse" being the key, it is not sufficient for a 51/49 split. There must be clear and convincing evidence that the harm to the trespasser would have been great, and that the only reasonable alternative was to trespass.
This is a higher standard than you make it seem, a very different scenario than the one given, and a defense that effectively never would apply in a copyright infringement scenario, so the argument by analogy accomplishes nothing for you.