No, I'm thinking of affadavits. See Federal Rule of Civil Procedure 56(e). On motions for summary judgement, parties can offer affadavits setting forth "such facts as would be admissible in evidence" (emphasis added). Plus, they are also of great weight when negotiating a settlement before trial...
As far as their value in a trial goes, you are correct.
Affadavits can be used to negotiate with the other side, and as evidence in the summary judgement phase of a trial, to show what evidence will be offered at trial. So, they are useful.
The link to the "real" patent for the screen cover protector is probably a hoax. As far as I know, the patent number that is referenced in the article, "US patent #RE.35,318", is nonsensical.
Maybe this is sort of like how the New York Senate candidates were fooled by the fake, and also nonsensical, bill number for the alleged postal tax on email.
Part of the problem that Lessig addresses is that Congress has the constitutional power to grant copyrights. So, traditionally, courts have had a good excuse to just say that the First Amendment is not an issue in copyright cases. Limits to copyright such as fair use (reverse engineering, sampling, parody, etc) have addressed many of the free speech concerns.
The reason that courts may be able to get to the right result in the DeCSS case is because, first of all, it is not clear that Congress was acting in its copyright power. Therefore, the traditional First Amendment analysis may apply. Second, because the DMCA effectively eliminates fair use, it is difficult for a court to say that the First Amendment is not applicable.
So, the DeCSS case will really be a good indicator of which way things will go. If the DMCA anti-circumvention provisions survive, then copyright could continue to be a special area immune from the First Amendment. This would be a bad thing. But, if the Second Circuit and/or the Supreme Court strike it down, it could open up a whole world of possibilities for free speech on the Internet.
This law is simply ineffective. Federal copyright law forbids states from giving copyright-like rights. See 17 U.S.C. 301(a), which says, in part:
All legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . in works of authorship that . . . come within the subject matter of copyright . . . are governed exclusively by this title. Therafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
So, the legal analysis doesn't even get to the First Amendment or fair use!!
The main problem with ICANN seems to be its ineffective safeguards against allowing large corporate trademark holders to commit reverse domain name hijacking. Hence, the freedom to protest and comment on public issues is more limited. Further, the high cost of getting new TLDs is not conducive to the little guy having any control over the new namespace.
The district court in the DeCSS said that it does not matter if the anti-circumvention provisions prevent fair use. The judge claimed that that must have been the way Congress intended it to be. Of course, this nonsense should be reversed, but that won't directly follow from the Connectix case.
Who said anything about "fighting" consumerism? There can be a happy compromise. Do you really want your kids to grow up thinking that happiness comes through shiny things? It is not true.
Try a Christmas holiday without consumerism. Your electronic appliances work just fine without replacing them. Spend some time with friends and family. Save some money. Enjoy yourself.
Someone could sue DC to get a declaratory judgment that it is okay to reverse engineer and write software for the CueCat. The complaint would look something like this:
1. The CueCat is a bar code reader (explain it).
2. I would like to reverse engineer the CueCat and write software to intercept the data (explain how).
3. DC is sending out vague cease and desist letters (attach an example).
4. On information and belief, DC has no patent on the CueCat.
Then move for summary judgment asking the judge to rule that there are no patent or copyright rights in the CueCat and that you can reverse engineer it. The plaintiff wins (without having exposed himself to risk). Now, everyone can point DC to a legal decision.
Re:Making bucks off someone else's rep
on
Typosquatting
·
· Score: 2
I guess our disagreement comes down to whether a URL is more like an address or a name on a sign. I think that it is more like an address. You type in where you want your browser to take you; you don't look at a list of URLs and say "look, there is McDonald's; I want to go there" but end up at MacDonald's. I guess if the name turns up in a search engine, your analogy would be closer. So, maybe it's more of an empirical question about how people browse.
Re:Making bucks off someone else's rep
on
Typosquatting
·
· Score: 2
Your McDonald's analogy is imperfect. On the web, people don't go to the typo-site because they believe that it is McDonald's. They go there because they mistyped the address.
A closer analogy would be if Burger King set up a store at 123 N. Main St., while McDonald's was at 123 S. Main. St.. People know where they are, they just got the address wrong. The misdialed phone number analogy is also good...
I have set up a few typo-sites that are based on a common misspelling of "news." The sites are non-commercial and I get no ad money. Unfortunately, I get very few hits (less than 20/day each)...
Here is a quick legal analysis from a law student (incapable of giving real legal advice):
As the question implies, an application for a patent requires the inventor to sign an oath that "he believes himself to be the original and first inventor of the [invention]." See 35 U.S.C. 115. You appear to believe that the patent covers more than original ground.
Now, if you don't believe that the oath is true, but you sign it, you may open up the patent to be completely unenforceable due to "inequitable conduct." While I'm not sure that this idea has been used in precisely your case, it still seems to apply. The trick is, someone that your company is enforcing the patent against has to know that you signed the false oath; how would you answer the question if asked by a lawyer? You may want to point this out to your employer.
Your contract to sign over all IP may or may not require you to sign the oath. Look at it more closely. Of course, unless you want to cause trouble, you may just want to sign the thing...
Section 103(d)(2)(B) of UCITA indicates that UCITA does not apply to agreements (licenses) to "create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display: a motion picture, sound recording, musical work, or phonorecord" (emphasis mine).
So, the Act explicitly keeps the DVD license issue out of its scope.
I am a law student and do not pretend to be qualified to give legal advice, but I think that the above posts which reveal the "secret" eliminate any basis for Microsoft to call this a trade secret. Once it is in the public, it is not a trade secret.
A similar case was presented in Religious Technology Center v. Netcom, 923 F. Supp. 1231 (N.D. Cal. 1995), where the judge held that RTC was unlikely to succeed in a trade secret suit against someone who had obtained the documents on USENET. The judge said that "although a work posted to an Internet newsgroup remains accessible to the public for only a limited time, once that trade secret has been released into the public domain there is no retrieving it."
Now, the poster may be liable for breaching the contract, but it is no longer a trade secret...
I am a law student who has studied copyright, but I don't pretend to be a lawyer yet...
I've looked through all of these messages here, but I've seen no one suggest the obvious: use the DMCA and send Ebay a counternotice.
The procedure for a counternotice is in the DMCA / Copyright Act at 17 U.S.C. section 512(g)(3). It must include the following: (A) A physical or electronic signature [of yours]. (B) Identification of the material that has been removed... and the location of the material. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material. (Me: you would base your faith on the first sale doctrine discussed elsewhere). (D) [Your] name, address, and telephone number, and a statement that [you consent] to the jurisdiction of Federal District Court for the judicial district in which the address is located...
Of course, this would force the CoS to sue you in court or leave you alone. In my non-expert opinion, they would fail miserably but you may not want to risk them actually trying to sue you.
With statutory damages under 17 U.S.C. section 504(c), Dr. Dre can get a minimum of $500 from you for each of his copyrighted works that you copy. The maximum goes up to $100,000 if you willfully violated the copyright. The actual damages will be set by what the judge considers "just." That could be anything, but it will be a lot more than 16.6 cents!!
Or Freenet could simply swallow the Web by adding a node for each WWW URL that existed. A node that started with "http:" could automatically load the web page if queried by a Freenet client, or this could be built into the Freenet architechture itself.
This really doesn't change much. The ruling simply confirms that code is speech, but that doesn't mean that it can't be regulated.
What is interesting is that the Court adopted a slightly stricter test than has been "traditionally" required. This is the test used in Turner Broadcasting where the government not only has to prove a substantial government interest in regulating the non-speech expressive elements (the court never said that code was 100% speech), but has to demonstrate that there was evidence for the government to conclude that it was necessary to regulate the speech.
So, this ruling may be used to persuade other courts that the government had to have a good reason to enact the DMCA if it regulates speech. It will help programmers and free speech advocates, but it is NOT a home run.
Note: I have taken great liberties with the actual legal standards here, but this is all basically accurate.
Slashdot Mirror
No, I'm thinking of affadavits. See Federal Rule of Civil Procedure 56(e). On motions for summary judgement, parties can offer affadavits setting forth "such facts as would be admissible in evidence" (emphasis added). Plus, they are also of great weight when negotiating a settlement before trial...
As far as their value in a trial goes, you are correct.
Affadavits can be used to negotiate with the other side, and as evidence in the summary judgement phase of a trial, to show what evidence will be offered at trial. So, they are useful.
I can vouch for the fact that NSI has released, albeit several months after expiration, an unused domain that I have always wanted to aquire.
So, it does happen...
The link to the "real" patent for the screen cover protector is probably a hoax. As far as I know, the patent number that is referenced in the article, "US patent #RE.35,318", is nonsensical.
Maybe this is sort of like how the New York Senate candidates were fooled by the fake, and also nonsensical, bill number for the alleged postal tax on email.
All of the article is in the icann1.pdf file, it seems.
Part of the problem that Lessig addresses is that Congress has the constitutional power to grant copyrights. So, traditionally, courts have had a good excuse to just say that the First Amendment is not an issue in copyright cases. Limits to copyright such as fair use (reverse engineering, sampling, parody, etc) have addressed many of the free speech concerns.
The reason that courts may be able to get to the right result in the DeCSS case is because, first of all, it is not clear that Congress was acting in its copyright power. Therefore, the traditional First Amendment analysis may apply. Second, because the DMCA effectively eliminates fair use, it is difficult for a court to say that the First Amendment is not applicable.
So, the DeCSS case will really be a good indicator of which way things will go. If the DMCA anti-circumvention provisions survive, then copyright could continue to be a special area immune from the First Amendment. This would be a bad thing. But, if the Second Circuit and/or the Supreme Court strike it down, it could open up a whole world of possibilities for free speech on the Internet.
Hey, the French sued Yahoo because its yahoo.com site allowed french people to access Nazi auctions. So, hey, they should be able to sue MS, too.
This law is simply ineffective. Federal copyright law forbids states from giving copyright-like rights. See 17 U.S.C. 301(a), which says, in part:
All legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . in works of authorship that . . . come within the subject matter of copyright . . . are governed exclusively by this title. Therafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
So, the legal analysis doesn't even get to the First Amendment or fair use!!
The main problem with ICANN seems to be its ineffective safeguards against allowing large corporate trademark holders to commit reverse domain name hijacking. Hence, the freedom to protest and comment on public issues is more limited. Further, the high cost of getting new TLDs is not conducive to the little guy having any control over the new namespace.
The district court in the DeCSS said that it does not matter if the anti-circumvention provisions prevent fair use. The judge claimed that that must have been the way Congress intended it to be. Of course, this nonsense should be reversed, but that won't directly follow from the Connectix case.
Who said anything about "fighting" consumerism? There can be a happy compromise. Do you really want your kids to grow up thinking that happiness comes through shiny things? It is not true.
Try a Christmas holiday without consumerism. Your electronic appliances work just fine without replacing them. Spend some time with friends and family. Save some money. Enjoy yourself.
Check out The Center for a New American Dream.
Someone could sue DC to get a declaratory judgment that it is okay to reverse engineer and write software for the CueCat. The complaint would look something like this:
1. The CueCat is a bar code reader (explain it).
2. I would like to reverse engineer the CueCat and write software to intercept the data (explain how).
3. DC is sending out vague cease and desist letters (attach an example).
4. On information and belief, DC has no patent on the CueCat.
Then move for summary judgment asking the judge to rule that there are no patent or copyright rights in the CueCat and that you can reverse engineer it. The plaintiff wins (without having exposed himself to risk). Now, everyone can point DC to a legal decision.
I guess our disagreement comes down to whether a URL is more like an address or a name on a sign. I think that it is more like an address. You type in where you want your browser to take you; you don't look at a list of URLs and say "look, there is McDonald's; I want to go there" but end up at MacDonald's. I guess if the name turns up in a search engine, your analogy would be closer. So, maybe it's more of an empirical question about how people browse.
Your McDonald's analogy is imperfect. On the web, people don't go to the typo-site because they believe that it is McDonald's. They go there because they mistyped the address.
A closer analogy would be if Burger King set up a store at 123 N. Main St., while McDonald's was at 123 S. Main. St.. People know where they are, they just got the address wrong. The misdialed phone number analogy is also good...
I have set up a few typo-sites that are based on a common misspelling of "news." The sites are non-commercial and I get no ad money. Unfortunately, I get very few hits (less than 20/day each)...
See foxmews.com, cbsmews.com, and nbcmews.com.
Here is a quick legal analysis from a law student (incapable of giving real legal advice):
As the question implies, an application for a patent requires the inventor to sign an oath that "he believes himself to be the original and first inventor of the [invention]." See 35 U.S.C. 115. You appear to believe that the patent covers more than original ground.
Now, if you don't believe that the oath is true, but you sign it, you may open up the patent to be completely unenforceable due to "inequitable conduct." While I'm not sure that this idea has been used in precisely your case, it still seems to apply. The trick is, someone that your company is enforcing the patent against has to know that you signed the false oath; how would you answer the question if asked by a lawyer? You may want to point this out to your employer.
Your contract to sign over all IP may or may not require you to sign the oath. Look at it more closely. Of course, unless you want to cause trouble, you may just want to sign the thing...
Different parts do kick in at different times.
Right now, it is (assumed to be) a violation to distribute DeCSS. After Oct. 28 it will be a violation to use DeCSS.
Section 103(d)(2)(B) of UCITA indicates that UCITA does not apply to agreements (licenses) to "create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display: a motion picture, sound recording, musical work, or phonorecord" (emphasis mine). So, the Act explicitly keeps the DVD license issue out of its scope.
I am a law student and do not pretend to be qualified to give legal advice, but I think that the above posts which reveal the "secret" eliminate any basis for Microsoft to call this a trade secret. Once it is in the public, it is not a trade secret.
A similar case was presented in Religious Technology Center v. Netcom, 923 F. Supp. 1231 (N.D. Cal. 1995), where the judge held that RTC was unlikely to succeed in a trade secret suit against someone who had obtained the documents on USENET. The judge said that "although a work posted to an Internet newsgroup remains accessible to the public for only a limited time, once that trade secret has been released into the public domain there is no retrieving it."
Now, the poster may be liable for breaching the contract, but it is no longer a trade secret...
See the Freenet web page.
I am a law student who has studied copyright, but I don't pretend to be a lawyer yet...
... and the location of the material.
I've looked through all of these messages here, but I've seen no one suggest the obvious: use the DMCA and send Ebay a counternotice.
The procedure for a counternotice is in the DMCA / Copyright Act at 17 U.S.C. section 512(g)(3). It must include the following:
(A) A physical or electronic signature [of yours].
(B) Identification of the material that has been removed
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material. (Me: you would base your faith on the first sale doctrine discussed elsewhere).
(D) [Your] name, address, and telephone number, and a statement that [you consent] to the jurisdiction of Federal District Court for the judicial district in which the address is located...
Of course, this would force the CoS to sue you in court or leave you alone. In my non-expert opinion, they would fail miserably but you may not want to risk them actually trying to sue you.
With statutory damages under 17 U.S.C. section 504(c), Dr. Dre can get a minimum of $500 from you for each of his copyrighted works that you copy. The maximum goes up to $100,000 if you willfully violated the copyright. The actual damages will be set by what the judge considers "just." That could be anything, but it will be a lot more than 16.6 cents!!
Or Freenet could simply swallow the Web by adding a node for each WWW URL that existed. A node that started with "http:" could automatically load the web page if queried by a Freenet client, or this could be built into the Freenet architechture itself.
This really doesn't change much. The ruling simply confirms that code is speech, but that doesn't mean that it can't be regulated.
What is interesting is that the Court adopted a slightly stricter test than has been "traditionally" required. This is the test used in Turner Broadcasting where the government not only has to prove a substantial government interest in regulating the non-speech expressive elements (the court never said that code was 100% speech), but has to demonstrate that there was evidence for the government to conclude that it was necessary to regulate the speech.
So, this ruling may be used to persuade other courts that the government had to have a good reason to enact the DMCA if it regulates speech. It will help programmers and free speech advocates, but it is NOT a home run.
Note: I have taken great liberties with the actual legal standards here, but this is all basically accurate.