No, the evil twist being that they sit on the patents, not using them, hoping that if someone concurrently develops something similar, they can use any patents of a similar nature to beat the ever-living fuck out of the new guy in court for patent infringement unless he pays them a hefty fee. Thus patents are punishing inventors.
The inventor could not do this himself? BTW -- the grandparent said nothing about patents being intended to protect re-inventors. They are not and never were.
Patents were originally intended to protect inventors, but companies like IV have provided an evil twist.
The evil twist being that they buy patents from inventors willing to sell their patents to them?
How is the intention to protect inventors thwarted by allowing inventors to sell their inventions to a business rather than develop a business themselves?
How is the intention to protect inventors thwarted by allowing them to sell to anyone who can meet their price, whether the business manufactures something under the patent or merely intends to license the patent to others?
You might as well wage war on "used car trolls." Evil businesses that buy used cars with no intention to drive the cars themselves, but instead to hold them hostage until some saintly individual needs to buy one to haul Grandma to church on Sundays.
Interestingly, we did have a case where a juror ignored the judge's admonition against outside research - she printed out a definition of "Burden of Proof" she found online and brought it into the deliberations. It was confiscated by the bailiff before anyone else could look at it and she was dismissed. We spent most of the rest of that day playing on our cellphones waiting for an alternate juror to come in.>
God forbid a juror actually be familiar with the law...
A quick question for you to consider:
If you are a defendant in a criminal case, do you want the evidence brought against you, the interpretation of the law that is being applied against you, and any questions that the jury cannot decide for themselves based that evidence and interpretation to be available in an accurate record that you can cite in an appeal, or in a juror's cellphone browser history that walks out the door and never sees the light of day?
Yes, it is a loaded question, because if you had any experience with the legal system, you'd know that details like the rules of evidence, jury instructions, and the trial judge's handling of jury questions/special verdicts are critical in the attempt to ensure that jurors make decisions based on reliable and complete information in accordance with the law of that jurisdiction.
Wikipedia's definition of the term "burden of proof" is a mess, and even acknowledges that "The precise meaning of words such as 'reasonable' and 'doubt' are usually defined within jurisprudence of the applicable country." I will guarantee that the grandparent was given an explanation of the concept of burden of proof applicable in that jurisdiction and/or case, either during the oral instructions, in a written version of those instructions, or by both methods. The lawyers and the judge went over those instructions carefully to ensure that they were correct, because if they were not that's a potential issue for reversal on appeal, even ignoring the fact that at least the judge wants the jury to make a decision on proper grounds in the first place.
The definition the excused juror printed out underwent no such review, and wasn't going to appear in the trial record. So what would happen if it was wrong?
I dunno, though, it just seems like they could have done something new (at least new to the show) that would be just as engaging. Like debunking the professor's use of coconuts to power a radio on Gilligan's Island or something.
The Professor was a genius in the coconut-engineering arts, and I will not stand idly by while his good name is besmirched.
I challenge the Mythbusters to debunk that myth without resorting to pedantry.* Coconut milk is mildly acidic electrolytic solution. If you can power electronics using lemons and potatoes, you can power a radio using coconuts. Frankly, I don't think that it even constitutes a good challenge. Scale it up to charging the battery for the engine(s) on the S.S. Minnow and you might have something Mythbusters worthy.
*The power in these batteries comes from a redox reaction between the anode and cathode materials, rather than the food. You could power your radio with electrodes placed in saltwater rather than any of the lemons, potatoes, or coconuts and there's not going to be any make-it-or-break-it difference. However, coconut-engineering skills would have been more uniquely marketable to the likes of Tina Louise and Dawn Wells. Engineering might and business acumen all in one. Hail Roy Hinkley!
A law student who feels that they have no obligation to comply with the rules and regulations governing their intended practice of law. Why I am I not surprised.
This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not.
Yeah, you might want to take your own advice.
You may wish to consider that YANAL either. More importantly, you may wish to consider whether you should be giving out what clearly can be interpreted as legal advice at this fledgling stage of your career.
The best thing you can do is start to fight it, then negotiate for Namco to give you permission in exchange for a cut.
You cannot possibly have enough information to give out this advice. While most of your comments in the topic have been merely informative, for which I have much sympathy, this crosses well over the line. Knock it off.
More interestingly (to me, since I'm not dead (yet)), if an account is part of an estate in death, then how does that affect its status in life? Is it *my* property? And if so, what rights do I have to it beyond what Facebook provides in the license agreement? And if it's not my property in life, then how can it possibly be part of my estate in death?
Your debts are not "your property" in life or in death. Yet the executor of your estate has the ability by law to act for you in maintaining and settling those debts during the distribution of the estate. Your instructions as to how you wish to be memorialized/buried are not "your property" in life or in death. Yet the executor of your estate will more likely than not be authorized to carry out those instructions to the exclusion of the wishes of others.
Your estate includes not just property, but obligations, the ability to exercise legal rights, and a whole host of other activities which can be carried out by the estate entity in your stead. The family court will consider your wishes concerning the guardianship/adoption of your minor children, even though they certainly are not "your property." Your presumption that this is an either/or situation is flawed.
A list of ingredients and instructions for using them, just like rules for games or instructions for building a bird house do not generally qualify as "substantial literary expression" and generally are not completely "original works of authorship", and thus enjoy significantly decreased copyright protection.
No. The ingredients and sequence of adding them are not copyrightable. A bare set of instructions for combining ingredients or building a bird house are effectively not copyrightable (merger doctrine). An expressively explained article on how to make the food item from start to finish, or similarly explained and illustrated instructions on how to build the bird house, are quite copyrightable. When they are copied exactly there's not much of an argument to save you. You might want to look here.
However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.
Similarly, the rules for a game, if you're referring to the logical expression of what can or cannot be done, cannot be copyrighted. However, an expressively explained and/or illustrated description of the rules quite certainly can be. The expressive aspects of the game itself are quite clearly copyrightable. See In Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988).
Which is why the right way to do it is with a configuration setting that you help the user select at purchase/installation time and through user training. Yes, people don't want training, but that's the price of using a complicated feature rich application. Give people the option to
1) enable automatic remote kill
2) enable automatic remote kill prompting
3) disable it
4) enable it on sync
5) subscribe to push notifications of kill requests
Whereupon carriers will exercise the option to
1) require you to enable automatic remote kill
2) take your device to some other carrier
2a) that will not be one of the U.S.'s "big 4"
You are not the customer. The carrier is the customer -- they buy these phones in the tens of thousands. Any direct or even unsubsidized sales to you are an afterthought to a phone manufacturer. The carriers will like a remote kill switch. The carriers probably do not like your 5 options. Even if you are given your 5 options, the carriers will require that your option selection be reported to them by the phone, and exercise their options. Trust me.
"4" is not a process, machine, manufacture, or composition of matter. See 35 USC 101.
DNA, regardless of its information content, is a composition of matter.
To your main point concerning isolation: Michelangelo's David is a form that was already in the stone -- the artist is even reputed to have admitted as much. Accordingly, using your ideas all subtractive sculpture is unoriginal and undeserving of copyright.
Patents are granted for taking the raw stuff of nature and transforming it into new and useful tools. The isolated DNA is a new and useful tool in and of itself -- the researches who are named as plaintiffs in the lawsuit admit that in their complaint and arguments. The fact that the chemical compound that is the isolated DNA had to be cleved from thousands of other genes, regulatory structures, and other nucleobase detritus is more indicative of that compound being a work of man than a work of nature.
Show me where I can find a ratchet wrench, and I'll call it a discovery. On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.
Now show me where you can find the isolated gene, the isolated cDNA, or other forms of the gene (apart from a the unisolated form appearing among 2.9 million base pairs of material) that make the isolate useful for diagnostic testing, genetic and proteomic research, and the like.
Nobody has patented the gene as part of a functioning human being (or animal, or natural organism), yet that is what you're claiming already existed. You still need to get from the natural form to the isolated form and explain how that is "discovery" rather than something made by man before you have much of an argument.
Geoffrey Landis may think that the argument is completely silly, but the "discovery" counterargument is equal rubbish. "Gene patents" do not claim the gene. They claim isolated sequences of DNA, cDNA, and the like that are only made by man. The district court ignored that fact, disregarding the chemistry and focusing upon the "information" encoded by the chemical, and of course also within the genome, to say that genes are not even eligible for patenting. Neither the Federal Circuit nor the Supreme Court are going to buy that argument.
And having worked for the mobile phone company that has said forced arbitration, that was the favorite cause to beat customers around with when they say lawsuit. Not that anyone in customer care actually had any idea what the difference was between a lawsuit and arbitration was, just that 'we win automatically.'
There's nothing inherently wrong with mandatory arbitration -- it is a cheaper way to resolve a dispute than going to court. However, like all decisions, even one made by a judge or jury, the decisionmakers have inbuilt biases and/or philosophies (I have no desire to argue over semantics, thank you very much).
The problem with mass arbitration is that the ordinally sensible rules of arbitration are susceptible to gamesmanship, and the repeat player, i.e., in these cases the phone companies, have superior information that permits them to shift the odds of a favorable decision substantially towards them.
In normal binding arbitration, each side has some ability to shape the arbitrator by objecting to the randomly assigned arbitrator (if there is a single arbitrator), or some of the members of the panel (if there is a panel of 3, the usual but less common alternative).
Joe Schmoe may have been to arbitration once before in his life. He has no reason to object to an arbitrator that he doesn't know from Adam. MegaCorp keeps records of all its arbitration results. It knows that Arbitrator X rules against it in some non-trivial percentage of the cases before him/her. It objects in the hope of pulling another Arbitrator who is more favorable to it. Arbitrator X does not get paid for being an arbitrator in that case. Lather, rinse, and repeat. On average, the panels can be shifted to be more favorable to MegaCorp by strategic objection (object if record is unfavorable, do not if record is favorable), and Arbitrator X is not making nearly as good of a living as Arbitrator Y because he/she keeps getting removed from potential arbitrations. Arbitrator Y is making a good living due to a good record. You do not need to assign 'evil' motives to Arbitrator Y -- the pool of arbitrators will naturally enrich with those who are philosophically favorable to MegaCorp.
And that, my friends, is why one never ever agrees to binding arbitration involving a repeat player who is permitted to object without cause. Of course, if you are facing a take-it-or-leave-it situation where the practice pervades an entire industry, then you need to turn to those dirty interventionist liberals (says the generally libertarian lawyer -- individuals have liberties, corporations not so much).
You file suit in the defendants home jurisdiction. I realize that corporations love to venue shop, but you're supposed to file suit in the venue most convenient to the defendant in the case. I'm not sure how that came to be, but I suspect it had to do with not wanting to force somebody to settle because they couldn't afford to travel to court.
Absolutely wrong.
You file suit in your home jurisdiction, or in a jurisdiction that you think is neutral, but almost never in the defendant's home jurisdiction.
The court that you file suit in needs to have personal jurisdiction over the defendant, so in some cases you may be forced to sue in a defendant's home juristiction (e.g., if they never travel to or conduct business in your state). Large contracts frequently specify both choice of law and venue, in which case that issue is (mostly, for true negotiations) off the table. Venue can be transferred in other situations, but it's a balance of convenience, not for the mere convenience of the defendant.
Seemliness is relative. The party suing is the party that was allegedly injured. Forcing them into the other party's home jurisdiction is also unseemly.
If Joe Schmoe sues HP, is he supposed to sue in Delaware, or does your seemliness evaluation side with whoever isn't the corporation?
So I take it you aren't mad whenever someone slams a door in your face, after all you didn't sign a contract that he wouldn't.
Conversely, you would apparently become apoplectic if you signed a contract to fight in a boxing match and then got punched in the head in round 1.
Copyright and License OpenStreetMap is open data, licensed under the Creative Commons Attribution-ShareAlike 2.0 licence (CC-BY-SA).
You are free to copy, distribute, transmit and adapt our maps and data, as long as you credit OpenStreetMap and its contributors. If you alter or build upon our maps or data, you may distribute the result only under the same licence. The full legal code explains your rights and responsibilities.
That is the invitation that this project made. They 'signed a contract' that explicitly said that Bing could do exactly what it is doing. Not quite analogous to getting a door unexpectedly slammed in your face, now is it?
Legal != Moral. Just because something doesn't/have/ to be done doesn't mean it shouldn't be done.
Quite often, it does. Especially when you've sat down and written a detailed agreement that says this:
This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here.
Once you've taken the time to draw up (or adopt) a detailed contract or license, common courtesy is faithfully following the license. If your intentions and expectations for what your licensees are obligated to do in ordinary circumstances are not in the license, you have no basis to complain -- your failure was either your own responsibility or, even worse, duplicity. Serge Wroclawski chose the CCASA 2.0 license and marketed the heck out of the project using the moral authority of that license. If he wanted to to use a Open Source for the Little Guy, Screw the Man license, then he should have written one and lived with the inevitable criticism that the OSF and others would have heaped upon the project.
This circumstance is not at all like tipping. Tipping is a long established social norm that only applies in some settings. You may tip the waitstaff in a restaurant, but I'm willing to bet that you don't tip the counter worker at McDonalds, that you don't tip at restaurants that explicitly say that tips are not expected/required (why?), and that you don't tip the caterer that you've hired for your kid's graduation party (why?). As you've already acknowledged, you don't tip in restaurants where the facility says that the gratuity is included in the bill. However you want to characterize it, Secion 8(e) is a pretty clear statement that you're not in a 'tipping' situation. Custom is usually satisfied when you follow the written instructions given to you in a restaurant, and equally satisfied when you follow the written instructions given to you in a contact.
Projects cannot have their cake and eat it too. Plenty of software and data licenses, particularly old shareware licenses, very clearly laid out special requirements for commercial use. There is no excuse for not including such language in a license if that is the intended result. You and others are simply using 'common courtesy' as a convenient justification for a significant post-hoc change in the terms of the license based on the success of a particular user. That success doesn't place any additional burden on the project, unlike your order at a restaurant, so frankly I'm confused as to why you feel that any form of 'compensation' in excess of that requested in the license is either required or deserved.
Because, while the U.S. has not ratified any international treaties requiring the recognition and enfocement of foreign judgments, U.S. courts are frequently willing to enforce foreign judgments. A good example of the legal reasoning that allows this to happen is summarized here, although that case involved a U.S. judgment against a foreign national, rather than the reverse situation addressed by the SPEECH act.
The U.S. OSEC has posted a brief summary of the issue here.
Facebook is obliged by law to actively defend their trademark when the name of a competing product is similar and is in the same line of business. This is not a case where we can attribute any motivation to Facebook other than the fact that they're trying to carry out their legal obligations to retain their trademark. They risk losing the legal status of their trademark if they don't sue. Whether their claims are valid are for the courts to decide.
Facebook is legally obligated to defend the trademark "Facebook." Facebook is not legally obligated to attack any trademark of the form "****book," particularly when the "book" suffix is not unique to Facebook or even the primary point of distinction of the mark. See, for example, Yellowbook, or the numerous other examples that have been identified in these comments.
This is simply an example of a large corporation engaging the classic Apple tactic of eradicating all remotely similar trademarks by massive legal budget. Any reputable trademark practitioner looking at the legal issue apart from budgetary realities would predict that Facebook would lose a trademark infringement lawsuit based solely on similarity of services and the suffix "book."
[Y]ou guys don't really have a problem with Facebook here. What you guys have a problem with is the law that requires Facebook to do stuff like this.
There are only so many 4 letter words: 26^4 = 456976.
True.
Now demonstrate that your product is stifled if it cannot use a four letter name.
Or demonstrate that of the 217,180,147,158 possibilities for names of 8 characters or less, being denied access to approximately 3.9 million (registered trademarks, including dead registrations, so this is a very conservative number) is stifiling.
Heck, there are only 676 possibilities for two letter trademarks, so certainly you won't object if I sell you "GM" automotive parts that I've imported from some knock-off factory in Shenzhen. Apparently I can use Ford too, since that's a four letter name.
It's possible. But I have an alternative theory. This is the beginnings of legal action.
I've noted from my own experience in the past that where the US Government might fall behind, they tend to compensate with law. A script kiddie might get a chuckle out of having gotten away with logging in to IRC from a.gov address. But two years later, they may be shocked at having Feds showing up at their front door wanting them to go for a drive. Law is a long, laborious, and painstaking process. But as the Government is an entity of the law, they will use it to their best ability when all else fails.
The notion that sovereign nations can claim universal jurisdiction over war crimes and human rights violations is still controversial, although less so than it was 2-3 decades ago.
The notion that the United States can claim universal jurisdiction over the release of classified information, especially in this particular context, is probably not going to fly. If Wikileaks conspired with others to obtain the documents, there might be enough of a wedge to move foreign government officials (the Gary McKinnon situation comes to mind). If Wikileaks simply accepted the documents and published them, you can forget about it. The Wikileaks principals will have to avoid entering the U.S., since we apparently can't be bothered with civil liberties anymore*, but I don't think that any other government is politically suicidal enough to help the U.S. get ahold of them in the absence of a non-speech criminal act.
*I haven't formed an opinion one way or the other towards Wikileaks' original actions (I have one solid opinion - Assange is a total media whore), but it really irritates me when the U.S. Marshals Service is effectively strip searching the public and handing the photos off for utterly impermissible uses, and you have so many members of the political class lobbying the government to stop the construction of the "Ground Zero Mosque" by any means (BTW: it's clear that from the Federal government down to the NYC landmarks commission, there's not a single law or regulation that should prevent or could prevent the mosque from happening). If a government loses moral authority to enforce the law by refusing to follow the law, then the only authority that is has left is the threat of violence (seizure, imprisonment, whatever you prefer). That only works if you can catch the offenders, and our government hasn't achieved omnipotence quite yet.
The three common standards of proof are "preponderance of the evidence," "clear and convincing evidence," and "beyond a reasonable doubt." The first essentially boils down to it being more likely than not that the fact is true; the third is the classic televised standard in criminal cases (which is not as high as some on Slashdot believe); and the second is the subject of innumerous articles and court rulings because it's in the squishy middle. Burdens of proof establish permissible degrees of uncertainty concerning 'the absolute truth.' There are other standards of proof, but they tend to be lesser procedural hurdles intended to short circuit weak cases or undue intrusions on liberty.
A presumption is not a standard of proof. A presumption establishes who 'wins' in the event that no side satisfies the burden of proof. A presumption of innocence establishes that the defendant in a criminal case is innocent unless all of the elements of the criminal case have been proven beyond a reasonable doubt. A presumption of validity in a patent case establishes that the patent owner can collect damages from an infringer unless the patent is affirmatively shown to be invalid. Presumptions work against that ancient rhetorical trick, "prove that I'm wrong" (or "prove that you're not guilty," or what have you), where someone flips the burden of proof to the other side.
The court rulings referenced in the summary shouldn't come as a surprise to anyone. There are civil offenses such as parking violations, property maintenance violations, zoning violations, etc. and there are criminal offenses where you at least nominally risk some form of deprivation of liberty (conventionally, detention in a jail or prison). Almost all civil actions use the "preponderance of the evidence" standard, although statutes or courts occasionally require clear and convincing evidence. Essentially all criminal actions use "beyond a reasonable doubt," but that is not absolutely required -- it became a consensus in the U.S. well after the bill of rights was enacted. If you want to require your town to prove beyond a reasonable doubt to a jury that your neighbor let his grass grow taller than 12 inches, seek a change in the law, but you'll quickly find that it's unworkable.
The "presumption of innocence" angle is a canard. The "presumption of innocence" has a specific meaning which invokes the criminal law, right to jury, and "beyond a reasonable doubt" standard of proof. An abstract presumption of innocence still applies in these cases -- nobody is being fined without photographs of the vehicle and the violation.
As a side note, under some of these laws, nobody has to prove that the person being fined was driving the car. The fine is to the owner of the car (don't want a fine, don't let people borrow the car) or maybe even to the car. I don't practice in this area, so I can't point to specific laws. Constitutional protections are very narrow, despite appearances to the contrary. Most protections are established by statute and are political. If you don't like them, get up and change them.
I may be picking nits, but the DMCA makes NO specifications at all about what a company must or mustn't to when it receives a takedown notice. If I'm hosting a video which is clearly fair use, I don't have to take it down because I receive a takedown. It's just legally safer that way.
You're not picking nits -- you're so technically right that you're practically wrong.
The safe harbor only exists if "[the service provider] upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity." 17 USC 512(c)(1)(C).
You don't have to take advantage of the safe harbor provision. But if you don't, the copyright owner can bleed you dry. And don't think that corporate IP attorneys don't recognize that fact.
If you follow the DMCA, you can be sued. However, you can at worst wind up the trial stage with limited discovery and a summary judgment. The copyright owner faces a real challenge piercing the safe harbor -- as shown by the Viacom decision. You have no incentive to settle for any amount greater than the cost of defending yourself to this early conclusion, if you're inclined to settle at all.
If you do not follow the DMCA, you can be sued. Worse yet, even if you've decided that the video is fair use, you cannot limit discovery, and you are virtually certain to be unable to use summary judgment to avoid a trial on the merits. Fair use is a fact-based balancing test. Summary judgment can only be used where there is no reasonable factual dispute. If there's any resonable question of infringement instead of dair use, you're on your way to a trial and bench ruling or jury verdict. Also, unless the judge permits you to bifurcate issues like damages and willfulness, you're defending the whole enchilada at the same time. Infringement, damages, and enhancement. Your rational settlement number just became the costs of a complete defense, and a risk-of-loss-adjusted-number under at least one theory of copyright liability. Even worse, there's something to be said for the Vlad-the-Impaler logic of running someone through with their own legal costs. Think of SCO (acknowledging that they were, at first, the copyright aggressor), or a pre-Google YouTube running on venture capital without the shield of the safe harbor.
The first route is a cost you don't need. The second route is a cost you cannot afford.
For what it's worth, the Nexus One had similar problems... where's the lawsuit?
You merely assume that the problems are similar. Upon what are you basing the assumption?
Could you 'short' the antenna in the Nexus One merely by holding a phone in the 'wrong' way? No. Did the Nexus One signal drop by 24 dBm when you held it in your hand? No. Is the reception quantifyably worse than either the Nexus One or the previous generation iPhone? Yes.
A 10dBm drop compared to the iPhone 3GS is unacceptable when the primary function of the device is to serve as a wireless phone.
The lawyers suing Apple are not going to let it confuse the issue between absorptive signal loss due to coupling with a nearby hand, which indeed most phones are suspectible to, and antenna detuning due to galvanic conduction over an uncoated external antenna, which is a design decision worthy of a Gumby.
Slashdot Mirror
The inventor could not do this himself? BTW -- the grandparent said nothing about patents being intended to protect re-inventors. They are not and never were.
The evil twist being that they buy patents from inventors willing to sell their patents to them?
How is the intention to protect inventors thwarted by allowing inventors to sell their inventions to a business rather than develop a business themselves?
How is the intention to protect inventors thwarted by allowing them to sell to anyone who can meet their price, whether the business manufactures something under the patent or merely intends to license the patent to others?
You might as well wage war on "used car trolls." Evil businesses that buy used cars with no intention to drive the cars themselves, but instead to hold them hostage until some saintly individual needs to buy one to haul Grandma to church on Sundays.
A quick question for you to consider:
If you are a defendant in a criminal case, do you want the evidence brought against you, the interpretation of the law that is being applied against you, and any questions that the jury cannot decide for themselves based that evidence and interpretation to be available in an accurate record that you can cite in an appeal, or in a juror's cellphone browser history that walks out the door and never sees the light of day?
Yes, it is a loaded question, because if you had any experience with the legal system, you'd know that details like the rules of evidence, jury instructions, and the trial judge's handling of jury questions/special verdicts are critical in the attempt to ensure that jurors make decisions based on reliable and complete information in accordance with the law of that jurisdiction.
Wikipedia's definition of the term "burden of proof" is a mess, and even acknowledges that "The precise meaning of words such as 'reasonable' and 'doubt' are usually defined within jurisprudence of the applicable country." I will guarantee that the grandparent was given an explanation of the concept of burden of proof applicable in that jurisdiction and/or case, either during the oral instructions, in a written version of those instructions, or by both methods. The lawyers and the judge went over those instructions carefully to ensure that they were correct, because if they were not that's a potential issue for reversal on appeal, even ignoring the fact that at least the judge wants the jury to make a decision on proper grounds in the first place.
The definition the excused juror printed out underwent no such review, and wasn't going to appear in the trial record. So what would happen if it was wrong?
The Professor was a genius in the coconut-engineering arts, and I will not stand idly by while his good name is besmirched.
I challenge the Mythbusters to debunk that myth without resorting to pedantry.* Coconut milk is mildly acidic electrolytic solution. If you can power electronics using lemons and potatoes, you can power a radio using coconuts. Frankly, I don't think that it even constitutes a good challenge. Scale it up to charging the battery for the engine(s) on the S.S. Minnow and you might have something Mythbusters worthy.
*The power in these batteries comes from a redox reaction between the anode and cathode materials, rather than the food. You could power your radio with electrodes placed in saltwater rather than any of the lemons, potatoes, or coconuts and there's not going to be any make-it-or-break-it difference. However, coconut-engineering skills would have been more uniquely marketable to the likes of Tina Louise and Dawn Wells. Engineering might and business acumen all in one. Hail Roy Hinkley!
A law student who feels that they have no obligation to comply with the rules and regulations governing their intended practice of law. Why I am I not surprised.
You may wish to consider that YANAL either. More importantly, you may wish to consider whether you should be giving out what clearly can be interpreted as legal advice at this fledgling stage of your career.
You cannot possibly have enough information to give out this advice. While most of your comments in the topic have been merely informative, for which I have much sympathy, this crosses well over the line. Knock it off.
What makes you think that Facebook has a choice?
Your debts are not "your property" in life or in death. Yet the executor of your estate has the ability by law to act for you in maintaining and settling those debts during the distribution of the estate. Your instructions as to how you wish to be memorialized/buried are not "your property" in life or in death. Yet the executor of your estate will more likely than not be authorized to carry out those instructions to the exclusion of the wishes of others.
Your estate includes not just property, but obligations, the ability to exercise legal rights, and a whole host of other activities which can be carried out by the estate entity in your stead. The family court will consider your wishes concerning the guardianship/adoption of your minor children, even though they certainly are not "your property." Your presumption that this is an either/or situation is flawed.
No. The ingredients and sequence of adding them are not copyrightable. A bare set of instructions for combining ingredients or building a bird house are effectively not copyrightable (merger doctrine). An expressively explained article on how to make the food item from start to finish, or similarly explained and illustrated instructions on how to build the bird house, are quite copyrightable. When they are copied exactly there's not much of an argument to save you. You might want to look here.
Similarly, the rules for a game, if you're referring to the logical expression of what can or cannot be done, cannot be copyrighted. However, an expressively explained and/or illustrated description of the rules quite certainly can be. The expressive aspects of the game itself are quite clearly copyrightable. See In Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988).
Whereupon carriers will exercise the option to
1) require you to enable automatic remote kill
2) take your device to some other carrier
2a) that will not be one of the U.S.'s "big 4"
You are not the customer. The carrier is the customer -- they buy these phones in the tens of thousands. Any direct or even unsubsidized sales to you are an afterthought to a phone manufacturer. The carriers will like a remote kill switch. The carriers probably do not like your 5 options. Even if you are given your 5 options, the carriers will require that your option selection be reported to them by the phone, and exercise their options. Trust me.
"4" is not a process, machine, manufacture, or composition of matter. See 35 USC 101.
DNA, regardless of its information content, is a composition of matter.
To your main point concerning isolation: Michelangelo's David is a form that was already in the stone -- the artist is even reputed to have admitted as much. Accordingly, using your ideas all subtractive sculpture is unoriginal and undeserving of copyright.
Patents are granted for taking the raw stuff of nature and transforming it into new and useful tools. The isolated DNA is a new and useful tool in and of itself -- the researches who are named as plaintiffs in the lawsuit admit that in their complaint and arguments. The fact that the chemical compound that is the isolated DNA had to be cleved from thousands of other genes, regulatory structures, and other nucleobase detritus is more indicative of that compound being a work of man than a work of nature.
Now show me where you can find the isolated gene, the isolated cDNA, or other forms of the gene (apart from a the unisolated form appearing among 2.9 million base pairs of material) that make the isolate useful for diagnostic testing, genetic and proteomic research, and the like.
Nobody has patented the gene as part of a functioning human being (or animal, or natural organism), yet that is what you're claiming already existed. You still need to get from the natural form to the isolated form and explain how that is "discovery" rather than something made by man before you have much of an argument.
Geoffrey Landis may think that the argument is completely silly, but the "discovery" counterargument is equal rubbish. "Gene patents" do not claim the gene. They claim isolated sequences of DNA, cDNA, and the like that are only made by man. The district court ignored that fact, disregarding the chemistry and focusing upon the "information" encoded by the chemical, and of course also within the genome, to say that genes are not even eligible for patenting. Neither the Federal Circuit nor the Supreme Court are going to buy that argument.
There's nothing inherently wrong with mandatory arbitration -- it is a cheaper way to resolve a dispute than going to court. However, like all decisions, even one made by a judge or jury, the decisionmakers have inbuilt biases and/or philosophies (I have no desire to argue over semantics, thank you very much).
The problem with mass arbitration is that the ordinally sensible rules of arbitration are susceptible to gamesmanship, and the repeat player, i.e., in these cases the phone companies, have superior information that permits them to shift the odds of a favorable decision substantially towards them.
In normal binding arbitration, each side has some ability to shape the arbitrator by objecting to the randomly assigned arbitrator (if there is a single arbitrator), or some of the members of the panel (if there is a panel of 3, the usual but less common alternative).
Joe Schmoe may have been to arbitration once before in his life. He has no reason to object to an arbitrator that he doesn't know from Adam. MegaCorp keeps records of all its arbitration results. It knows that Arbitrator X rules against it in some non-trivial percentage of the cases before him/her. It objects in the hope of pulling another Arbitrator who is more favorable to it. Arbitrator X does not get paid for being an arbitrator in that case. Lather, rinse, and repeat. On average, the panels can be shifted to be more favorable to MegaCorp by strategic objection (object if record is unfavorable, do not if record is favorable), and Arbitrator X is not making nearly as good of a living as Arbitrator Y because he/she keeps getting removed from potential arbitrations. Arbitrator Y is making a good living due to a good record. You do not need to assign 'evil' motives to Arbitrator Y -- the pool of arbitrators will naturally enrich with those who are philosophically favorable to MegaCorp.
And that, my friends, is why one never ever agrees to binding arbitration involving a repeat player who is permitted to object without cause. Of course, if you are facing a take-it-or-leave-it situation where the practice pervades an entire industry, then you need to turn to those dirty interventionist liberals (says the generally libertarian lawyer -- individuals have liberties, corporations not so much).
SQRT(0.999...)
Absolutely wrong. You file suit in your home jurisdiction, or in a jurisdiction that you think is neutral, but almost never in the defendant's home jurisdiction. The court that you file suit in needs to have personal jurisdiction over the defendant, so in some cases you may be forced to sue in a defendant's home juristiction (e.g., if they never travel to or conduct business in your state). Large contracts frequently specify both choice of law and venue, in which case that issue is (mostly, for true negotiations) off the table. Venue can be transferred in other situations, but it's a balance of convenience, not for the mere convenience of the defendant. Seemliness is relative. The party suing is the party that was allegedly injured. Forcing them into the other party's home jurisdiction is also unseemly. If Joe Schmoe sues HP, is he supposed to sue in Delaware, or does your seemliness evaluation side with whoever isn't the corporation?
Conversely, you would apparently become apoplectic if you signed a contract to fight in a boxing match and then got punched in the head in round 1.
That is the invitation that this project made. They 'signed a contract' that explicitly said that Bing could do exactly what it is doing. Not quite analogous to getting a door unexpectedly slammed in your face, now is it?
Quite often, it does. Especially when you've sat down and written a detailed agreement that says this:
See Section 8, subsection e.
Once you've taken the time to draw up (or adopt) a detailed contract or license, common courtesy is faithfully following the license. If your intentions and expectations for what your licensees are obligated to do in ordinary circumstances are not in the license, you have no basis to complain -- your failure was either your own responsibility or, even worse, duplicity. Serge Wroclawski chose the CCASA 2.0 license and marketed the heck out of the project using the moral authority of that license. If he wanted to to use a Open Source for the Little Guy, Screw the Man license, then he should have written one and lived with the inevitable criticism that the OSF and others would have heaped upon the project.
This circumstance is not at all like tipping. Tipping is a long established social norm that only applies in some settings. You may tip the waitstaff in a restaurant, but I'm willing to bet that you don't tip the counter worker at McDonalds, that you don't tip at restaurants that explicitly say that tips are not expected/required (why?), and that you don't tip the caterer that you've hired for your kid's graduation party (why?). As you've already acknowledged, you don't tip in restaurants where the facility says that the gratuity is included in the bill. However you want to characterize it, Secion 8(e) is a pretty clear statement that you're not in a 'tipping' situation. Custom is usually satisfied when you follow the written instructions given to you in a restaurant, and equally satisfied when you follow the written instructions given to you in a contact.
Projects cannot have their cake and eat it too. Plenty of software and data licenses, particularly old shareware licenses, very clearly laid out special requirements for commercial use. There is no excuse for not including such language in a license if that is the intended result. You and others are simply using 'common courtesy' as a convenient justification for a significant post-hoc change in the terms of the license based on the success of a particular user. That success doesn't place any additional burden on the project, unlike your order at a restaurant, so frankly I'm confused as to why you feel that any form of 'compensation' in excess of that requested in the license is either required or deserved.
Because, while the U.S. has not ratified any international treaties requiring the recognition and enfocement of foreign judgments, U.S. courts are frequently willing to enforce foreign judgments. A good example of the legal reasoning that allows this to happen is summarized here, although that case involved a U.S. judgment against a foreign national, rather than the reverse situation addressed by the SPEECH act.
The U.S. OSEC has posted a brief summary of the issue here.
Facebook is legally obligated to defend the trademark "Facebook." Facebook is not legally obligated to attack any trademark of the form "****book," particularly when the "book" suffix is not unique to Facebook or even the primary point of distinction of the mark. See, for example, Yellowbook, or the numerous other examples that have been identified in these comments. This is simply an example of a large corporation engaging the classic Apple tactic of eradicating all remotely similar trademarks by massive legal budget. Any reputable trademark practitioner looking at the legal issue apart from budgetary realities would predict that Facebook would lose a trademark infringement lawsuit based solely on similarity of services and the suffix "book."
Citation needed. Statute and/or caselaw please.
True.
Now demonstrate that your product is stifled if it cannot use a four letter name.
Or demonstrate that of the 217,180,147,158 possibilities for names of 8 characters or less, being denied access to approximately 3.9 million (registered trademarks, including dead registrations, so this is a very conservative number) is stifiling.
Heck, there are only 676 possibilities for two letter trademarks, so certainly you won't object if I sell you "GM" automotive parts that I've imported from some knock-off factory in Shenzhen. Apparently I can use Ford too, since that's a four letter name.
Obsolete 2TB spinning platter device = $99.99
New hotness 640GB flash device = $14,500.00
Oh, well then... There's nothing really stopping me from being the next Governor of California. Jump on the bandwagon for my inevitable victory!
The notion that sovereign nations can claim universal jurisdiction over war crimes and human rights violations is still controversial, although less so than it was 2-3 decades ago.
The notion that the United States can claim universal jurisdiction over the release of classified information, especially in this particular context, is probably not going to fly. If Wikileaks conspired with others to obtain the documents, there might be enough of a wedge to move foreign government officials (the Gary McKinnon situation comes to mind). If Wikileaks simply accepted the documents and published them, you can forget about it. The Wikileaks principals will have to avoid entering the U.S., since we apparently can't be bothered with civil liberties anymore*, but I don't think that any other government is politically suicidal enough to help the U.S. get ahold of them in the absence of a non-speech criminal act.
*I haven't formed an opinion one way or the other towards Wikileaks' original actions (I have one solid opinion - Assange is a total media whore), but it really irritates me when the U.S. Marshals Service is effectively strip searching the public and handing the photos off for utterly impermissible uses, and you have so many members of the political class lobbying the government to stop the construction of the "Ground Zero Mosque" by any means (BTW: it's clear that from the Federal government down to the NYC landmarks commission, there's not a single law or regulation that should prevent or could prevent the mosque from happening). If a government loses moral authority to enforce the law by refusing to follow the law, then the only authority that is has left is the threat of violence (seizure, imprisonment, whatever you prefer). That only works if you can catch the offenders, and our government hasn't achieved omnipotence quite yet.
The three common standards of proof are "preponderance of the evidence," "clear and convincing evidence," and "beyond a reasonable doubt." The first essentially boils down to it being more likely than not that the fact is true; the third is the classic televised standard in criminal cases (which is not as high as some on Slashdot believe); and the second is the subject of innumerous articles and court rulings because it's in the squishy middle. Burdens of proof establish permissible degrees of uncertainty concerning 'the absolute truth.' There are other standards of proof, but they tend to be lesser procedural hurdles intended to short circuit weak cases or undue intrusions on liberty.
A presumption is not a standard of proof. A presumption establishes who 'wins' in the event that no side satisfies the burden of proof. A presumption of innocence establishes that the defendant in a criminal case is innocent unless all of the elements of the criminal case have been proven beyond a reasonable doubt. A presumption of validity in a patent case establishes that the patent owner can collect damages from an infringer unless the patent is affirmatively shown to be invalid. Presumptions work against that ancient rhetorical trick, "prove that I'm wrong" (or "prove that you're not guilty," or what have you), where someone flips the burden of proof to the other side.
The court rulings referenced in the summary shouldn't come as a surprise to anyone. There are civil offenses such as parking violations, property maintenance violations, zoning violations, etc. and there are criminal offenses where you at least nominally risk some form of deprivation of liberty (conventionally, detention in a jail or prison). Almost all civil actions use the "preponderance of the evidence" standard, although statutes or courts occasionally require clear and convincing evidence. Essentially all criminal actions use "beyond a reasonable doubt," but that is not absolutely required -- it became a consensus in the U.S. well after the bill of rights was enacted. If you want to require your town to prove beyond a reasonable doubt to a jury that your neighbor let his grass grow taller than 12 inches, seek a change in the law, but you'll quickly find that it's unworkable.
The "presumption of innocence" angle is a canard. The "presumption of innocence" has a specific meaning which invokes the criminal law, right to jury, and "beyond a reasonable doubt" standard of proof. An abstract presumption of innocence still applies in these cases -- nobody is being fined without photographs of the vehicle and the violation.
As a side note, under some of these laws, nobody has to prove that the person being fined was driving the car. The fine is to the owner of the car (don't want a fine, don't let people borrow the car) or maybe even to the car. I don't practice in this area, so I can't point to specific laws. Constitutional protections are very narrow, despite appearances to the contrary. Most protections are established by statute and are political. If you don't like them, get up and change them.
You're not picking nits -- you're so technically right that you're practically wrong.
The safe harbor only exists if "[the service provider] upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity." 17 USC 512(c)(1)(C).
You don't have to take advantage of the safe harbor provision. But if you don't, the copyright owner can bleed you dry. And don't think that corporate IP attorneys don't recognize that fact.
If you follow the DMCA, you can be sued. However, you can at worst wind up the trial stage with limited discovery and a summary judgment. The copyright owner faces a real challenge piercing the safe harbor -- as shown by the Viacom decision. You have no incentive to settle for any amount greater than the cost of defending yourself to this early conclusion, if you're inclined to settle at all.
If you do not follow the DMCA, you can be sued. Worse yet, even if you've decided that the video is fair use, you cannot limit discovery, and you are virtually certain to be unable to use summary judgment to avoid a trial on the merits. Fair use is a fact-based balancing test. Summary judgment can only be used where there is no reasonable factual dispute. If there's any resonable question of infringement instead of dair use, you're on your way to a trial and bench ruling or jury verdict. Also, unless the judge permits you to bifurcate issues like damages and willfulness, you're defending the whole enchilada at the same time. Infringement, damages, and enhancement. Your rational settlement number just became the costs of a complete defense, and a risk-of-loss-adjusted-number under at least one theory of copyright liability. Even worse, there's something to be said for the Vlad-the-Impaler logic of running someone through with their own legal costs. Think of SCO (acknowledging that they were, at first, the copyright aggressor), or a pre-Google YouTube running on venture capital without the shield of the safe harbor.
The first route is a cost you don't need. The second route is a cost you cannot afford.
You merely assume that the problems are similar. Upon what are you basing the assumption?
Could you 'short' the antenna in the Nexus One merely by holding a phone in the 'wrong' way? No.
Did the Nexus One signal drop by 24 dBm when you held it in your hand? No.
Is the reception quantifyably worse than either the Nexus One or the previous generation iPhone? Yes.
A 10dBm drop compared to the iPhone 3GS is unacceptable when the primary function of the device is to serve as a wireless phone.
The lawyers suing Apple are not going to let it confuse the issue between absorptive signal loss due to coupling with a nearby hand, which indeed most phones are suspectible to, and antenna detuning due to galvanic conduction over an uncoated external antenna, which is a design decision worthy of a Gumby.