So Macintosh hardware can do everything a Mac can do and everything a PC can do, making the Mac the superior hardware choice.
News flash. PC hardware can do everything a Mac can do and everything a PC can do, making crippled Mac operating software the inferior software choice. Please review the thousands of posts to the OSX86 project immediately after Apple released MacIntel hardware, and before they tightened down the screws on their software interface to TPM authentication.
"I haven't yet had a chance to read the article, or understand the details, but I'm guessing that the parents are indeed responsible of (at the least) neglect in the fact that they aren't policing the child's activities on the net. And if you are about to tell me that its an invasion of privacy, then you are far to liberal for me."
You guess?
What is the appropriate level of supervision for a generic high school student?
Is filtering software sufficient? Is a monthly review of their browser history (or an http traffic log) sufficient? Is a weekly review of a keylogger sufficient? Is daily review of a packet logger sufficient? Do you have to stand over your child's shoulder for every minute of time that they are on an internet connected computer?
What if the student hasn't done anything similar before?
You have no idea what level of supervision these children were under or whether anyone could have reasonably expected them to engage in that sort of behavior. Yours is the epitome of a result-based snap judgment.
Try this counter-factual situation on for size:
A child is threatened and hit by a normally "good" child on the school bus, in a school hallway, in a school classroom, etc. (whatever you like).
That's assault and battery. The school and school employees clearly have a duty to supervise both children. Should the parent of the hit child automatically be able to recover damages from the school for negligent supervision? Say yes, and you can pat yourself on the back for practically bankrupting K-12 education.
Parents are NOT responsible for their children's actions. Parents are responsible to failing to use reasonable efforts to prevent children with known propensities for doing something bad from doing those bad things, and to prevent children from engaging in otherwise expected types of bad behavior. Until you know facts similar to those that I've raised, you cannot make any sort of judgment as to whether the parents are responsible, i.e., as you're using the term, culpable, for their children's actions.
Actually, I don't think that I've overreacted.
The plaintiff has the burden of persuading the triar of fact that the 38 files infringe. The downloaded files and the list of files likely fulfill this burden, but it is a question of fact for the jury.
The defendant has the burden of producing rebuttal evidence that shows that the 38 files do not infringe. If the defendant cannot even argue that the 38 - 11 = 27 other files do not infringe, then there is no reason for a court to treat the 27 files any differently from the 11 that "the enforcer" actually downloaded. There is also little reason for a triar of fact to treat the 27 files any differently from the 11, in that "I didn't do these 11 bad things and you didn't meet your burden of proof that I did these other 27 bad things just like them" is a spectacularly weak argument for paring down damages in a civil case. If you're making that argument, you're praying for a compromise finding by a jury.
The burden of persuasion always lies with the plaintiff, but the defendant cannot pretend that the circumstantial evidence concerning the 27 other files doesn't exist. The Federal Rules of Evidence clearly allows both parties to argue facts based on circumstantial evidence. "B." is arguing that as a matter of law the plaintiff has to have actual possession of each and every sound file. Bollocks. That is the world-as-he-wishes-it-to-be, not the world that I live in.
Nevermind the fact that the actual argument in Lindor concerns a twisted sort of discovery violation, where the defendant's attorney is arguing that since the 27 other actual files were not produced in discovery, the plaintiff should be precluded from introducing the circumstantial evidence in support of its claim concerning those 27 files at trial. This motion is a creative bit of lawyering that is doomed to fail.
That's it. I've had enough of you.
I am a lawyer. I practice law. More to the point, I practice intellectual property law and litigation at a major regional law firm, and have litigated cases against the likes of General Electric. You do not know what you're talking about. I suggest that you expose your head to sunlight and read a textbook on the law of evidence under the Federal Rules, at a minimum, before you attempt to play Matlock.
They are asking for damages for 38 files so they should be able to show FOR EVERY INSTANCE that they are violations.
They are able to show that. Through the circumstantial evidence of the list. At this point, the defendant has to come back and show and those files are not what they purport to be, but something else that is presumably non-infringing.
It makes no sense to require the plaintiff to download every single file that a P2P user appears to be sharing. The defendant, if it is the correct party, is a participant in the case and the defendant, not the plaintiff, is the party in possession of, and likely the party most familiar with, the actual contents of those files.
If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.
I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.
Let's be quite clear 1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs. 2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags. 3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be. 4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.
The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.
I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.
Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.
Not only that, but H.264 (MPEG-4 Part 10, MPEG AVC) is already an open international standard (and, for those who don't know, one of the three mandatory supported codecs for all Blu-ray Disc (BD) and HD-DVD disc players - MPEG-2 and VC-1 are the other two).
While VC-1 (formerly known as VC-9, the Windows Media 9 (WMV3) codec) has been submitted to SMPTE, VC-1 is still not open, and must still go through the patent pool process, which itself is being administered by MPEG LA.
VC-1 is a SMPTE standard. VC-1 is equally open, in that anyone can create a VC-1 compliant codec pursuant to the standard and the terms of the licenses. You've also conveniently forgotten to mention that the authors of H.264 compliant codecs must obtain licenses from two patent pools, including MPEG LA and Via Licensing.
"Open" is not a magic word, and H.264 is not "free" in any sense of the term. The two codecs are legally equal from a 30,000 ft view, except for the existence of the open-source and quite probably patent infringing H.264 encoder X264.
No. The abstract of a patent does not tell what has been patented. Nor does the title, the detailed description, the background...
You have to read the claims.
1. A hand holdable electronic device for controlling imagery, comprising:
a housing sized to be hand-held;
electronic circuitry located in said housing;
a general image display located in said housing, said general image display operatively connected to said circuitry;
at least one finger depressible surface in part exposed on said housing, said at least one finger depressible surface operatively connected to
at least one pressure-sensitive analog sensor, said pressure-sensitive analog sensor for inputting a signal to said circuitry, said signal having variable value depending on variable pressure applied to said at least one finger depressible surface;
said circuitry structured to receive said signal and to cause said general image display to provide variable visual feedback data, said variable visual feedback data at least in part representing the variable pressure applied to said at least one finger depressible surface, whereby said variable visual feedback data may be controlled at varying rates according to variable pressure applied to said at least one finger depressible surface.
These seemingly obvious patents keep getting given out becuase they are figments of your imagination. The actual patented invention may be less obvious than you think.
# limited liability for negligence to the price of the product
If you agree a price and they accept then they can't later alter this so I fail to see too many problems
Your Dell laptop explodes due to a faulty lithium ion battery and burns down your house. Dell's liability is limited to the price of the laptop. I see a problem.
# excluded liability for consequential loss arising out of breach of contract
This might need looking at although I can't imagine too much which could go wrong, if the product isn't of a merchandisable quality then you can get your money back anyway (because of the statutory rights) - there are also rights to protect you from misleading advertising - if they fail to deliver then you can simply get your money back without too much trouble.
Consequential damages may be but are not necessarily related to warranties of merchantability and/or truth in advertising. Dell sells you 50 rack mount servers for a video production project that starts on 8/7/2006 and promises a delivery date of 8/1/2006. Dell fails to deliver the servers until two months after the delivery date. You've lost 7 weeks of production time. Those weeks of delay may be compensable as consequential damages.
# excluded liability for oral representations not confirmed in writing, and
No contract is worth anything if it is not in writing so I can't see how this is a problem.
The Statute of Frauds says otherwise. The common law says otherwise. There are plenty of ways to prove the existence of a contract that do not rely on a signed writing. I find it odd that you believe that Dell can make such representations and simultaneously protect itself from liability for making them.
# required the consumer to notify Dell of any errors in its confirmation of the consumer's order immediately
You'd expect this anyway, if they refuse to help then cancel because it is within your cooling off period
I would not expect this at all. The consumer makes an offer for a specified piece of equipment. Dell purports to accept the offer but specifies different equipment. Under the law of contracts the consumer is not obligated to do anything because Dell has failed to accept the original offer, and in fact made a counteroffer (mirror image rule). The professional sales organization shifts the effort required to catch and correct errors onto the consumer. You believe that this is equitable?
Actually, you would avoid http://slashdot.org/comments.pl?sid=185103&cid=152 78628>making a material misrepresentation of fact or law, or omitting a fact necessary to make the statement considered as a whole not materially misleading. The legal advice disclaimer is at best a shield from potential malpractice liability, not an excuse to hide from the consequences of your own commentary after you've already stuck your foot in it.
Assisting someone to break contract is also illegal.
Actually, inducing someone to break a contract is a tort.
Benefiting from someone's decision to break a contract, in general, is neither illegal nor a tort. If someone who signed an agreement with Apple regarding the service manual submitted the picture to SA to contribute to the discussion, that someone may have breached a contract and become liable, but SA is likely not. To be liable, in general, SA would have had to
1. have knowledge of that contractual relationship 2. intend to induce a party to the contract to breach the contract 3. lack any privilege to induce such a breach, and 4. caused damage to the party against whom the breach occurred
You're going to have a hard time proving elements 1, 2 and 4. Especially item 4, since you would not be arguing about direct damages, but rather indirect and/or consequential damages.
Your doctor and patient hypothetical does not prove your point. How can the patient sue the newspaper under the contract when the newspaper isn't part of the contract? It's a poor example because the right to privacy and medical privacy laws are layered over the whole problem, and have nothing to do with the SA/Apple situation.
Sorry, but it is my business when someone misrepresents the law.
The sec. 107 balancing test is so lopsided in these facts that it is a virtual certainty that this is not copyright infringement, but an example of non-commercial fair use.
I was simply curious whether you had any qualifications to state otherwise. Obviously, you do not.
Please discuss with reference to your legal education and bar admissions.
Re:Nanotech bounding forth with no safety concerns
on
Nanotech Gone Awry?
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· Score: 5, Insightful
Eric Drexler's Engines of Creation , an exhaustive exploration of the possibilities and risks of nanotechnology, speculates about a grey goo scenario where the exponential growth of out-of-control nanobots overtakes the world.
"Thus the first replicator assembles a copy in one thousand seconds, the two replicators then build two more in the next thousand seconds, the four build another four, and the eight build another eight. At the end of ten hours, there are not thirty-six new replicators, but over 68 billion. In less than a day, they would weigh a ton; in less than two days, they would outweigh the Earth; in another four hours, they would exceed the mass of the Sun and all the planets combined - if the bottle of chemicals hadn't run dry long before."
We already have nanomachines that replicate themselves every 1000 seconds or less (that's a doubling time of roughly 17 minutes). They're called bacteria. We use them to treat sewage, alter milk into cheese, and produce synthetic insulin feedstock, along with several thousand other uses. Some of these applications have been in existence for most of recorded history. Startlingly, the Earth has not been converted into bacteria.
The Grey Goo argument is an interesting layman's theory that falls apart if you give it any real thought. You cannot build a self-replicating machine out of simply anything. The machine will rely on critical "nutrients", whether they are nitrogen, phosphorous, or copper, that simply aren't available in large quantities in much of the environment. The machine will also require a readily available energy source, which ultimately means solar power since life does a reasonable job of exhausting chemical based energy sources on the surface of the planet.
Face it, evolution favors favors fast replication, efficient resource utilization, and wide geographic distribution. In four billion years, using technology that we can just barely duplicate (mostly by scavenging parts from nature), evolution has created -- TADA! -- algae and pseudomonas (for example). The last time I checked, these self replicating micromachines weren't threatening to turn my house into more algae and pseudomonas at any significant rate.
Grey goo is a nice science fiction story, but frankly it's never going to happen. If you want to fear deadly self-replicating nanomachines bringing an end to civilization, then you need to focus on infectious diseases (mostly viruses) like the rest of the highly educated public.
Trademark is not copyright. Trademarks do not have to be coined words.
Coined words are generally inherently distinctive, and prima facie registerable as trademarks, because they did not exist prior to the creation of the mark. Escalator did not "mean" moving stairs before the Escalator company created and trademarked the term. However, that it not the end of the discussion.
You can also take preexisting works and use them arbitrarily, like using Apple as a brand for computers. You can use them suggestively, like using AutoMeter as a brand for after market gauges for cars, like speedometers, tachometers, etc. You can also use them descriptively, if you can show that the use has acquired distinctiveness in association with the goods that you are selling. McDonald's is a famous example where the use was initially descriptive, acquired distinctiveness, and ultimately became a famous mark.
Consumers don't need trademarks to help them decide if a product is good -- the just need honest retailers.
Really? How do you propose to create this world of "honest retailers"? There are 50 Attorneys General that would love to hear your innovative ideas. eBay is hiring as well.
Would your local major chain grocery store sell a knock off Coca Cola with the same logo? I doubt it -- especially if Coca Cola said they'd stop selling to them.
That's a simplistic view of the supply chain and vendor networks. Do you suppose that every grocery chain buys directly from Coca Cola? Who supplies the vending machines in your building? Let's talk about the computer parts market, and how various RAM chips have widely varying quality yet are traded back and forth like coins-of-the-realm, repackaged as DIMMs, sold to distributors, and then retailers, and then consumers, and then to another consumer as used equipment...
If some retailers decide they'll buy the lower quality Coca Cola knock off, noting prevents Coca Cola from making new ways to prove you're buying the real thing (holograms, higher quality packing, etc).
Nothing prevents others from copying those ways, and they add expense that ultimately comes out of the consumers' pockets. Microsoft has gone about as far as you can go, and yet counterfeit product is rampant. How do you determine that you've bought the real thing in this situation? You discover after you've bought it that it is unsupported, shoddy, underspec, and then the fun of returns, disputes, and lawsuits begin.
You've convinced me. Trademarks certainly are unnecessary and useless.
Copyright and patents and trademarks were intended to protect for a very short period of time so the creator and only the creator can make enough profit to keep food on the table. Today, that government force is only profitable for those powerful enough to control all the distribution cycles.
Trademarks were never "intended to protect for a very short period of time so the creator and only the creator can make enough profit..."
Trademarks are protected because they provide a socially valuable service. Trademarks provide a shorthand that permits consumers to identify the source of a good, and thereby associate the good with characteristics such as quality, economy, performance, etc. (or the lack thereof). Kodak, Fuji, Coca-cola, Pepsi... none of these marks is protected simply by virtue of their creation. They are protected because they are used to identify particular goods that are actually sold in commerce.
Trademarks are protected because people like Michael Dell have spent decades creating distinctive brands of merchandise, and consumers would be confused and/or deceived if others were to suddenly start up businesses selling "Dell" electronics to you and I. Trademarks are protected because consumers lose when they have to spend additional time researching whether they are purchasing a bona fide product that they want, or a counterfeit product that they probably do not want.
Trademarks incidentally protect the "creator", because they are the embodiment of the seller's reputation and goodwill. Even if a consumer wants to purchase a counterfeit good, that good is not sold by the "creator" and typically shoddy, which confuses other consumers about the source of the good, the quality, economy, and performance of the good, and denigrates "creator's" business reputation. Trademark law is intended to eliminate that unwarranted confusion.
If Coca-cola continues to be sold for the next two centuries, then the trademark will continue to be enforceable for the next two centuries, because the confusion caused by my rip-off of Coca-cola would always serve to harm the consumer. I have no particular opinion concerning the Marvel/DC mark, but I certainly have an opinion concerning this fairy tale of trademark-as-copyright.
The patent issued on 2/15/2005. The patent was filed on 10/21/1999. There is no disclosed priority date that predates the filing of the U.S. application.
To "qualify as prior art"*, someone would have to show that the claimed invention was "known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent." (35 U.S.C. 102(a)). Since you cannot know when the claimed subject matter was invented simply by looking at this patent document, you cannot simply look for anything published prior to 10/21/1999. You must look for the earliest references that you can find, and if the only art you can locate is within a year of this date, there is a reasonable chance that you are throwing your money away challenging the patent.
More commonly, someone could also show that the claimed invention was "patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." (35 U.S.C. 102(b)). This provides you with a known date to beat, 10/21/1998, and ensures that the examiner in a reexamination or the judge in a court proceeding will reach the meat of whether or not the claim is anticipated and/or obvious.
The subject matter of this patent could very well have been sold to the public prior to 10/21/1999 and not be prior art. It could have been sold in the U.S. from 10/21/1998 onwards and not be prior art. It could have been sold in Canada in the early 1990s and it would not be prior art, at least in the United States. Posters on Slashdot use "prior art" the way my parents use "CPU" to refer to the entire big beige box. Stop and think about how you think about people like my parents. Then sit down and take some time to actually read the patent statute.
*Things do not "qualify as prior art" simply because they occurred on a particular date. 35 U.S.C. 102 has a rather extensive list of what is and what is not prior art, and at what time prior art events have to have occurred. There are five more subsections that are even more complex, in general, than the ones cited above.
I see a GPL that prevents companies from using DRM (which wasn't around for v2) to get around GPL requirements. Basically those same requirements that we liked from v2.
The GPL does not require the licensor to allow the licensee to run modified code on particular hardware. It is not there, ergo it is not a requirement.
Arguments that it was an unintentional or unenvisioned loophole are wholly unpersuasive. RMS was fully aware that compiled code could be burned onto a PROM and incorporated into a hardware device to create a closed platform when he conceived of the GPL concept (whichever version you care to cite prior to the v3 draft). RMS was perfectly aware that the Xerox printer driver that so incensed him interfaced with Xerox printer software built into the printer. RMS, like most technically oriented computer users, also had to be aware that the PostScript software installed in various printers was more than simple firmware. RMS had ample opportunity to write the license that he intended, and he did not write the license that ought-to-have-been. Whatever his current stance, the license-that-is is the license that has gained such popularity and it now has a life independent of RMS and others of like mind.
You may not see a negative, but the business community certainly does. Considering that the business community is the one paying for support for GPLed software and purchasing GPL products, I fully expect to see GPL v2 versions of any commercializable collaborative apps exist far into the future. Whether you release particular code under GPL v3 or not, others can examine the code, document its interfaces, describe its processes, and rewrite it under GPL v2. Give RMS credit where credit is due, because he has created a software license that even he himself cannot defeat.
Like I said before, I disagree in theory. However, in practice you're right. The cards would have to have a PCI express-like card-to-card bus to bypass the AGP return data rate limitation (and being handed off across independent busses), but I believe that existing PCI express cards are using the card-to-card link for almost the same purpose (to keep from passing data back through the PCI express switch). In the case of a PCI express card, it's probably just a matter of dedicating a portion of the lanes supported by the GPU to the link. In the case of an AGP card, it would require a wholly different type of bus tacked on in addition to the AGP circuitry, which would make it cost prohibitive and/or impractical.
BTW: According to an NVIDIA GPGPU presentation the AGP return data path in an AGP 8X bus runs at 1/3rd the data rate of the send data path (page 51 of 52). These same people claim that AGP 8X transfers 2.1GB/sec, which means that the AGP 8X return path is around 700MB/sec, which is slightly slower than the 64 bit 133 MHz PCI-X bus (~1064MB/sec). When the graphics people claim that the bus crawls, just remember that their view of bus speeds is jaded in comparison to most.
AGP is a one-way architecture - the motherboard sends data to the graphics card, the graphics card processes it and sends it to the monitor. The limitations of this way of working are why dual graphics card solutions were never practical on AGP once you started increasing the complexity of the data - the bus wasn't capable enough.
No.
AGP is a two-way, point to point architecture that has a single master and a single target. Data can be written to and read from the graphics card memory, but you can't exercise the full range of PCI I/O operations. The data transfer rates are asymmetric, with sending data to the card greatly favored over reading data from the card, but they are most certainly two-way.
The SLI argument is a lesser error, if you would even call it that. You could have, but never as far as I know actually did have two AGP busses in a system. Thus I suspect that it would have been possible to do SLI with AGP, especially when you consider that existing implementations of SLI require an additional card-to-card link, which means (likely, this last part is speculation) that there is very little return data being transmitted from the cards back to the PCI express switch beyond that which you would see in a single card system, whether it is PCI express based or AGP based.
Your lawyer is correct. An invention does not actually have to exist in a physical sense, and there does not have to be a working proof of concept. There are two thresholds of invention for patentability:
1. Actual reduction to practice - you build it, and it works for its intended purpose.
2. Constructive reduction to practice - you file a patent application that contains a description that teaches someone of ordinary skill in the art how to make and use the invention (and satisfies the other requirements of 35 U.S.C. sec. 112).
The first consists of "I built it", the second consists of "I could've built it, but I didn't." In both cases, the application is required to be detailed and accurate enough to teach others how to make and use the invention, and since that's the policy goal, it's immaterial whether there's a working model or not.
You cannot call dibs on an invention. You either have intellectual possession of the invention when you file the application, or you do not. That being said, you are free to disclose and claim an imperfect invention, which would prevent anyone else from selling perfected versions of the invention that rely on your inventive concept. That's perfectly fair, because the improvements are either obvious once the concept becomes known (so why is the perfected form patentable but the imperfect form not?) or themselves patentable, in which case the original inventor can prevent later comers from selling the improved invention, but the inventors of the improvements can prevent the original inventor from selling the improved invention as well, leaving the imperfect embodiment. That conflict is at least one of the driving forces behind the cross-licensing of patents.
Besides FISA, I am unaware of any statute or order that allows the threshold of "probable cause" to be lowered when the police seek to access data held by a third party that is unwilling to surrender it.
Besides, your theory does not explain why the data could not be deleted sooner than 30 days, since you're asserting that the legal status changes after 30 days.
In any case, the article says
Google intends to delete the information shortly after the electronic handoff, and will never retain anything from a user's hard drive for more than 30 days, said Sundar Pichai, director of product management.
I am willing to believe that Google would not intentionally misstate its policy in public. The PR and legal consequences would be interesting if they did, to say the least.
I suspect that the 30 day requirement is a matter of technical feasibility rather than "evil intentions." I seem to recall Google announcing that it could not guarantee that email deleted from Gmail would be deleted from Google's data storage system, at least immediately. When you consider how much redundant storage Google holds, and how that storage is distributed around the world, the 30 day provision may be more of a CYA from legal liability.
The policy may very well translate into "We will make a best effort to delete the information when you instruct us to do so, but we will only guarantee that the information will be deleted within 30 days."
I realize that the public tends to focus on the "monopoly" aspect of antitrust law, but there are other sections of the Sherman Antitrust Act, for example in this case:
"Section 1
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."
The analysis is certainly more complex than this, but I'd be willing to bet that an enterprising attorney could construct a suit based on a section 1 violation, because it's practically impossible to argue that Intel and Skype lack market power in the VOIP field. I'm not saying that it would necessarily succeed, but you cannot claim "not a monopoly, therefor not regulated by antitrust law."
Slashdot Mirror
So Macintosh hardware can do everything a Mac can do and everything a PC can do, making the Mac the superior hardware choice. News flash. PC hardware can do everything a Mac can do and everything a PC can do, making crippled Mac operating software the inferior software choice. Please review the thousands of posts to the OSX86 project immediately after Apple released MacIntel hardware, and before they tightened down the screws on their software interface to TPM authentication.
"I haven't yet had a chance to read the article, or understand the details, but I'm guessing that the parents are indeed responsible of (at the least) neglect in the fact that they aren't policing the child's activities on the net. And if you are about to tell me that its an invasion of privacy, then you are far to liberal for me."
You guess?
What is the appropriate level of supervision for a generic high school student?
Is filtering software sufficient?
Is a monthly review of their browser history (or an http traffic log) sufficient?
Is a weekly review of a keylogger sufficient?
Is daily review of a packet logger sufficient?
Do you have to stand over your child's shoulder for every minute of time that they are on an internet connected computer?
What if the student hasn't done anything similar before?
You have no idea what level of supervision these children were under or whether anyone could have reasonably expected them to engage in that sort of behavior. Yours is the epitome of a result-based snap judgment.
Try this counter-factual situation on for size:
A child is threatened and hit by a normally "good" child on the school bus, in a school hallway, in a school classroom, etc. (whatever you like).
That's assault and battery. The school and school employees clearly have a duty to supervise both children. Should the parent of the hit child automatically be able to recover damages from the school for negligent supervision? Say yes, and you can pat yourself on the back for practically bankrupting K-12 education.
Parents are NOT responsible for their children's actions. Parents are responsible to failing to use reasonable efforts to prevent children with known propensities for doing something bad from doing those bad things, and to prevent children from engaging in otherwise expected types of bad behavior. Until you know facts similar to those that I've raised, you cannot make any sort of judgment as to whether the parents are responsible, i.e., as you're using the term, culpable, for their children's actions.
Actually, I don't think that I've overreacted. The plaintiff has the burden of persuading the triar of fact that the 38 files infringe. The downloaded files and the list of files likely fulfill this burden, but it is a question of fact for the jury. The defendant has the burden of producing rebuttal evidence that shows that the 38 files do not infringe. If the defendant cannot even argue that the 38 - 11 = 27 other files do not infringe, then there is no reason for a court to treat the 27 files any differently from the 11 that "the enforcer" actually downloaded. There is also little reason for a triar of fact to treat the 27 files any differently from the 11, in that "I didn't do these 11 bad things and you didn't meet your burden of proof that I did these other 27 bad things just like them" is a spectacularly weak argument for paring down damages in a civil case. If you're making that argument, you're praying for a compromise finding by a jury. The burden of persuasion always lies with the plaintiff, but the defendant cannot pretend that the circumstantial evidence concerning the 27 other files doesn't exist. The Federal Rules of Evidence clearly allows both parties to argue facts based on circumstantial evidence. "B." is arguing that as a matter of law the plaintiff has to have actual possession of each and every sound file. Bollocks. That is the world-as-he-wishes-it-to-be, not the world that I live in. Nevermind the fact that the actual argument in Lindor concerns a twisted sort of discovery violation, where the defendant's attorney is arguing that since the 27 other actual files were not produced in discovery, the plaintiff should be precluded from introducing the circumstantial evidence in support of its claim concerning those 27 files at trial. This motion is a creative bit of lawyering that is doomed to fail.
That's it. I've had enough of you. I am a lawyer. I practice law. More to the point, I practice intellectual property law and litigation at a major regional law firm, and have litigated cases against the likes of General Electric. You do not know what you're talking about. I suggest that you expose your head to sunlight and read a textbook on the law of evidence under the Federal Rules, at a minimum, before you attempt to play Matlock.
They are asking for damages for 38 files so they should be able to show FOR EVERY INSTANCE that they are violations. They are able to show that. Through the circumstantial evidence of the list. At this point, the defendant has to come back and show and those files are not what they purport to be, but something else that is presumably non-infringing. It makes no sense to require the plaintiff to download every single file that a P2P user appears to be sharing. The defendant, if it is the correct party, is a participant in the case and the defendant, not the plaintiff, is the party in possession of, and likely the party most familiar with, the actual contents of those files.
If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.
I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.
Let's be quite clear
1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs.
2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags.
3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be.
4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.
The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.
I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.
Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.
Not only that, but H.264 (MPEG-4 Part 10, MPEG AVC) is already an open international standard (and, for those who don't know, one of the three mandatory supported codecs for all Blu-ray Disc (BD) and HD-DVD disc players - MPEG-2 and VC-1 are the other two).
While VC-1 (formerly known as VC-9, the Windows Media 9 (WMV3) codec) has been submitted to SMPTE, VC-1 is still not open, and must still go through the patent pool process, which itself is being administered by MPEG LA.
VC-1 is a SMPTE standard. VC-1 is equally open, in that anyone can create a VC-1 compliant codec pursuant to the standard and the terms of the licenses. You've also conveniently forgotten to mention that the authors of H.264 compliant codecs must obtain licenses from two patent pools, including MPEG LA and Via Licensing.
"Open" is not a magic word, and H.264 is not "free" in any sense of the term. The two codecs are legally equal from a 30,000 ft view, except for the existence of the open-source and quite probably patent infringing H.264 encoder X264.
No. The abstract of a patent does not tell what has been patented. Nor does the title, the detailed description, the background...
You have to read the claims.
1. A hand holdable electronic device for controlling imagery, comprising:
a housing sized to be hand-held;
electronic circuitry located in said housing;
a general image display located in said housing, said general image display operatively connected to said circuitry;
at least one finger depressible surface in part exposed on said housing, said at least one finger depressible surface operatively connected to
at least one pressure-sensitive analog sensor, said pressure-sensitive analog sensor for inputting a signal to said circuitry, said signal having variable value depending on variable pressure applied to said at least one finger depressible surface;
said circuitry structured to receive said signal and to cause said general image display to provide variable visual feedback data, said variable visual feedback data at least in part representing the variable pressure applied to said at least one finger depressible surface, whereby said variable visual feedback data may be controlled at varying rates according to variable pressure applied to said at least one finger depressible surface.
These seemingly obvious patents keep getting given out becuase they are figments of your imagination. The actual patented invention may be less obvious than you think.
# limited liability for negligence to the price of the product
If you agree a price and they accept then they can't later alter this so I fail to see too many problems
Your Dell laptop explodes due to a faulty lithium ion battery and burns down your house. Dell's liability is limited to the price of the laptop. I see a problem.
# excluded liability for consequential loss arising out of breach of contract
This might need looking at although I can't imagine too much which could go wrong, if the product isn't of a merchandisable quality then you can get your money back anyway (because of the statutory rights) - there are also rights to protect you from misleading advertising - if they fail to deliver then you can simply get your money back without too much trouble.
Consequential damages may be but are not necessarily related to warranties of merchantability and/or truth in advertising. Dell sells you 50 rack mount servers for a video production project that starts on 8/7/2006 and promises a delivery date of 8/1/2006. Dell fails to deliver the servers until two months after the delivery date. You've lost 7 weeks of production time. Those weeks of delay may be compensable as consequential damages.
# excluded liability for oral representations not confirmed in writing, and
No contract is worth anything if it is not in writing so I can't see how this is a problem.
The Statute of Frauds says otherwise. The common law says otherwise. There are plenty of ways to prove the existence of a contract that do not rely on a signed writing. I find it odd that you believe that Dell can make such representations and simultaneously protect itself from liability for making them.
# required the consumer to notify Dell of any errors in its confirmation of the consumer's order immediately
You'd expect this anyway, if they refuse to help then cancel because it is within your cooling off period
I would not expect this at all. The consumer makes an offer for a specified piece of equipment. Dell purports to accept the offer but specifies different equipment. Under the law of contracts the consumer is not obligated to do anything because Dell has failed to accept the original offer, and in fact made a counteroffer (mirror image rule). The professional sales organization shifts the effort required to catch and correct errors onto the consumer. You believe that this is equitable?
Four strikes. You're out.
Actually, you would avoid http://slashdot.org/comments.pl?sid=185103&cid=152 78628>making a material misrepresentation of fact or law, or omitting a fact necessary to make the statement considered as a whole not materially misleading. The legal advice disclaimer is at best a shield from potential malpractice liability, not an excuse to hide from the consequences of your own commentary after you've already stuck your foot in it.
Assisting someone to break contract is also illegal.
Actually, inducing someone to break a contract is a tort.
Benefiting from someone's decision to break a contract, in general, is neither illegal nor a tort. If someone who signed an agreement with Apple regarding the service manual submitted the picture to SA to contribute to the discussion, that someone may have breached a contract and become liable, but SA is likely not. To be liable, in general, SA would have had to
1. have knowledge of that contractual relationship
2. intend to induce a party to the contract to breach the contract
3. lack any privilege to induce such a breach, and
4. caused damage to the party against whom the breach occurred
You're going to have a hard time proving elements 1, 2 and 4. Especially item 4, since you would not be arguing about direct damages, but rather indirect and/or consequential damages.
Your doctor and patient hypothetical does not prove your point. How can the patient sue the newspaper under the contract when the newspaper isn't part of the contract? It's a poor example because the right to privacy and medical privacy laws are layered over the whole problem, and have nothing to do with the SA/Apple situation.
Sorry, but it is my business when someone misrepresents the law.
The sec. 107 balancing test is so lopsided in these facts that it is a virtual certainty that this is not copyright infringement, but an example of non-commercial fair use.
I was simply curious whether you had any qualifications to state otherwise. Obviously, you do not.
Unauthorized reprint of a manual.
Unauthorized reprint of at most a single page from a manual.
A take down notice due to valid infringement?
17 U.S.C. 107
Please discuss with reference to your legal education and bar admissions.
We already have nanomachines that replicate themselves every 1000 seconds or less (that's a doubling time of roughly 17 minutes). They're called bacteria. We use them to treat sewage, alter milk into cheese, and produce synthetic insulin feedstock, along with several thousand other uses. Some of these applications have been in existence for most of recorded history. Startlingly, the Earth has not been converted into bacteria.
The Grey Goo argument is an interesting layman's theory that falls apart if you give it any real thought. You cannot build a self-replicating machine out of simply anything. The machine will rely on critical "nutrients", whether they are nitrogen, phosphorous, or copper, that simply aren't available in large quantities in much of the environment. The machine will also require a readily available energy source, which ultimately means solar power since life does a reasonable job of exhausting chemical based energy sources on the surface of the planet.
Face it, evolution favors favors fast replication, efficient resource utilization, and wide geographic distribution. In four billion years, using technology that we can just barely duplicate (mostly by scavenging parts from nature), evolution has created -- TADA! -- algae and pseudomonas (for example). The last time I checked, these self replicating micromachines weren't threatening to turn my house into more algae and pseudomonas at any significant rate.
Grey goo is a nice science fiction story, but frankly it's never going to happen. If you want to fear deadly self-replicating nanomachines bringing an end to civilization, then you need to focus on infectious diseases (mostly viruses) like the rest of the highly educated public.
Trademark is not copyright. Trademarks do not have to be coined words.
Coined words are generally inherently distinctive, and prima facie registerable as trademarks, because they did not exist prior to the creation of the mark. Escalator did not "mean" moving stairs before the Escalator company created and trademarked the term. However, that it not the end of the discussion.
You can also take preexisting works and use them arbitrarily, like using Apple as a brand for computers. You can use them suggestively, like using AutoMeter as a brand for after market gauges for cars, like speedometers, tachometers, etc. You can also use them descriptively, if you can show that the use has acquired distinctiveness in association with the goods that you are selling. McDonald's is a famous example where the use was initially descriptive, acquired distinctiveness, and ultimately became a famous mark.
Consumers don't need trademarks to help them decide if a product is good -- the just need honest retailers.
Really? How do you propose to create this world of "honest retailers"? There are 50 Attorneys General that would love to hear your innovative ideas. eBay is hiring as well.
Would your local major chain grocery store sell a knock off Coca Cola with the same logo? I doubt it -- especially if Coca Cola said they'd stop selling to them.
That's a simplistic view of the supply chain and vendor networks. Do you suppose that every grocery chain buys directly from Coca Cola? Who supplies the vending machines in your building? Let's talk about the computer parts market, and how various RAM chips have widely varying quality yet are traded back and forth like coins-of-the-realm, repackaged as DIMMs, sold to distributors, and then retailers, and then consumers, and then to another consumer as used equipment...
If some retailers decide they'll buy the lower quality Coca Cola knock off, noting prevents Coca Cola from making new ways to prove you're buying the real thing (holograms, higher quality packing, etc).
Nothing prevents others from copying those ways, and they add expense that ultimately comes out of the consumers' pockets. Microsoft has gone about as far as you can go, and yet counterfeit product is rampant. How do you determine that you've bought the real thing in this situation? You discover after you've bought it that it is unsupported, shoddy, underspec, and then the fun of returns, disputes, and lawsuits begin.
You've convinced me. Trademarks certainly are unnecessary and useless.
Copyright and patents and trademarks were intended to protect for a very short period of time so the creator and only the creator can make enough profit to keep food on the table. Today, that government force is only profitable for those powerful enough to control all the distribution cycles.
Trademarks were never "intended to protect for a very short period of time so the creator and only the creator can make enough profit..."
Trademarks are protected because they provide a socially valuable service. Trademarks provide a shorthand that permits consumers to identify the source of a good, and thereby associate the good with characteristics such as quality, economy, performance, etc. (or the lack thereof). Kodak, Fuji, Coca-cola, Pepsi... none of these marks is protected simply by virtue of their creation. They are protected because they are used to identify particular goods that are actually sold in commerce.
Trademarks are protected because people like Michael Dell have spent decades creating distinctive brands of merchandise, and consumers would be confused and/or deceived if others were to suddenly start up businesses selling "Dell" electronics to you and I. Trademarks are protected because consumers lose when they have to spend additional time researching whether they are purchasing a bona fide product that they want, or a counterfeit product that they probably do not want.
Trademarks incidentally protect the "creator", because they are the embodiment of the seller's reputation and goodwill. Even if a consumer wants to purchase a counterfeit good, that good is not sold by the "creator" and typically shoddy, which confuses other consumers about the source of the good, the quality, economy, and performance of the good, and denigrates "creator's" business reputation. Trademark law is intended to eliminate that unwarranted confusion.
If Coca-cola continues to be sold for the next two centuries, then the trademark will continue to be enforceable for the next two centuries, because the confusion caused by my rip-off of Coca-cola would always serve to harm the consumer. I have no particular opinion concerning the Marvel/DC mark, but I certainly have an opinion concerning this fairy tale of trademark-as-copyright.
The parent post is incorrect.
The patent issued on 2/15/2005. The patent was filed on 10/21/1999. There is no disclosed priority date that predates the filing of the U.S. application.
To "qualify as prior art"*, someone would have to show that the claimed invention was "known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent." (35 U.S.C. 102(a)). Since you cannot know when the claimed subject matter was invented simply by looking at this patent document, you cannot simply look for anything published prior to 10/21/1999. You must look for the earliest references that you can find, and if the only art you can locate is within a year of this date, there is a reasonable chance that you are throwing your money away challenging the patent.
More commonly, someone could also show that the claimed invention was "patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." (35 U.S.C. 102(b)). This provides you with a known date to beat, 10/21/1998, and ensures that the examiner in a reexamination or the judge in a court proceeding will reach the meat of whether or not the claim is anticipated and/or obvious.
The subject matter of this patent could very well have been sold to the public prior to 10/21/1999 and not be prior art. It could have been sold in the U.S. from 10/21/1998 onwards and not be prior art. It could have been sold in Canada in the early 1990s and it would not be prior art, at least in the United States. Posters on Slashdot use "prior art" the way my parents use "CPU" to refer to the entire big beige box. Stop and think about how you think about people like my parents. Then sit down and take some time to actually read the patent statute.
*Things do not "qualify as prior art" simply because they occurred on a particular date. 35 U.S.C. 102 has a rather extensive list of what is and what is not prior art, and at what time prior art events have to have occurred. There are five more subsections that are even more complex, in general, than the ones cited above.
I see a GPL that prevents companies from using DRM (which wasn't around for v2) to get around GPL requirements. Basically those same requirements that we liked from v2.
The GPL does not require the licensor to allow the licensee to run modified code on particular hardware. It is not there, ergo it is not a requirement.
Arguments that it was an unintentional or unenvisioned loophole are wholly unpersuasive. RMS was fully aware that compiled code could be burned onto a PROM and incorporated into a hardware device to create a closed platform when he conceived of the GPL concept (whichever version you care to cite prior to the v3 draft). RMS was perfectly aware that the Xerox printer driver that so incensed him interfaced with Xerox printer software built into the printer. RMS, like most technically oriented computer users, also had to be aware that the PostScript software installed in various printers was more than simple firmware. RMS had ample opportunity to write the license that he intended, and he did not write the license that ought-to-have-been. Whatever his current stance, the license-that-is is the license that has gained such popularity and it now has a life independent of RMS and others of like mind.
You may not see a negative, but the business community certainly does. Considering that the business community is the one paying for support for GPLed software and purchasing GPL products, I fully expect to see GPL v2 versions of any commercializable collaborative apps exist far into the future. Whether you release particular code under GPL v3 or not, others can examine the code, document its interfaces, describe its processes, and rewrite it under GPL v2. Give RMS credit where credit is due, because he has created a software license that even he himself cannot defeat.
Like I said before, I disagree in theory. However, in practice you're right. The cards would have to have a PCI express-like card-to-card bus to bypass the AGP return data rate limitation (and being handed off across independent busses), but I believe that existing PCI express cards are using the card-to-card link for almost the same purpose (to keep from passing data back through the PCI express switch). In the case of a PCI express card, it's probably just a matter of dedicating a portion of the lanes supported by the GPU to the link. In the case of an AGP card, it would require a wholly different type of bus tacked on in addition to the AGP circuitry, which would make it cost prohibitive and/or impractical.
BTW: According to an NVIDIA GPGPU presentation the AGP return data path in an AGP 8X bus runs at 1/3rd the data rate of the send data path (page 51 of 52). These same people claim that AGP 8X transfers 2.1GB/sec, which means that the AGP 8X return path is around 700MB/sec, which is slightly slower than the 64 bit 133 MHz PCI-X bus (~1064MB/sec). When the graphics people claim that the bus crawls, just remember that their view of bus speeds is jaded in comparison to most.
AGP is a one-way architecture - the motherboard sends data to the graphics card, the graphics card processes it and sends it to the monitor. The limitations of this way of working are why dual graphics card solutions were never practical on AGP once you started increasing the complexity of the data - the bus wasn't capable enough.
No.
AGP is a two-way, point to point architecture that has a single master and a single target. Data can be written to and read from the graphics card memory, but you can't exercise the full range of PCI I/O operations. The data transfer rates are asymmetric, with sending data to the card greatly favored over reading data from the card, but they are most certainly two-way.
The SLI argument is a lesser error, if you would even call it that. You could have, but never as far as I know actually did have two AGP busses in a system. Thus I suspect that it would have been possible to do SLI with AGP, especially when you consider that existing implementations of SLI require an additional card-to-card link, which means (likely, this last part is speculation) that there is very little return data being transmitted from the cards back to the PCI express switch beyond that which you would see in a single card system, whether it is PCI express based or AGP based.
Your lawyer is correct. An invention does not actually have to exist in a physical sense, and there does not have to be a working proof of concept. There are two thresholds of invention for patentability:
1. Actual reduction to practice - you build it, and it works for its intended purpose.
2. Constructive reduction to practice - you file a patent application that contains a description that teaches someone of ordinary skill in the art how to make and use the invention (and satisfies the other requirements of 35 U.S.C. sec. 112).
The first consists of "I built it", the second consists of "I could've built it, but I didn't." In both cases, the application is required to be detailed and accurate enough to teach others how to make and use the invention, and since that's the policy goal, it's immaterial whether there's a working model or not.
You cannot call dibs on an invention. You either have intellectual possession of the invention when you file the application, or you do not. That being said, you are free to disclose and claim an imperfect invention, which would prevent anyone else from selling perfected versions of the invention that rely on your inventive concept. That's perfectly fair, because the improvements are either obvious once the concept becomes known (so why is the perfected form patentable but the imperfect form not?) or themselves patentable, in which case the original inventor can prevent later comers from selling the improved invention, but the inventors of the improvements can prevent the original inventor from selling the improved invention as well, leaving the imperfect embodiment. That conflict is at least one of the driving forces behind the cross-licensing of patents.
Besides FISA, I am unaware of any statute or order that allows the threshold of "probable cause" to be lowered when the police seek to access data held by a third party that is unwilling to surrender it.
Besides, your theory does not explain why the data could not be deleted sooner than 30 days, since you're asserting that the legal status changes after 30 days.
In any case, the article says Google intends to delete the information shortly after the electronic handoff, and will never retain anything from a user's hard drive for more than 30 days, said Sundar Pichai, director of product management.
I am willing to believe that Google would not intentionally misstate its policy in public. The PR and legal consequences would be interesting if they did, to say the least.
I suspect that the 30 day requirement is a matter of technical feasibility rather than "evil intentions." I seem to recall Google announcing that it could not guarantee that email deleted from Gmail would be deleted from Google's data storage system, at least immediately. When you consider how much redundant storage Google holds, and how that storage is distributed around the world, the 30 day provision may be more of a CYA from legal liability.
The policy may very well translate into "We will make a best effort to delete the information when you instruct us to do so, but we will only guarantee that the information will be deleted within 30 days."
I realize that the public tends to focus on the "monopoly" aspect of antitrust law, but there are other sections of the Sherman Antitrust Act, for example in this case:
"Section 1
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."
The analysis is certainly more complex than this, but I'd be willing to bet that an enterprising attorney could construct a suit based on a section 1 violation, because it's practically impossible to argue that Intel and Skype lack market power in the VOIP field. I'm not saying that it would necessarily succeed, but you cannot claim "not a monopoly, therefor not regulated by antitrust law."