Everyone has certain rights (such as anonymity) until they
commit a crime. Pirating music (whethey they're justified or not) is
still a violation of copyrights. Why do ISPs have the right to refuse
handing over the information when they can be considered criminals?
ISPs don't have the right to refuse to hand over subscriber
information, as long as the copyright holder or its assignee
begins a "John Doe" court proceeding in which the target of the suit
is uniquely identified by their actions. The ISP is then handed a
subpoena, as in any other civil case, that requests information that
is important for the court's decision, such as information that can
positively identify the John Doe. The ISP will legally have to comply
with this subpoena by providing the subscriber information to the
court.
However, the DMCA has a special provision, intended to speed copyright
holders' takedowns of infringing material from web sites, which allows
the rights holder to expedite the removal of such material by
requiring the ISP to remove it within a short period of time of
receiving the request and notifying the ISP client. The client can
halt the takedown by formally claiming that the material does not
infringe, thus leading them to some serious legal problems if they are
not telling the truth. This section of law was not written in such a
way that it is clear whether it applies equally to material that is
stored on the computers of ISP clients rather than on ISP company web
servers. (Remember, to anyone over forty, internet = web.) Thus the
possibility for the current legal conflict.
So, why are the ISPs bothering to fight this? You are right that it
is all about money, of course, but I seriously doubt that it's over
the money that the ISPs could otherwise extort from copyright holders
for this service. Try reading the sentences
"The music industry pays the RIAA to investigate and
prosecute copyright infractions. They don't pay us a penny to do
that. They don't pay ISPs a penny to do that. Even if they did, it
would be a violation of due process and subscriber privacy."
as rhetorical, as in "I don't know why I, as a state warden, have to
execute this mafia informant who happens to also be a murderer - the
mafia doesn't pay my salary, and even if they did, it would be against
my conscience as I don't believe in capital punishment." Instead, the
money in question is what the ISPs would lose if they were seen by
their customers as ready to interfere in this way with client use of
the leased bandwidth, or more likely, the money that it would cost to
even try to police copyright infringements that occurred through
internet services and were stored on client hard drives. If you don't
think it's really that much of a big deal, I'll illegally email you a
song to prove the point.
A more interesting question, though, is why doesn't the RIAA just
follow the standard process and obtain a John Doe subpoena? They must
have the evidence to do this. One possibility is that they would
rather set a precedent that they can request takedowns of infringing
material stored on client hard drives using the easy, no-fuss method
as they read Congress as having intended it. Note that this is what
they claim as their motive.
However, this rationale doesn't hold very much water, since it makes
no sense for the RIAA to try to file a lawsuit against any significant
number of file traders in an effort to eradicate infringement. The
whole strategy must revolve around suing a small subset of file
traders in an effort to remove those nodes which offer the largest set
of files and to scare off all of the rest, in effect "firing into the
crowd". It would simply be too expensive to police infringement by
catching all copyright violators - that's more than half of American
teenagers, and even an expedited discovery process is not going to
make that cost effective. In the case of a small number of lawsuits,
whether the discovery is expedited or not makes little difference and
is not worth fighting over, except on principle (which the notoriously
mercenary RIAA asserts as a secondary motive, of course.)
A moment of thought indicates that a much more likely reason to wish
for the expedited process in this case is so that the RIAA can see who
the defendant will be before they actually launch an infringement
lawsuit. With the so-called turbocharged subpoena process, the RIAA
can make a blanket call for the identity of one hundred infringers,
investigate each person on the list, and choose the one who's a
baby-beating homeless crack-ho terrorist hacker to hit with a lawsuit.
As noted above, with the demographic reality of copyright
infringement, they really don't want to follow standard practice and
blindly file a John Doe lawsuit - heavens, that person could be the
eleven-year-old granddaughter of one of the RIAA executives, or Jenna
Bush. Knowing what you're getting into before making public legal
filings that could be very embarrassing later is almost
mandatory in this situation, and you can expect the copyright holders'
organisations to press for this power as strongly as they can.
A final comment: the civil liberties organisations are not in it for
the money.
"On the face of it, Microsoft complaining about the source license
used by Linux is like the event horizon calling the kettle black." -
Adam Barr, former Microsoft employee
The article commments that the dot-com employees are not considered to
be hot property by the fed employees doing the hiring. There are
hints that it may be a culture thing, but I think that it's probably a
reasonable set of decisions based on technical merits.
The reality is that you have to undertake a completely different style
of coding than that of most dot-com organisations in order for your
software to meet the requirements of this area.
Most mass market commercial software is produced using extremely poor
software engineering processes for the simple reason that this is what
you would do if you didn't know any better, and it doesn't come back
to hurt you in the market. You can make a crappy product, but if you
get "first mover advantage" and wrap up a nice bit of market power
over that industry segment, your poor software choices are not going
to be enough to allow secondary entrants the chance to catch up.
Network effects, zero marginal cost of production, etc. etc. Case in
point: Microsoft could request that all of their employees spend the
next month walking around the offices quacking like ducks, and still
pull out and retain their monopoly. In how many other industries
could that possibly be true?
With military style software, there are defined processes that are put
in place because the people running the show are used to having to
create quality software. If you don't, someone comes back to you and
says "That rocket blew up." The one-off, mission critical nature of
most of the projects ensures that the entire staff is willing, and
more importantly, must be able to engage in high level software
engineering practices.
The dot-com folks are not going to be able to get jobs easily in the
fed/military sector for the simple reason that these people know
better. The dot-commers have had no growth as software engineers and
have bad habits that need to be untrained before the good habits can
be trained. Those who had received positive sanctions for their
previous style of work will have arrogance issues to work out as well.
Think, for an example, about how much work had to be done both on the
code and on the personnel to turn Netscape around into something that
could be reasonably worked on by independent teams across the net.
I guess that you could call some of this culture, but it's important
to understand the full scope of what's going on, hopefully so that we
can see a way to improving the output of the commercial software
sector once the problem is generally recognized.
Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Fifty for the contest winners on their couches with remotes...
>> How about an advanced cache system, a master cache or multimedia
files as they get sent, files matching the same name/size/crc value
get sent down to smaller cache hubs. Larger isps could host these
cache hubs, the incentive for them would be less bandwidth external to
the network.
>Congratulations, you've just invented USENET!
The original poster, wo1verin3, also mentioned a need for privacy, so
for the complete solution, he would probably have to invent
Freenet.
Let me elaborate. There are basically two kinds of content that
people might want to throw around the net using IM's. The first is
original content from that user, like voice phone data or the MPEG of
the family get-together. (Or for the pr0n industry, people who are
acting in a way that might cause a family, getting together.) The
second kind of content is copied content that likely has a wider
audience than just the people on one person's IM buddy list.
For pretty much everyone, the amount of original content that they
create is an order of magnitude less than the amount of content that
they are interested in viewing. However, to accomodate the
person-to-person phone calls and such, whatever weird schemes the IETF
puts together regarding avoiding UDP packets and what not will be
required. But such content will not be the major part of the traffic
load, and if you read the article carefully, it's not the part of the
traffic load that any of the people actually from the IETF are quoted
in the article as worrying about.
The real problem is content that is intended for a general audience,
but efficient distribution of such information in an anonymous manner
is readily available by simply sending references into Freenet rather
than the actual content data itself. The sending IM peer can verify
that the data is available in Freenet, upload it if necessary, and
then send the Freenet ID text to the receiving IM peer, which can
download the data through a path that has been minimized to the extent
that people "close" to the receiver have previously downloaded that
data. (cf. freenetproject.org)
Now, I'm not exactly on the IETF suggestion-in-box-list, but to me
it's strange that all of these bright people, many likely employess of
AOL-TimeWarner and other large computer and media firms, haven't
figured that Freenet or Freenet-style distribution is a simple
solution to the problem... Of course, I'm being sarcastic, as we
shouldn't be surprised if organizations with the obvious corrolorated
political agendas are reluctant to note that extensive promotion,
product integration, and use of Freenet will help to resolve this
difficulty.
Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Fifty for the contest winners on their couches with remotes...
BTW, the publishers are trying to scare the court into
denying the freelancer's their copyrights by claiming that, if the
decision goes against the publishers, they will be forced to remove
huge amounts of material from the online archives, which will cause
grave damages to scholarship. This seems like absolute hooey to me --
if there is a market for those articles, a means will be found to sell
them, and for the profits to go to the authors.
You're right. Searchable databases are the real issue
here. However, I think the authors are dead wrong. A searchable
database loses a great deal if utility it is no longer
complete. Whether it's Lexis/Nexis, another third party, or the
paper's own online archive, it's absolutely vital that every word that
appears in the paper is available as part of the archive. For a
researcher 10 years hence, the absence of a story about a certain
subject might be just as important as the presence of a story.
Newspapers are not just ephemera--they're part of the historical
record. This isn't a new phenomenon. I don't think any author can
claim that the existence of article collections, newspaper morgues, or
electronic databases took them by surprise.
I agree completely that a ruling in favour of the authors as purported
copyright holders will be disastrous for future researchers. But I
see the big picture differently than both of you seem to. I think
that a ruling for the authors will cause real permanent harm to
scholarship, but I don't see this as something that is isolated to
this special class of goods, "newspapers", and that because of this
the newspapers should (perhaps by 5KVGhost's reasoning?) be given
special rights to break copyright law for the good of society.
Instead, I think that it's time to wake people in general up to the
notion that clinging to 2nd-millennium thinking about copyrights is
going to cause a great deal of harm to academic research, and to
society in general. The point should be made that this is just one of
many possible examples of how our current copyright laws will stifle
what seems like laudable, socially positive action, and cause older
works to be inaccessible to future citizens to the benefit of no one.
I'm sure that the people who keep archives of ancient video games, as
one particular example, would agree with me whole-heartedly. Those
who are furious that, even today, many old films moulder into ruin
when they could be processed and saved likely feel the same way.
I pledge allegiance, to the very existence, of the Great
Corporations Of America, and to the stockholders for which they stand,
no tolerance, under Gates, uncircumventable, with invoices and
subpoenas for all. And don't even get me started on patents. -
Slashdot:kennyj449
Never use "protect" or "secure" when what you really mean is
"restrict". This one is a favorite of the control industry.
I pledge allegiance, to the very existence, of the Great
Corporations Of America, and to the stockholders for which they stand,
no tolerance, under Gates, uncircumventable, with invoices and
subpeonas for all. And don't even get me started on patents. -
Slashdot:kennyj449
There's an easy method to evade any Napster file title search through
systematic "misspellings". Just take the OpenNap client and modify it
into ROT13ster.
Before listing your shared music on Napster's directory servers,
ROT13ster applies the obvious transform to the titles. When searching
for music on Napster's servers, ROT13ster uses a special ROT File
Lister that applies two behind-the-scenes searches, one with the exact
search term that you used and another with the ROT13'd version, and
then splices the two search results together for display.
Any systematic method (as some here have mentioned, index
files, etc) would be just as easy to filter by as the name, and
wouldn't be used anywhere nearly as widely used as Napster
itself.
That's right, a system could just be set to check for ROT13'd
versions of titles as well, right? Problem: ROT14ster. And for those
who will say that there are only 26 ROTXsters, any number of
additional permutations can be constructed that will preserve the
utility of most partial search terms, and all exact matches.
But having a whole bunch of fragmented possibilities won't do any good,
you say, because then how will people know which one to choose?
Simple solution again. Provide people Multiple Access Options in
their File Lister, so that they can select a whole set of title
transforms that they will perform searches on. Make the functional
input description of each transform a text string that could easily be
copied from a web page.
Now what are RIAA lawyers going to say, "We submit under penalty of
perjury that user Gr00v3y was illegally sharing the music of Britney
Spears, because using information gathered... um... from the web
site of one 3L33T H4X0R in the country of Elbonia, we could perform a
text transform suggested... so that the title matched with
Oops_I_Did_It_Again... so Gr00v3y must definitely have been violating
a RIAA copyright, definitely. Please cut his connection."
An easy-to-construct ROT13ster File Lister, along with Multiple Access
Options, makes it impossible to muzzle file trading through the
Napster servers by attempting to match song title characteristics.
That's right, the correct response to any such attempt is ROTFL-MAO.
When you're the richest man in the world and not a single senator
speaks up on your behalf, you know you've got problems. - Jeff
Eisenach
Your post is a very interesting analysis, and unfortunately it does
reflect a lot of the common thinking and even legal practice that
occurs at the present time. However, I find that it makes reference to
a fundamental flaw in legal reasoning that I find particularly
common and disturbing.
Trademarks, service marks, and trade names have one particular reason
for existing: to help to avoid customer confusion. We want consumers
to be able to make informed market choices by having some assurance
that if a product or service is labeled with an identifiable brand,
then the same company that they expect from previous experiences is
providing that product or service.
However, the vital point is that more than one entity can hold trade
name rights to the same sequence of characters. This can happen in a
number of ways. For example, the entities could hold rights in
separate and non-overlapping jurisdictions, such as one holder in the
U.S. and another in Canada, or one holder of a mark in California and
another in Florida. Additionally, and even more importantly, two or
more entities can hold rights to a mark in the same jurisdiction if
they are in sufficiently different businesses that their simultaneous
use of the name in the market will not cause consumer confusion.
(Remember, this is the only purpose for the legal standing of the
marks in the first place.) The classic example here is the mark
"United".
Now, modern "intellectual property" lawyers are trying to convince
everyone that we should suddenly change everything and ignore the
above. Of course, they aren't presenting it that way publicly. What
they say is that they are protecting the "intellectual property" and
trademark rights of their clients in the new electronic sphere.
However, in their actions they are making preposterous claims, and
unfortunately many people seem to be accepting their position
uncritically.
When you suggest that International Business Machines, the current
holder of the ibm.com domain name, has the right to sue for trademark
infringement anyone who registers ibm.com, despite the availability
caused by, say, a lapse in the domain registration by International
Business Machines, you are falling for a line. Why exactly does that
IBM have this right? If there's a company in France with the
registered French trademark Immeuble Baisemain that puts on a show
about selling real-estate, and it's convenient for their customers to
call them by a three letter acronym, why shouldn't they have as much
right to the domain name as, say, International Business Machines?
Can you seriously imagine that their website will confuse people into
thinking that they provide computer hardware, software, and consulting
services from International Business Machines? And if it somehow
does, can't IBM U.S. just sue them?
Isn't it much more likely that the lawyers of the world are just
stretching the law in this novel area as far as they think they can
take it, simply because it is in their interest to provide their clients
with the best possible outcome, justified or not?
So, while I agree with you that the business method that SnapNames is
providing is ridiculous and should be superseded by a true secondary
market in domain names, I find the reasoning that you use along the
way to be dangerously incorrect. What's worse is that, if enough
people make the sort of mistakes that you have (and there are plenty
who do, you do not need to feel any shame), then the lawyers might be
able to successfully argue down the road that consumer confusion will
inevitably result in the use of a trademarked term in a domain name by
any entity that is not the one among the set of holders of a valid
registration that provisions the largest legal department.
---
Q: What is the concept of Fair Use, as you understand it?
Jack Valenti: It means that libraries or schoolteachers can play movies in their classrooms for educational purposes.
This post explains exactly the problem. Managers who act in
such a manner that their software is of poor quality have the only
hopes of becoming wildly successful in the software business. They
are lauded as geniuses and heroes. Meanwhile, people who do things in
a manner that takes account of good engineering principles have their
code trivially emulated or their formats trivially embraced, and end
up making no monopoly rents. Usually they go out of business, despite
the geek crowd looking back fondly on their work as visionary.
Sound familiar to anybody? Mark the previous post up to 5 please.
"We will compete with anybody."
- Michael Risse, general manager at a company that complains that all
antitrust complaints are instigated by competitors
Yeah, and I went to the slashdot.com site. It's terrible, they've
framed the site with ad banners from ThinkGeek and such, and then
wrapped all of the content in moronic and misleading commentary.
At least the stuff that they add is so poorly edited that it's clear
that it is not part of the true, professional Slashdot site.
"We will compete with anybody."
- Michael Risse, general manager at a company that complains that all
antitrust complaints are instigated by competitors
Okay, essentially everyone here is going to agree that this CNET
article is mostly a bunch of poorly-considered crap. Note that the
only "P2P founder" of the four that they mention who agreed to provide
quotes for the article said "Well, hopefully it will accelerate the
democratization of the media, so there are more Slashdots and fewer
CNETs."
I have a suggestion. Should we call writting an article like this
that is certain to bring thousands of hits from the Slashdot faithful,
followed by inevitable articles that must explain the facts as we
almost all agree they are, an example of "karma pimping"?
If I couldn't break it with a hammer and a blowtorch, you shouldn't
be able to patent it.
Okay, I've posted a joke under this article already, but this is just too funny. Basically, this code sample suggests that they've finally gotten to the point at which they are admitting that people should program in Ada82.
As the name suggests, this language was available with fully validated compilers in 1982, and supported most of the features that are used in this sample, but without a lot of cruft. (Okay, and no object orientation per se, but with almost all of the benefits in this regard that C# seems to allow but done in another fashion.) This sample looks so much like Ada code that it's ridiculous.
Great, so Microsoft is only eighteen years behind on this one! If only their operating systems could keep up with this rate of innovation!
If innovation is rampant in the operating systems market, why can't I get one yet with a capabilities model?
Microsoft has announced the creation of a new programming language intended to keep MCSE's from hurting themselves with pointed things. The new language is to be called C#, pronounced "See? Sharp!"
Said one Microsoft executive, "There's so much cut and paste programming going on with our tools, we were continuously having to admonish developers not to run with MScissors."
We can all sit here and laugh at how ridiculous this sounds to those of us who know better. This is misguided. Opinions like this carry a LOT of weight out in the real world, full of people who don't know that SDMI is technically impossible without requiring that you lose the option of purchasing non-compliant consumer electronics products, that eliminating the possibility of trading copyrighted files involves having a police state check every email, private diary, and association, etc. This is going to be the way that the world starts to go unless we all make a VERY LARGE fuss about it.
Don't ignore someone telling you to your face that he is going to send in the "Roman legions" and fight you as World War II was fought, with "more men and women, more weaponry and more money, and [the] money in turn [to] train more men and women and build more weaponry" than you have. This man is very, very powerful and has many strong associates. He has already told you that "being fair, or being just, in a battle for survival is often not enough." Don't doubt that the RIAA heads see this very much as a battle for survival, and keep in mind, as a previous poster has mentioned, that this person, as the head of a company that came to prominence exactly because of bootlegging, is perfectly prepared to be hypocritical without blushing.
This is an astonishing, impressive speech. This is the sort of speech that rallies the troops. These people are not joking around; if you feel that there is a different, better world just around the corner, understand that these people are moving full tilt to extend the wall.
I'm no orator to match with this kind of display, but I hope that in combination with the passions that many of us will feel just reading Edgar Bronfman Jr.'s words, this post can help to clarify to people that we are actually going to have to fight, very strenuously, for the things that we know are right. It's time to actively organize, join and support freedom-loving associations, and take personal responsibility to inform everyone we know about the opportunities and dangers that lie ahead for our societies.
I'm just going to close by restating some of Ed's own words, along with a little bit of dialogue that should clarify this small portion of his deception.
There is a difference, however, between giving and taking. Had those donors been compelled to do what they have done, it would be a tale not of generosity but of coercion, not of liberality but of servitude. Those whose intellectual property is simply appropriated on the Internet or anywhere else, are forced to labor without choice or recompense, for the benefit of whoever might wish to take a piece of their hide.
If this is a principle of the New World, it is suspiciously like the Old World principle called slavery.
Musician: Hey, did you just copy one of my songs for your friend over the internet?
Fan: Yeah.
Musician: But how am I supposed to make money from that?
Fan: Well, I love your music, but this money issue is not really my problem. Of course, I'm happy to support you in various ways, but you really can't stop me from doing this.
Musician: But that's an appropriation of my intellectual property. You're coercing me into writing music for your friend.
Fan: Hey, I didn't force you to record the song.
Musician: Well, there are laws about this sort of thing. I'm going to make sure that you comply with them.
Fan: Um... that's going to require putting together a police state. How can you tell whether or not I share information with my friends without verifying all information that passes between us? Won't you have to allow the police blanket rights to search my possessions for violating material? Are you going to outlaw the internet? I don't think that you want this.
Musician: Oh... I didn't realize... I hadn't thought about that... no, okay, I guess that I really don't want that.
============================
Musician: I'd like to make some new music and release it as MP3s.
RIAA: I'm sorry; no. Read your contract.
"It is therefore sickening to know that our art is being traded... like a commodity rather than the art that it is." - Lars Ulrich, Metallica
Okay, I've posted this a couple of times before, but I never get to new/. stories quickly enough to have anyone much read it. If I'm wrong, and people just don't like this rant, please moderate it as "Redundant" and at least let me know that someone sees it.
There has been a lot of noise about how to reconcile domain names with trademarks over the last while. Personally, I can't see why we've let this happen. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word: "jurisdiction". If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
These two essential contradictions look like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. Note that this is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, as a state might defer to national registrations - or better yet, put together the technical means to include those registrants automatically in your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
Sometimes I am truly astounded that we got to the moon and back. Not because we couldn't build the rockets, but because the guidance and control is so complex.
Followed by Maurice - And probably the most important thing, that greatly helped in the orbit calculation -- the FFT algorithm. Yep. It's not called "Fast" for nothing you know. It's probably not an exaggeration to say that FFT got man to the moon.
Actually, I'm not sure that even the FFT is fast enough to have done useful work on the machinery available for the moon launches. You still have to store a whack of data to have it do any good, right? While there may have been some use made of FFT, the real heroic algorithm, and one that you don't often hear praises sung for, was the Kalman filter. In brief, the Kalman filter allows you to track a linear signal that exhibits some random dynamics given only noisy observations of that signal. The nice property it has is that it can compute an estimate recursively, which is to say that in the particular situations for which it is suited, it is MUCH faster than other methods available at the time. It was used as the essential mathematical component of the control systems for the moon landings.
If you look at any texts from the '70s about stochastic filtering, they all go crazy about the Kalman filter, try to do some nonlinear stuff, and then have numerous chapters at the end with titles like "Application - Orbit Tracking", or "Application - Reentry". Cool stuff.
Re:What's wrong with giving TM holders first dibs?
on
Master Of Your Domain
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· Score: 1
I've posted this before, but I think it bears repeating. >RANT-Plus, by the time people who work all day get home and have time to actually read the linked articles, read the posted responses, and find something useful to say, no one is left to read their post as the article scrolls into oblivion. I bet no one gets a chance to read this post, either. Isn't this supposed to be a discussion site?>/RANT-
There has been a lot of noise about how to reconcile domain names with trademarks over the last while. Personally, I can't see why we've let this happen. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word: "jurisdiction". If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
These two essential contradictions look like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. Note that this is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, as a state might defer to national registrations - or better yet, put together the technical means to include those registrants automatically in your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
[Sorry it doesn't say anything about ICANN directly; I still think it's on topic. Also, I support opening all possible character combinations for unrestricted TLD registration, as has been suggested before.]
Okay, this response is only going to address the general question that you asked, that is, what the difference is between domain squatting and brokering. My belief is that they should both be considered synonymous and legitimate. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word. If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
This looks like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. This is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, such as a state might defer to national registrations - or better yet, put together the technical means to include those registrants directly on your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
People tend to think in black & white. Reality occurs in various intermediate shades. If Microsoft is "guilty", the question is - guilty of what, and what must be the remedy? And what purpose will it serve?
I think the remedy question is very, very difficult. However, I think that it is an important one and something that should have a lot of critical thought put into it. In particular, the question of who is served is paramount. Microsoft is almost certain to be found guilty, but we need to determine if there are remedies that can cause consumers to become better off than they would otherwise be.
First of all, just about ALL the *specific* issues that were argued in the anti-trust trial (ISP arm twisting, browser bundling, etc) are already obsolete (did you notice how nobody is suggesting these days that MS should seperate the browser from the OS?) . This raises profound questions:
* how must a monopoly in software be proven? And how can its misuse be proven?
* how must the remedy be issued, when you know for certain that by the time you make the judgement, the original complaints are obsolete in this fast moving industry.
These comments indicate a confusion of the issues. The specific issue that is argued in the anti-trust trial - that Microsoft is using its monopoly in PC operating systems to stifle legitimate innovations that might reduce the power of that monopoly - is certainly not made obsolete by its success in drowning those innovations. (Don't believe that this is what the trial is about? Check out//http://www.usdoj.gov/atr/cases/f2600/2613.htm ) Asserting this is like letting a serial killer go free because all of his victims are already dead - what remedy is there for them? So, the original complaint is not obsolete, only some of the direct victims of the questionable Microsoft policies.
Because of this, the second starred question is not clearly relevant. The "fast moving industry" line is a simple but common red-herring, if it is even true for operating systems. (We've all been waiting fifteen years for Microsoft to release an operating system that is as stable as MS-DOS, which was itself perhaps ten years behind the OS industry's front line.) The remedy question is perplexing, but it is certainly not clouded by the fact that successful anti-trust violations can destroy entire companies and even sub-industries quickly. Of relevance is that these violations can have long-term effects on potential software innovators, and it is this that the remedies must take into account.
Also, just because no one you work with at your workplace is suggesting that IE should be separated from Windows does not mean that there aren't people who understand right away that it is a good thing to do. In fact, the inappropriate coupling of the two is one of the main reasons that I switched to Linux. And don't imagine that I think of Linux as a great operating system (yet). It is simply not an appropriate option for the great majority of people. (It's also not in the relevant market - it's provided for free by volunteers who might otherwise have better things to do - but that's another issue.)
The first starred questions are more than adequately answered by the example of the above link. It can certainly be shown that a software property holder is a monopoly, and that that monopolist is abusive in an anti-trust sense. One can argue, largely against the evidence, that such a legal judgement does not apply to Microsoft, but one cannot argue with the bases upon which such a legal judgement is made, since they are a part of the law. The tests are fairly explicit, and involve determination of barriers to entry, the power to raise prices above (economic) costs, the legitemacy of product tying, and the foreclosure of markets. So, there are no real questions about what it means to determine that a software property holder is guilty of anti-trust violations. One can argue that all of anti-trust law should be thrown out as immoral, but probably more people felt that way before Microsoft came on the scene than after, and I won't deal with that question here.
For starters, monopoly for MS is not as simple as it appears, since you're narrowing the industry to the "PC operating systems" arena. If you narrow down segments of industry, Oracle is a monopoly in the midrange server database market (HP tunes its OS to run faster on Oracle, is that a sign of too much power?), and IBM is a monopoly in the mainframe database segment (easily more than 90% of S/370 machines use DB2, both of them ibm products). Similarly, Palm may be said to be a monopoly in the handheld segment.
I think if any of the above companies were subject to the same scrutiny as MS, there would be several issues of leverage of market share.
It has not been determined that Oracle or Palm have significant barriers to competitive entry or the power to raise their prices above economic costs. Remember, market share is irrelevent to determination of a monopoly. In the case of IBM's mainframes, there has been no recent determination that anti-trust violations have occured, if it could even be shown that a monopoly existed for a market that seems so suceptible to lower-priced substitution. If any of these facts change, then by all means anti-trust enforcement should (and I imagine will) be applied.
Keep in mind that one major reason for IBM's downfall was a 10 year lawsuit by the same Dept. of Justice. The case? IBM was bundling its mainframe hardware, OS, and database products. At that time, geeks were cheering on two young companies that dared to take on the evil monolithic empire - Microsoft and Apple.
Well, guess what? 20 years later - IBM is STILL bundling its hardware, OS, and database products. Why is the DoJ not caring? Because it's a dead, obsolete market. The mainframe has been overtaken by the PC, and all the issues that were so fiercely argued decades ago, became irrelevant. It's the same deal. IBM caved in due to the lawsuit, which resulted in literally a warehouse full of documents they had to shovel around.
Should IBM have been hurt so badly because it played rough in the mainframe market, knowing that it was an unquestioned giant (and not knowing that it was surrounded by nimble, faster velociraptors)? Because of the DoJ case, IBM had reached the point where lawyers were attending every meeting, and had to approve of every plan. It killed them. Did they deserve it?
First, it must be noted that IBM is far from dead. In fact, evidence was introduced into the Microsoft trial indicating that its revenues were higher than those of any other company in the computer industry. However, it is true that it no longer engages in policy that violates anti-trust regulations, such that government oversight is determined to be required. Its mainframes are profitable but subject to substitution and it makes a nice, tidy business out of competing head-to-head, with no inherent advantage, in the brutal battle for desktop PCs. Is this the IBM "downfall"? It seems to be completely reformed, and as such, its example seems to be an odd basis upon which to insist that the anti-trust action should not have been taken.
This argument, in its various manifestations, tries to have it both ways. On one hand, it proposes that IBM was unfairly hurt by the trustbusters. On the other hand, it insists that the enforcement was misguided because Microsoft came along and out-competed IBM in a way that had nothing to do with the anti-trust actions. Well, which is it? If Microsoft would have out-competed IBM anyways, then why was the enforcement such a blow? As it turns out, this is the center of one of the great ironies of the Microsoft anti-trust trial.
Think about it seriously - if you were an IBM executive in 1977 just about to introduce a new product line, would you prefer to also provide an IBM operating system for the project, as had been done with all other IBM computing products up to that time, and which had always worked to IBM's advantage in such concrete ways that IBM was under anti-trust regulation for that reason; or would you rather license the operating system from some external source with no control over its eventual deployment or development? People often hypothesize that IBM simply dropped the ball, that they didn't realize how important microprocessor-based computers would become. But is that really a sensible conclusion? It seems like the largest mistake in the history of computing from our vantage point, and can it really have seemed like a much better decision at the time? Not to belabour a point, but would you ever, ever, in a million years, even without the benefit of hindsight make such a decision? Well, of course you might - if there were an anti-trust lawyer in the room with you as you made it.
So what would have been the result with no oversight of IBM's activities? Likely, IBM would still control all aspects of most computers. They would have a full lock on both hardware and software, with vast barriers to entry that we can hardly imagine. IBM would certainly have easily crushed any attempt by a fledgeling Microsoft to innovate on and replace the operating system base. It's likely that Microsoft would never have even tried. We can doubt whether IBM would have ever needed to add a graphical shell, had ever needed to follow any outside networking standards. It is a world without vast sources of innovation - just ask Microsoft.
The entire tragi-comedy appears in full splendour now. Microsoft is fighting tooth-and-nail against the very anti-trust activities upon which it was reared. It's like legal Oedipus. There's more - consumers now seem to have benefitted dramatically from the IBM action. Not only did it bring about the rise of Microsoft products, but also GUIs, clone hardware, WYSIWIG, spreadsheets, even PC databases. So we should always have regulators sitting in the offices of our most powerful computing companies, right?
I don't think so. You may think MS is truly bad and evil, but the reality is they are just like any other company. And the reality is also that it's better for the govt. to stay away. This is very difficult to realise when you hate Microsoft so badly, but keep in mind that many young geeks hated IBM just as badly, and the point still stands - if you wound a company that will be obsolete in a decade or two because it played rough, it will always be unfair from a historical viewpoint.
The humour here is that they are just like one other specific company. Who exactly is it unfair to from a historical viewpoint? Why exactly should the government stay away? Does anti-trust action really hate Microsoft, or does Microsoft just dislike the successful relationship anti-trust has with IBMom? There are thousands of sons who hate their father, and there are thousands of geeks who are just waiting to spring their innovations upon the world, delayed only by the power of the Microsoft they hate.
Keep the long view in mind. Breaking up the company may seem tempting, but you'll only hurt the industry - the same way the DOJ's interference in IBM's day-to-day affairs hurt the mainframe market nobody cares about now. Keep that in mind.
It is apparent from the historical evidence that severe anti-trust interference need not hurt consumers in the long term. However, this is not a carte-blanche for government takings, even against monopolists. Clearly, there are remedies that will be unfair to the shareholders of the monopoly firm. As well, there is no evidence to support the idea, jokingly proposed above, that consumers would be better off with constant government intrusion into the activities of the industry leader. In fact, there are plenty of reasons to believe that such regulation would be very bad for consumers, as Microsoft is careful to point out. However, the consumer benefits of some sort of action are becoming more and more identifiable, and significant legally determined violations of anti-trust law must be met by some remedy. It is perhaps not possible to select an anti-trust action that will, in concert with intellectual property and other law, cause the software industry to act in the consumers' interest without any requirement for anti-trust action to be taken again in the future.
This is why the remedy question is so difficult. Of all the shades of grey, we have to find the one that most benefits the customer without unfairly taking from the violating, but merely profit driven, monopolist.
Sons should not have to hate their fathers, and hackers should not have to hate Microsoft. Microsoft should not have to hate the Department of Justice, but what other option do we have at the current time? Clear customer benefit seems likely to result from any serious enforcement. Perhaps a better system of laws can be developed for software property that does not pit the industry leader against the trustbusters for doing what will naturally cause business profit. Until then, severe anti-trust action seems to be the best option consumers and the industry have.
I'm afraid that I don't have the hardware background to really add much technical talent to such a project. However, I am very interested in discussing this proposal, since I've been wondering about the possibilites of such a system organisation for a while now. There may be additional reasons that a viable form of this arrangement could improve the quality of software.
However, you have left no way to reach you. If you read this, please send me an email.
Slashdot Mirror
ISPs don't have the right to refuse to hand over subscriber information, as long as the copyright holder or its assignee begins a "John Doe" court proceeding in which the target of the suit is uniquely identified by their actions. The ISP is then handed a subpoena, as in any other civil case, that requests information that is important for the court's decision, such as information that can positively identify the John Doe. The ISP will legally have to comply with this subpoena by providing the subscriber information to the court.
However, the DMCA has a special provision, intended to speed copyright holders' takedowns of infringing material from web sites, which allows the rights holder to expedite the removal of such material by requiring the ISP to remove it within a short period of time of receiving the request and notifying the ISP client. The client can halt the takedown by formally claiming that the material does not infringe, thus leading them to some serious legal problems if they are not telling the truth. This section of law was not written in such a way that it is clear whether it applies equally to material that is stored on the computers of ISP clients rather than on ISP company web servers. (Remember, to anyone over forty, internet = web.) Thus the possibility for the current legal conflict.
So, why are the ISPs bothering to fight this? You are right that it is all about money, of course, but I seriously doubt that it's over the money that the ISPs could otherwise extort from copyright holders for this service. Try reading the sentences
as rhetorical, as in "I don't know why I, as a state warden, have to execute this mafia informant who happens to also be a murderer - the mafia doesn't pay my salary, and even if they did, it would be against my conscience as I don't believe in capital punishment." Instead, the money in question is what the ISPs would lose if they were seen by their customers as ready to interfere in this way with client use of the leased bandwidth, or more likely, the money that it would cost to even try to police copyright infringements that occurred through internet services and were stored on client hard drives. If you don't think it's really that much of a big deal, I'll illegally email you a song to prove the point.A more interesting question, though, is why doesn't the RIAA just follow the standard process and obtain a John Doe subpoena? They must have the evidence to do this. One possibility is that they would rather set a precedent that they can request takedowns of infringing material stored on client hard drives using the easy, no-fuss method as they read Congress as having intended it. Note that this is what they claim as their motive.
However, this rationale doesn't hold very much water, since it makes no sense for the RIAA to try to file a lawsuit against any significant number of file traders in an effort to eradicate infringement. The whole strategy must revolve around suing a small subset of file traders in an effort to remove those nodes which offer the largest set of files and to scare off all of the rest, in effect "firing into the crowd". It would simply be too expensive to police infringement by catching all copyright violators - that's more than half of American teenagers, and even an expedited discovery process is not going to make that cost effective. In the case of a small number of lawsuits, whether the discovery is expedited or not makes little difference and is not worth fighting over, except on principle (which the notoriously mercenary RIAA asserts as a secondary motive, of course.)
A moment of thought indicates that a much more likely reason to wish for the expedited process in this case is so that the RIAA can see who the defendant will be before they actually launch an infringement lawsuit. With the so-called turbocharged subpoena process, the RIAA can make a blanket call for the identity of one hundred infringers, investigate each person on the list, and choose the one who's a baby-beating homeless crack-ho terrorist hacker to hit with a lawsuit. As noted above, with the demographic reality of copyright infringement, they really don't want to follow standard practice and blindly file a John Doe lawsuit - heavens, that person could be the eleven-year-old granddaughter of one of the RIAA executives, or Jenna Bush. Knowing what you're getting into before making public legal filings that could be very embarrassing later is almost mandatory in this situation, and you can expect the copyright holders' organisations to press for this power as strongly as they can.
A final comment: the civil liberties organisations are not in it for the money.
be hot property by the fed employees doing the hiring. There are
hints that it may be a culture thing, but I think that it's probably a
reasonable set of decisions based on technical merits.
The reality is that you have to undertake a completely different style
of coding than that of most dot-com organisations in order for your
software to meet the requirements of this area.
Most mass market commercial software is produced using extremely poor
software engineering processes for the simple reason that this is what
you would do if you didn't know any better, and it doesn't come back
to hurt you in the market. You can make a crappy product, but if you
get "first mover advantage" and wrap up a nice bit of market power
over that industry segment, your poor software choices are not going
to be enough to allow secondary entrants the chance to catch up.
Network effects, zero marginal cost of production, etc. etc. Case in
point: Microsoft could request that all of their employees spend the
next month walking around the offices quacking like ducks, and still
pull out and retain their monopoly. In how many other industries
could that possibly be true?
With military style software, there are defined processes that are put
in place because the people running the show are used to having to
create quality software. If you don't, someone comes back to you and
says "That rocket blew up." The one-off, mission critical nature of
most of the projects ensures that the entire staff is willing, and
more importantly, must be able to engage in high level software
engineering practices.
The dot-com folks are not going to be able to get jobs easily in the
fed/military sector for the simple reason that these people know
better. The dot-commers have had no growth as software engineers and
have bad habits that need to be untrained before the good habits can
be trained. Those who had received positive sanctions for their
previous style of work will have arrogance issues to work out as well.
Think, for an example, about how much work had to be done both on the
code and on the personnel to turn Netscape around into something that
could be reasonably worked on by independent teams across the net.
I guess that you could call some of this culture, but it's important
to understand the full scope of what's going on, hopefully so that we
can see a way to improving the output of the commercial software
sector once the problem is generally recognized.
Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Fifty for the contest winners on their couches with remotes...
files as they get sent, files matching the same name/size/crc value
get sent down to smaller cache hubs. Larger isps could host these
cache hubs, the incentive for them would be less bandwidth external to
the network.
>Congratulations, you've just invented USENET!
The original poster, wo1verin3, also mentioned a need for privacy, so
for the complete solution, he would probably have to invent
Freenet.
Let me elaborate. There are basically two kinds of content that
people might want to throw around the net using IM's. The first is
original content from that user, like voice phone data or the MPEG of
the family get-together. (Or for the pr0n industry, people who are
acting in a way that might cause a family, getting together.) The
second kind of content is copied content that likely has a wider
audience than just the people on one person's IM buddy list.
For pretty much everyone, the amount of original content that they
create is an order of magnitude less than the amount of content that
they are interested in viewing. However, to accomodate the
person-to-person phone calls and such, whatever weird schemes the IETF
puts together regarding avoiding UDP packets and what not will be
required. But such content will not be the major part of the traffic
load, and if you read the article carefully, it's not the part of the
traffic load that any of the people actually from the IETF are quoted
in the article as worrying about.
The real problem is content that is intended for a general audience,
but efficient distribution of such information in an anonymous manner
is readily available by simply sending references into Freenet rather
than the actual content data itself. The sending IM peer can verify
that the data is available in Freenet, upload it if necessary, and
then send the Freenet ID text to the receiving IM peer, which can
download the data through a path that has been minimized to the extent
that people "close" to the receiver have previously downloaded that
data. (cf. freenetproject.org)
Now, I'm not exactly on the IETF suggestion-in-box-list, but to me
it's strange that all of these bright people, many likely employess of
AOL-TimeWarner and other large computer and media firms, haven't
figured that Freenet or Freenet-style distribution is a simple
solution to the problem... Of course, I'm being sarcastic, as we
shouldn't be surprised if organizations with the obvious corrolorated
political agendas are reluctant to note that extensive promotion,
product integration, and use of Freenet will help to resolve this
difficulty.
Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Fifty for the contest winners on their couches with remotes...
http://www.suntimes.com/output/tech/cst-fin-micro0 1.html
Is that file name meant to be French, "c'est-fin-Microsoft"?
I agree completely that a ruling in favour of the authors as purported copyright holders will be disastrous for future researchers. But I see the big picture differently than both of you seem to. I think that a ruling for the authors will cause real permanent harm to scholarship, but I don't see this as something that is isolated to this special class of goods, "newspapers", and that because of this the newspapers should (perhaps by 5KVGhost's reasoning?) be given special rights to break copyright law for the good of society.
Instead, I think that it's time to wake people in general up to the notion that clinging to 2nd-millennium thinking about copyrights is going to cause a great deal of harm to academic research, and to society in general. The point should be made that this is just one of many possible examples of how our current copyright laws will stifle what seems like laudable, socially positive action, and cause older works to be inaccessible to future citizens to the benefit of no one.
I'm sure that the people who keep archives of ancient video games, as one particular example, would agree with me whole-heartedly. Those who are furious that, even today, many old films moulder into ruin when they could be processed and saved likely feel the same way.
Never use "protect" or "secure" when what you really mean is "restrict". This one is a favorite of the control industry.
Before listing your shared music on Napster's directory servers, ROT13ster applies the obvious transform to the titles. When searching for music on Napster's servers, ROT13ster uses a special ROT File Lister that applies two behind-the-scenes searches, one with the exact search term that you used and another with the ROT13'd version, and then splices the two search results together for display.
That's right, a system could just be set to check for ROT13'd versions of titles as well, right? Problem: ROT14ster. And for those who will say that there are only 26 ROTXsters, any number of additional permutations can be constructed that will preserve the utility of most partial search terms, and all exact matches.
But having a whole bunch of fragmented possibilities won't do any good, you say, because then how will people know which one to choose? Simple solution again. Provide people Multiple Access Options in their File Lister, so that they can select a whole set of title transforms that they will perform searches on. Make the functional input description of each transform a text string that could easily be copied from a web page.
Now what are RIAA lawyers going to say, "We submit under penalty of perjury that user Gr00v3y was illegally sharing the music of Britney Spears, because using information gathered ... um ... from the web
site of one 3L33T H4X0R in the country of Elbonia, we could perform a
text transform suggested ... so that the title matched with
Oops_I_Did_It_Again ... so Gr00v3y must definitely have been violating
a RIAA copyright, definitely. Please cut his connection."
An easy-to-construct ROT13ster File Lister, along with Multiple Access Options, makes it impossible to muzzle file trading through the Napster servers by attempting to match song title characteristics. That's right, the correct response to any such attempt is ROTFL-MAO.
When you're the richest man in the world and not a single senator speaks up on your behalf, you know you've got problems. - Jeff EisenachTrademarks, service marks, and trade names have one particular reason for existing: to help to avoid customer confusion. We want consumers to be able to make informed market choices by having some assurance that if a product or service is labeled with an identifiable brand, then the same company that they expect from previous experiences is providing that product or service.
However, the vital point is that more than one entity can hold trade name rights to the same sequence of characters. This can happen in a number of ways. For example, the entities could hold rights in separate and non-overlapping jurisdictions, such as one holder in the U.S. and another in Canada, or one holder of a mark in California and another in Florida. Additionally, and even more importantly, two or more entities can hold rights to a mark in the same jurisdiction if they are in sufficiently different businesses that their simultaneous use of the name in the market will not cause consumer confusion. (Remember, this is the only purpose for the legal standing of the marks in the first place.) The classic example here is the mark "United".
Now, modern "intellectual property" lawyers are trying to convince everyone that we should suddenly change everything and ignore the above. Of course, they aren't presenting it that way publicly. What they say is that they are protecting the "intellectual property" and trademark rights of their clients in the new electronic sphere. However, in their actions they are making preposterous claims, and unfortunately many people seem to be accepting their position uncritically.
When you suggest that International Business Machines, the current holder of the ibm.com domain name, has the right to sue for trademark infringement anyone who registers ibm.com, despite the availability caused by, say, a lapse in the domain registration by International Business Machines, you are falling for a line. Why exactly does that IBM have this right? If there's a company in France with the registered French trademark Immeuble Baisemain that puts on a show about selling real-estate, and it's convenient for their customers to call them by a three letter acronym, why shouldn't they have as much right to the domain name as, say, International Business Machines? Can you seriously imagine that their website will confuse people into thinking that they provide computer hardware, software, and consulting services from International Business Machines? And if it somehow does, can't IBM U.S. just sue them?
Isn't it much more likely that the lawyers of the world are just stretching the law in this novel area as far as they think they can take it, simply because it is in their interest to provide their clients with the best possible outcome, justified or not?
So, while I agree with you that the business method that SnapNames is providing is ridiculous and should be superseded by a true secondary market in domain names, I find the reasoning that you use along the way to be dangerously incorrect. What's worse is that, if enough people make the sort of mistakes that you have (and there are plenty who do, you do not need to feel any shame), then the lawyers might be able to successfully argue down the road that consumer confusion will inevitably result in the use of a trademarked term in a domain name by any entity that is not the one among the set of holders of a valid registration that provisions the largest legal department.
---
Q: What is the concept of Fair Use, as you understand it?
Jack Valenti: It means that libraries or schoolteachers can play movies in their classrooms for educational purposes.
This post explains exactly the problem. Managers who act in such a manner that their software is of poor quality have the only hopes of becoming wildly successful in the software business. They are lauded as geniuses and heroes. Meanwhile, people who do things in a manner that takes account of good engineering principles have their code trivially emulated or their formats trivially embraced, and end up making no monopoly rents. Usually they go out of business, despite the geek crowd looking back fondly on their work as visionary.
Sound familiar to anybody? Mark the previous post up to 5 please.
"We will compete with anybody."
- Michael Risse, general manager at a company that complains that all antitrust complaints are instigated by competitors
"Control excess to save?! I KNEW Stallman was a communist!!"
At least the stuff that they add is so poorly edited that it's clear that it is not part of the true, professional Slashdot site.
"We will compete with anybody."
- Michael Risse, general manager at a company that complains that all antitrust complaints are instigated by competitors
I have a suggestion. Should we call writting an article like this that is certain to bring thousands of hits from the Slashdot faithful, followed by inevitable articles that must explain the facts as we almost all agree they are, an example of "karma pimping"?
If I couldn't break it with a hammer and a blowtorch, you shouldn't be able to patent it.
As the name suggests, this language was available with fully validated compilers in 1982, and supported most of the features that are used in this sample, but without a lot of cruft. (Okay, and no object orientation per se, but with almost all of the benefits in this regard that C# seems to allow but done in another fashion.) This sample looks so much like Ada code that it's ridiculous.
Great, so Microsoft is only eighteen years behind on this one! If only their operating systems could keep up with this rate of innovation!
If innovation is rampant in the operating systems market, why can't I get one yet with a capabilities model?
Said one Microsoft executive, "There's so much cut and paste programming going on with our tools, we were continuously having to admonish developers not to run with MScissors."
Windows Me again I'm a masochist!
Don't ignore someone telling you to your face that he is going to send in the "Roman legions" and fight you as World War II was fought, with "more men and women, more weaponry and more money, and [the] money in turn [to] train more men and women and build more weaponry" than you have. This man is very, very powerful and has many strong associates. He has already told you that "being fair, or being just, in a battle for survival is often not enough." Don't doubt that the RIAA heads see this very much as a battle for survival, and keep in mind, as a previous poster has mentioned, that this person, as the head of a company that came to prominence exactly because of bootlegging, is perfectly prepared to be hypocritical without blushing.
This is an astonishing, impressive speech. This is the sort of speech that rallies the troops. These people are not joking around; if you feel that there is a different, better world just around the corner, understand that these people are moving full tilt to extend the wall.
I'm no orator to match with this kind of display, but I hope that in combination with the passions that many of us will feel just reading Edgar Bronfman Jr.'s words, this post can help to clarify to people that we are actually going to have to fight, very strenuously, for the things that we know are right. It's time to actively organize, join and support freedom-loving associations, and take personal responsibility to inform everyone we know about the opportunities and dangers that lie ahead for our societies.
I'm just going to close by restating some of Ed's own words, along with a little bit of dialogue that should clarify this small portion of his deception.
Musician: Hey, did you just copy one of my songs for your friend over the internet?Fan: Yeah.
Musician: But how am I supposed to make money from that?
Fan: Well, I love your music, but this money issue is not really my problem. Of course, I'm happy to support you in various ways, but you really can't stop me from doing this.
Musician: But that's an appropriation of my intellectual property. You're coercing me into writing music for your friend.
Fan: Hey, I didn't force you to record the song.
Musician: Well, there are laws about this sort of thing. I'm going to make sure that you comply with them.
Fan: Um... that's going to require putting together a police state. How can you tell whether or not I share information with my friends without verifying all information that passes between us? Won't you have to allow the police blanket rights to search my possessions for violating material? Are you going to outlaw the internet? I don't think that you want this.
Musician: Oh... I didn't realize... I hadn't thought about that... no, okay, I guess that I really don't want that.
============================
Musician: I'd like to make some new music and release it as MP3s.
RIAA: I'm sorry; no. Read your contract.
"It is therefore sickening to know that our art is being traded ... like a commodity rather than the art that it is." - Lars Ulrich, Metallica
Windows Me again I'm a masochist!
There has been a lot of noise about how to reconcile domain names with trademarks over the last while. Personally, I can't see why we've let this happen. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word: "jurisdiction". If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
These two essential contradictions look like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. Note that this is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, as a state might defer to national registrations - or better yet, put together the technical means to include those registrants automatically in your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
Followed by Maurice - And probably the most important thing, that greatly helped in the orbit calculation -- the FFT algorithm. Yep. It's not called "Fast" for nothing you know. It's probably not an exaggeration to say that FFT got man to the moon.
Actually, I'm not sure that even the FFT is fast enough to have done useful work on the machinery available for the moon launches. You still have to store a whack of data to have it do any good, right? While there may have been some use made of FFT, the real heroic algorithm, and one that you don't often hear praises sung for, was the Kalman filter. In brief, the Kalman filter allows you to track a linear signal that exhibits some random dynamics given only noisy observations of that signal. The nice property it has is that it can compute an estimate recursively, which is to say that in the particular situations for which it is suited, it is MUCH faster than other methods available at the time. It was used as the essential mathematical component of the control systems for the moon landings.
If you look at any texts from the '70s about stochastic filtering, they all go crazy about the Kalman filter, try to do some nonlinear stuff, and then have numerous chapters at the end with titles like "Application - Orbit Tracking", or "Application - Reentry". Cool stuff.
There has been a lot of noise about how to reconcile domain names with trademarks over the last while. Personally, I can't see why we've let this happen. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word: "jurisdiction". If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
These two essential contradictions look like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. Note that this is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, as a state might defer to national registrations - or better yet, put together the technical means to include those registrants automatically in your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
[Sorry it doesn't say anything about ICANN directly; I still think it's on topic. Also, I support opening all possible character combinations for unrestricted TLD registration, as has been suggested before.]
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word. If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
This looks like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. This is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, such as a state might defer to national registrations - or better yet, put together the technical means to include those registrants directly on your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
I think the remedy question is very, very difficult. However, I think that it is an important one and something that should have a lot of critical thought put into it. In particular, the question of who is served is paramount. Microsoft is almost certain to be found guilty, but we need to determine if there are remedies that can cause consumers to become better off than they would otherwise be.
First of all, just about ALL the *specific* issues that were argued in the anti-trust trial (ISP arm twisting, browser bundling, etc) are already obsolete (did you notice how nobody is suggesting these days that MS should seperate the browser from the OS?) . This raises profound questions:
* how must a monopoly in software be proven? And how can its misuse be proven?
* how must the remedy be issued, when you know for certain that by the time you make the judgement, the original complaints are obsolete in this fast moving industry.
These comments indicate a confusion of the issues. The specific issue that is argued in the anti-trust trial - that Microsoft is using its monopoly in PC operating systems to stifle legitimate innovations that might reduce the power of that monopoly - is certainly not made obsolete by its success in drowning those innovations. (Don't believe that this is what the trial is about? Check out //http://www.usdoj.gov/atr/cases/f2600/2613.htm ) Asserting this is like letting a serial killer go free because all of his victims are already dead - what remedy is there for them? So, the original complaint is not obsolete, only some of the direct victims of the questionable Microsoft policies.
Because of this, the second starred question is not clearly relevant. The "fast moving industry" line is a simple but common red-herring, if it is even true for operating systems. (We've all been waiting fifteen years for Microsoft to release an operating system that is as stable as MS-DOS, which was itself perhaps ten years behind the OS industry's front line.) The remedy question is perplexing, but it is certainly not clouded by the fact that successful anti-trust violations can destroy entire companies and even sub-industries quickly. Of relevance is that these violations can have long-term effects on potential software innovators, and it is this that the remedies must take into account.
Also, just because no one you work with at your workplace is suggesting that IE should be separated from Windows does not mean that there aren't people who understand right away that it is a good thing to do. In fact, the inappropriate coupling of the two is one of the main reasons that I switched to Linux. And don't imagine that I think of Linux as a great operating system (yet). It is simply not an appropriate option for the great majority of people. (It's also not in the relevant market - it's provided for free by volunteers who might otherwise have better things to do - but that's another issue.)
The first starred questions are more than adequately answered by the example of the above link. It can certainly be shown that a software property holder is a monopoly, and that that monopolist is abusive in an anti-trust sense. One can argue, largely against the evidence, that such a legal judgement does not apply to Microsoft, but one cannot argue with the bases upon which such a legal judgement is made, since they are a part of the law. The tests are fairly explicit, and involve determination of barriers to entry, the power to raise prices above (economic) costs, the legitemacy of product tying, and the foreclosure of markets. So, there are no real questions about what it means to determine that a software property holder is guilty of anti-trust violations. One can argue that all of anti-trust law should be thrown out as immoral, but probably more people felt that way before Microsoft came on the scene than after, and I won't deal with that question here.
For starters, monopoly for MS is not as simple as it appears, since you're narrowing the industry to the "PC operating systems" arena. If you narrow down segments of industry, Oracle is a monopoly in the midrange server database market (HP tunes its OS to run faster on Oracle, is that a sign of too much power?), and IBM is a monopoly in the mainframe database segment (easily more than 90% of S/370 machines use DB2, both of them ibm products). Similarly, Palm may be said to be a monopoly in the handheld segment.
I think if any of the above companies were subject to the same scrutiny as MS, there would be several issues of leverage of market share.
It has not been determined that Oracle or Palm have significant barriers to competitive entry or the power to raise their prices above economic costs. Remember, market share is irrelevent to determination of a monopoly. In the case of IBM's mainframes, there has been no recent determination that anti-trust violations have occured, if it could even be shown that a monopoly existed for a market that seems so suceptible to lower-priced substitution. If any of these facts change, then by all means anti-trust enforcement should (and I imagine will) be applied.
Keep in mind that one major reason for IBM's downfall was a 10 year lawsuit by the same Dept. of Justice. The case? IBM was bundling its mainframe hardware, OS, and database products. At that time, geeks were cheering on two young companies that dared to take on the evil monolithic empire - Microsoft and Apple.
Well, guess what? 20 years later - IBM is STILL bundling its hardware, OS, and database products. Why is the DoJ not caring? Because it's a dead, obsolete market. The mainframe has been overtaken by the PC, and all the issues that were so fiercely argued decades ago, became irrelevant. It's the same deal. IBM caved in due to the lawsuit, which resulted in literally a warehouse full of documents they had to shovel around.
Should IBM have been hurt so badly because it played rough in the mainframe market, knowing that it was an unquestioned giant (and not knowing that it was surrounded by nimble, faster velociraptors)? Because of the DoJ case, IBM had reached the point where lawyers were attending every meeting, and had to approve of every plan. It killed them. Did they deserve it?
First, it must be noted that IBM is far from dead. In fact, evidence was introduced into the Microsoft trial indicating that its revenues were higher than those of any other company in the computer industry. However, it is true that it no longer engages in policy that violates anti-trust regulations, such that government oversight is determined to be required. Its mainframes are profitable but subject to substitution and it makes a nice, tidy business out of competing head-to-head, with no inherent advantage, in the brutal battle for desktop PCs. Is this the IBM "downfall"? It seems to be completely reformed, and as such, its example seems to be an odd basis upon which to insist that the anti-trust action should not have been taken.
This argument, in its various manifestations, tries to have it both ways. On one hand, it proposes that IBM was unfairly hurt by the trustbusters. On the other hand, it insists that the enforcement was misguided because Microsoft came along and out-competed IBM in a way that had nothing to do with the anti-trust actions. Well, which is it? If Microsoft would have out-competed IBM anyways, then why was the enforcement such a blow? As it turns out, this is the center of one of the great ironies of the Microsoft anti-trust trial.
Think about it seriously - if you were an IBM executive in 1977 just about to introduce a new product line, would you prefer to also provide an IBM operating system for the project, as had been done with all other IBM computing products up to that time, and which had always worked to IBM's advantage in such concrete ways that IBM was under anti-trust regulation for that reason; or would you rather license the operating system from some external source with no control over its eventual deployment or development? People often hypothesize that IBM simply dropped the ball, that they didn't realize how important microprocessor-based computers would become. But is that really a sensible conclusion? It seems like the largest mistake in the history of computing from our vantage point, and can it really have seemed like a much better decision at the time? Not to belabour a point, but would you ever, ever, in a million years, even without the benefit of hindsight make such a decision? Well, of course you might - if there were an anti-trust lawyer in the room with you as you made it.
So what would have been the result with no oversight of IBM's activities? Likely, IBM would still control all aspects of most computers. They would have a full lock on both hardware and software, with vast barriers to entry that we can hardly imagine. IBM would certainly have easily crushed any attempt by a fledgeling Microsoft to innovate on and replace the operating system base. It's likely that Microsoft would never have even tried. We can doubt whether IBM would have ever needed to add a graphical shell, had ever needed to follow any outside networking standards. It is a world without vast sources of innovation - just ask Microsoft.
The entire tragi-comedy appears in full splendour now. Microsoft is fighting tooth-and-nail against the very anti-trust activities upon which it was reared. It's like legal Oedipus. There's more - consumers now seem to have benefitted dramatically from the IBM action. Not only did it bring about the rise of Microsoft products, but also GUIs, clone hardware, WYSIWIG, spreadsheets, even PC databases. So we should always have regulators sitting in the offices of our most powerful computing companies, right?
I don't think so. You may think MS is truly bad and evil, but the reality is they are just like any other company. And the reality is also that it's better for the govt. to stay away. This is very difficult to realise when you hate Microsoft so badly, but keep in mind that many young geeks hated IBM just as badly, and the point still stands - if you wound a company that will be obsolete in a decade or two because it played rough, it will always be unfair from a historical viewpoint.
The humour here is that they are just like one other specific company. Who exactly is it unfair to from a historical viewpoint? Why exactly should the government stay away? Does anti-trust action really hate Microsoft, or does Microsoft just dislike the successful relationship anti-trust has with IBMom? There are thousands of sons who hate their father, and there are thousands of geeks who are just waiting to spring their innovations upon the world, delayed only by the power of the Microsoft they hate.
Keep the long view in mind. Breaking up the company may seem tempting, but you'll only hurt the industry - the same way the DOJ's interference in IBM's day-to-day affairs hurt the mainframe market nobody cares about now. Keep that in mind.
It is apparent from the historical evidence that severe anti-trust interference need not hurt consumers in the long term. However, this is not a carte-blanche for government takings, even against monopolists. Clearly, there are remedies that will be unfair to the shareholders of the monopoly firm. As well, there is no evidence to support the idea, jokingly proposed above, that consumers would be better off with constant government intrusion into the activities of the industry leader. In fact, there are plenty of reasons to believe that such regulation would be very bad for consumers, as Microsoft is careful to point out. However, the consumer benefits of some sort of action are becoming more and more identifiable, and significant legally determined violations of anti-trust law must be met by some remedy. It is perhaps not possible to select an anti-trust action that will, in concert with intellectual property and other law, cause the software industry to act in the consumers' interest without any requirement for anti-trust action to be taken again in the future.
This is why the remedy question is so difficult. Of all the shades of grey, we have to find the one that most benefits the customer without unfairly taking from the violating, but merely profit driven, monopolist.
Sons should not have to hate their fathers, and hackers should not have to hate Microsoft. Microsoft should not have to hate the Department of Justice, but what other option do we have at the current time? Clear customer benefit seems likely to result from any serious enforcement. Perhaps a better system of laws can be developed for software property that does not pit the industry leader against the trustbusters for doing what will naturally cause business profit. Until then, severe anti-trust action seems to be the best option consumers and the industry have.
However, you have left no way to reach you. If you read this, please send me an email.