It is very tricky to argue against complex clip-wrap licenses that would be allowed by UCITA, but support licenses such as the GPL (basically a click-wrap).
Actually, an even better and more Constitutionally appropriate question is: How much are such laws actually promoting the progress of the "Science" of television programming?
Copyright promotes "Science" and patents promote "useful Arts." Seems like Congress has gotten a little carried away with copyright, eh?
I think that this would be protected under the reverse engineering exception to the DMCA. See 17 U.S.C. 1201(f).
In the DeCSS decision just released, the judge noted that the exception didn't apply because the exception applied only to software and there was no evidence that the program was written for te "sole purpose" of achieving interoperability. Since you are working on software and can probably put together some evidence of this (in the DeCSS hearing, they simply failed to send in their affadavits in time!) then you should be okay.
I highly doubt that MP3.com would sue you under these provisions. They have a strong interest in not seeing copyright law strengthened, and it would be their technological measure that you would be circumventing...
Standardized tests are not good indicators of intelligence/success, whatever that is...
Minorities traditionally do not do well on such tests. This new test provides another means of gauging the skills that schools might not be able to measure with a standardized test. Not only does the proposed test deal with engineering skills, but also communications and leadership skills (yes, these DO have value). It is just as arbitrary a choice as the SAT.
Many countries have signed a treaty which gives national status to inventors from other countries who wish to apply for patents. Thus, if you apply for one in your country, it is probably equivalent to applying in the U.S. (provided that you actually do apply within a year).
Furthermore, the Internet is an international beast. If someone infringes a patent from *any* country over the Internet, an infringement award can probably be had...
So, just because the U.S. has the most aggressive patent system doesn't mean that you can do much.
By the way, simply publishing an invention has the same effect as patenting it. The only thing is that a patent is presumed to be valid, so it is a big advantage to have one.
Well, there was a case before where a US Dictrict Court found that a spammer was probably tresspassing after Compuserve told them not to use its mail servers, but they did it anyway. So, in this case, eBay probably told the indexer to stop, but they didn't. Hence, the trespass on eBay's servers... Of course, the Compuserve case was only a holding to extend a preliminary injunction.
Seems kind of silly. Compuserve somehow convinced the Court that the spammer was causing performance problems by using the servers, and the court noted this. So, maybe it might not hold if the truth of the minimal intrusion is made known.
This also has broader implications for the open, shared information qualilities of the web. Hell, in common law trespass, you don't even have to know that you are "tresspassing" to be guilty of such!
It would be nice if technology could exist in a vacuum, but it doesn't. The issues being raised in Seattle are highly relevant to nerds: Technology, trade, the environment.
If you ask me, all of the./ advertiseme.. I mean news items about new gadgets, don't belong. But, I have different ideas about what "matters."
I think that you are right. A website by itself is not enough. See, e.g., Cybersell v. Cybersell, 130 F.3d 414 (9th Cir. 1997). Several circuits probably agree (you mentioned a 7th circuit case)...
But, in this case, the company has not only set up a website, but will begin the process of conducting business on the Internet. Numerous courts have found that there is jurisdiction over defendants on the basis of their contacts with the forum state through the Internet. See, e.g., Compuserve v. Patterson, 89 F.3d 1257 (6th Cir. 1996) (Patterson, who had no other contacts with the state, transferred files to Compuserve in Ohio for distribution), Playboy v. AsiaFocus International, 1998 U.S. Dist. LEXIS 10359 (E.D.Va. 1998) (defendant was a foreign company who infringed on Playboy's copyright in the forum state because the website was targeted there).
I think that the moment that the company in this case completes a sale and ships a product into the United States that they will be sued for patent infringement and that there will be jurisdiction. Of course, neither of us can be sure because there hasn't been a case that has dealt with this specific issue. Let's wait and see.
By the way, it's quite fun to run into someone on/. with a good understanding of the law!
True, but it is relatively easy to get specific jurisdiction for a patent infringement claim if the UK company ships its product into the US or interacts with US users via the web. Since the lawsuit would be about the use of the website itself, I doubt that a court would say that that is an insufficient basis for jurisdiction.
Of course, a court will not exercise personal jurisdiction if it would be "unfair," but that is veru hard to show...
I actually did a research project on this very question over the summer at an IP law firm. Your first reaction might be to say "no" because you are not in the US.
But... it is patent infringement to import into the United States a product made with a patented process. Also, an argument could be made that part of the process is actually conducted in the US, when the user (a US customer) orders a CD on the Internet.
My conclusion in the memo I wrote was that there is nothing stopping a US court from finding you guilty for patent infringement except diplomacy and good sense.
So, be careful! Read the patent closely, find prior art, etc...
Some consumer advocates oppose the relaxation of notification and information laws put in place by the states. For example, the bill would eliminate in many cases the requirement that banks notify their customers of agreements via snail mail. Email addresses are not as reliable as the USPS, they argue.
The bill doesn't simply say that electronic signatures are valid. THEY ALWAYS HAVE BEEN!
Congress has specifically decided that interactive computer services like Yahoo are not liable if they undertake efforts to censor "objectionable" material. See 47 U.S.C. 230.
Here is an excerpt:
(c) Protection for ''Good Samaritan'' blocking and screening of offensive material (1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of - (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Section 230 of the Telecommunications Act of 1996 provides protection for "good samaritan" blocking of "objectionable material." If an "interactive computer service," e.g. Yahoo, decides to "restrict access to or availability of" their content, then they "shall not be held liable" nor "treated as the publisher or speaker of any information provided."
In short, Congress has changed the common law, which you have correctly identified.
I think that I have confused two concepts: 1. The courts' willingness to enjoin an employee from working for a competitor when the employee breaches the employment contract, and 2. The courts' willingness to enforce con-compete clauses of contracts.
I seem to remember from my contracts course in law school that one of these existed. Or, are both wrong?
You have no right to make a living as you wish. Prostitutes are the perfect example.
In the case of non-compete clauses, courts have generally enforced them. While a court, under the common law, will never force you to do a job (13th Amendment helps), they CAN force you not to work somewhere else if it violates your contract with your former employer. But, it would be great if more courts did side with the little guy like this!
The classical argument for such agreeements is that the employee consented to the clause and therefore knew what he was doing when he signed away his freedom to work at a competitor. These are good for the employer to the extent that they protect trade secrets and hurt the competition. They are good for the employee to the extent that the employee might get a higher salary in return.
On the other hand, this was likely a boiler-plate contract that the employee had no real control over (no sign, no job). Thus, is there really consent? It would amount to near slavery to force the employee to stay on the job or leave the industry. I would agree that such a contract provision is unconscionable, particularly in the Internet industry where time flies.
Microsoft does NOT have to use (tm) in order to keep its trademark. It merely puts the world on notice that they have a presumed federal monopoly on the name (for certain uses).
The only problem here is persuading Coca Cola that cocacola.com should be free for the taking...
If you are going to enforce trademarks at all, why restrict it to just a slice of cyberspace? The motivations for enforcing trademarks still apply to the.com domains, even if they are international and if you have set aside a.tm.us space. For example, what about a situation where a strictly US company registers a.com that infringes a US trademark? The international argument is sort of moot.
Well, I think that it is a stretch to say that the NSI is not capable of handling trademark disputes. But, you are right, they would probably do a pretty poor job. I also agree that they do not have legal power to settle the disputes. That doesn't mean, however, that they should not be liable for ignoring Lockheed's complaint and at least attempting to make a decision. They could possibly learn to do trademark decisions (non-binding on the parties of course, but can filter out obvious infringement).
While I agree with your perspective, I think that there is a good argument for holding NSI responsible.
Whether or not NSI likes it, they have taken up the huge (and lucrative) job of coordinating the registration of most of the domain names on the Internet. Most registration goes through them.
NSI is the party that could most cheaply make a decision about whether a serious trademark violation occurs and solve the problem. If, for example, Lockheed can show NSI that it holds several registered "Skunk Works" trademarks, NSI can "hold" ownership of the domain or block registration until a court decides. NSI claims that the registration process is entirely automated. That is true, but as soon as Lockheed has brought the issue to NSI's attention, NSI can no longer claim that there is nothing that it can do. There is at least some degree of fault here.
The alternative (chosen by the court in this case) is to force Lockheed to go straight to court and let the infringer keep the site in the meantime. Given the judicial backlog that exists right now, it is probable that it would be some time before a court would make a decision. In the end, for an obvious infringement case, the court will have spent many taxpayer dollars to reach a decision that the NSI might have made quickly on its own.
The main problem with this argument is that the NSI would basically become the court and use up just as many judicial resources. But, keep in mind that this would be a very specialized "NSI court" that dealt only with Internet domains and trademarks. Plus, maybe the courts could decide to hold NSI liable only if they completely ignore a trademark holder's plea for help (the current policy). There is no reason that the NSI couldn't act as a filter to solve the "obvious" trademark problems, while the slower and more expensive courts are reserved for the "tough" problems.
It has been a common practice for companies alleging trademark infringement in domain names to also sue NSI. I don't think that NSI has ever been held responsible. This is related to the/. story from a while back about how some Court was the owner of several offensive domain names. NSI, in order to continue its luck in avoiding liability, routinely gives domain names to the Court as soon as there is a suit regarding the domain. That way, their hands are clean.
Since your transaction with the car rental agency did not all occur on-line, the patent is not infringed. Besides, they can't make money from Amazon for suing against an issued patent. What would the claim be?
1. Have the patent reexamined, in light of printed publiciations (might possibly include web sites) that disclosed the invention one year before the application was filed. This is relatively cheap: $2000 or so. But, it is limited to printed publications one year before the application.
2. File for a ruling in a Court that the patent was obvious, old, already disclosed, some other basis. This is very expensive: tens or hundreds of thousands of dollars and years of litigation.
I was going to make a project of having bad patents reexamined in light of printed publications more than one year old, but I don't know how to raise the $2000 a pop. By the way, Slashdot probably does NOT infringe the patent, because all of the claims are limited to "ordering" and "purchasing." The specification does not seem to use these terms in a way that would include the Slashdot model.
Slashdot Mirror
It is very tricky to argue against complex clip-wrap licenses that would be allowed by UCITA, but support licenses such as the GPL (basically a click-wrap).
Copyright promotes "Science" and patents promote "useful Arts." Seems like Congress has gotten a little carried away with copyright, eh?
I think that this would be protected under the reverse engineering exception to the DMCA. See 17 U.S.C. 1201(f).
In the DeCSS decision just released, the judge noted that the exception didn't apply because the exception applied only to software and there was no evidence that the program was written for te "sole purpose" of achieving interoperability. Since you are working on software and can probably put together some evidence of this (in the DeCSS hearing, they simply failed to send in their affadavits in time!) then you should be okay.
I highly doubt that MP3.com would sue you under these provisions. They have a strong interest in not seeing copyright law strengthened, and it would be their technological measure that you would be circumventing...
Minorities traditionally do not do well on such tests. This new test provides another means of gauging the skills that schools might not be able to measure with a standardized test. Not only does the proposed test deal with engineering skills, but also communications and leadership skills (yes, these DO have value). It is just as arbitrary a choice as the SAT.
Many countries have signed a treaty which gives national status to inventors from other countries who wish to apply for patents. Thus, if you apply for one in your country, it is probably equivalent to applying in the U.S. (provided that you actually do apply within a year).
Furthermore, the Internet is an international beast. If someone infringes a patent from *any* country over the Internet, an infringement award can probably be had...
So, just because the U.S. has the most aggressive patent system doesn't mean that you can do much.
By the way, simply publishing an invention has the same effect as patenting it. The only thing is that a patent is presumed to be valid, so it is a big advantage to have one.
Well, there was a case before where a US Dictrict Court found that a spammer was probably tresspassing after Compuserve told them not to use its mail servers, but they did it anyway. So, in this case, eBay probably told the indexer to stop, but they didn't. Hence, the trespass on eBay's servers... Of course, the Compuserve case was only a holding to extend a preliminary injunction.
Seems kind of silly. Compuserve somehow convinced the Court that the spammer was causing performance problems by using the servers, and the court noted this. So, maybe it might not hold if the truth of the minimal intrusion is made known.
This also has broader implications for the open, shared information qualilities of the web. Hell, in common law trespass, you don't even have to know that you are "tresspassing" to be guilty of such!
It would be nice if technology could exist in a vacuum, but it doesn't. The issues being raised in Seattle are highly relevant to nerds: Technology, trade, the environment.
./ advertiseme.. I mean news items about new gadgets, don't belong. But, I have different ideas about what "matters."
If you ask me, all of the
I think that you are right. A website by itself is not enough. See, e.g., Cybersell v. Cybersell, 130 F.3d 414 (9th Cir. 1997). Several circuits probably agree (you mentioned a 7th circuit case)...
/. with a good understanding of the law!
But, in this case, the company has not only set up a website, but will begin the process of conducting business on the Internet. Numerous courts have found that there is jurisdiction over defendants on the basis of their contacts with the forum state through the Internet. See, e.g., Compuserve v. Patterson, 89 F.3d 1257 (6th Cir. 1996) (Patterson, who had no other contacts with the state, transferred files to Compuserve in Ohio for distribution), Playboy v. AsiaFocus International, 1998 U.S. Dist. LEXIS 10359 (E.D.Va. 1998) (defendant was a foreign company who infringed on Playboy's copyright in the forum state because the website was targeted there).
I think that the moment that the company in this case completes a sale and ships a product into the United States that they will be sued for patent infringement and that there will be jurisdiction. Of course, neither of us can be sure because there hasn't been a case that has dealt with this specific issue. Let's wait and see.
By the way, it's quite fun to run into someone on
True, but it is relatively easy to get specific jurisdiction for a patent infringement claim if the UK company ships its product into the US or interacts with US users via the web. Since the lawsuit would be about the use of the website itself, I doubt that a court would say that that is an insufficient basis for jurisdiction.
Of course, a court will not exercise personal jurisdiction if it would be "unfair," but that is veru hard to show...
I actually did a research project on this very question over the summer at an IP law firm. Your first reaction might be to say "no" because you are not in the US.
But... it is patent infringement to import into the United States a product made with a patented process. Also, an argument could be made that part of the process is actually conducted in the US, when the user (a US customer) orders a CD on the Internet.
My conclusion in the memo I wrote was that there is nothing stopping a US court from finding you guilty for patent infringement except diplomacy and good sense.
So, be careful! Read the patent closely, find prior art, etc...
Some consumer advocates oppose the relaxation of notification and information laws put in place by the states. For example, the bill would eliminate in many cases the requirement that banks notify their customers of agreements via snail mail. Email addresses are not as reliable as the USPS, they argue.
The bill doesn't simply say that electronic signatures are valid. THEY ALWAYS HAVE BEEN!
Congress has specifically decided that interactive computer services like Yahoo are not liable if they undertake efforts to censor "objectionable" material. See 47 U.S.C. 230.
Here is an excerpt:
(c) Protection for ''Good Samaritan'' blocking and screening of
offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be
held liable on account of -
(A) any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user
considers to be obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable, whether or not
such material is constitutionally protected; or
(B) any action taken to enable or make available to
information content providers or others the technical means to
restrict access to material described in paragraph (1).
Section 230 of the Telecommunications Act of 1996 provides protection for "good samaritan" blocking of "objectionable material." If an "interactive computer service," e.g. Yahoo, decides to "restrict access to or availability of" their content, then they "shall not be held liable" nor "treated as the publisher or speaker of any information provided."
In short, Congress has changed the common law, which you have correctly identified.
Okay, I'll take your word for it.
I think that I have confused two concepts:
1. The courts' willingness to enjoin an employee from working for a competitor when the employee breaches the employment contract, and
2. The courts' willingness to enforce con-compete clauses of contracts.
I seem to remember from my contracts course in law school that one of these existed. Or, are both wrong?
Or, in this case, it is NOT legally binding.
You have no right to make a living as you wish. Prostitutes are the perfect example.
In the case of non-compete clauses, courts have generally enforced them. While a court, under the common law, will never force you to do a job (13th Amendment helps), they CAN force you not to work somewhere else if it violates your contract with your former employer. But, it would be great if more courts did side with the little guy like this!
The classical argument for such agreeements is that the employee consented to the clause and therefore knew what he was doing when he signed away his freedom to work at a competitor. These are good for the employer to the extent that they protect trade secrets and hurt the competition. They are good for the employee to the extent that the employee might get a higher salary in return.
On the other hand, this was likely a boiler-plate contract that the employee had no real control over (no sign, no job). Thus, is there really consent? It would amount to near slavery to force the employee to stay on the job or leave the industry. I would agree that such a contract provision is unconscionable, particularly in the Internet industry where time flies.
Microsoft does NOT have to use (tm) in order to keep its trademark. It merely puts the world on notice that they have a presumed federal monopoly on the name (for certain uses).
The only problem here is persuading Coca Cola that cocacola.com should be free for the taking...
.com domains, even if they are international and if you have set aside a .tm.us space. For example, what about a situation where a strictly US company registers a .com that infringes a US trademark? The international argument is sort of moot.
If you are going to enforce trademarks at all, why restrict it to just a slice of cyberspace? The motivations for enforcing trademarks still apply to the
Well, I think that it is a stretch to say that the NSI is not capable of handling trademark disputes. But, you are right, they would probably do a pretty poor job.
I also agree that they do not have legal power to settle the disputes. That doesn't mean, however, that they should not be liable for ignoring Lockheed's complaint and at least attempting to make a decision. They could possibly learn to do trademark decisions (non-binding on the parties of course, but can filter out obvious infringement).
Yes, it is not the registrar's job. The question is: should it be the registrar's job? Your argument is circular...
While I agree with your perspective, I think that there is a good argument for holding NSI responsible.
Whether or not NSI likes it, they have taken up the huge (and lucrative) job of coordinating the registration of most of the domain names on the Internet. Most registration goes through them.
NSI is the party that could most cheaply make a decision about whether a serious trademark violation occurs and solve the problem. If, for example, Lockheed can show NSI that it holds several registered "Skunk Works" trademarks, NSI can "hold" ownership of the domain or block registration until a court decides. NSI claims that the registration process is entirely automated. That is true, but as soon as Lockheed has brought the issue to NSI's attention, NSI can no longer claim that there is nothing that it can do. There is at least some degree of fault here.
The alternative (chosen by the court in this case) is to force Lockheed to go straight to court and let the infringer keep the site in the meantime. Given the judicial backlog that exists right now, it is probable that it would be some time before a court would make a decision. In the end, for an obvious infringement case, the court will have spent many taxpayer dollars to reach a decision that the NSI might have made quickly on its own.
The main problem with this argument is that the NSI would basically become the court and use up just as many judicial resources. But, keep in mind that this would be a very specialized "NSI court" that dealt only with Internet domains and trademarks. Plus, maybe the courts could decide to hold NSI liable only if they completely ignore a trademark holder's plea for help (the current policy). There is no reason that the NSI couldn't act as a filter to solve the "obvious" trademark problems, while the slower and more expensive courts are reserved for the "tough" problems.
It has been a common practice for companies alleging trademark infringement in domain names to also sue NSI. I don't think that NSI has ever been held responsible. /. story from a while back about how some Court was the owner of several offensive domain names. NSI, in order to continue its luck in avoiding liability, routinely gives domain names to the Court as soon as there is a suit regarding the domain. That way, their hands are clean.
This is related to the
Since your transaction with the car rental agency did not all occur on-line, the patent is not infringed. Besides, they can't make money from Amazon for suing against an issued patent. What would the claim be?
1. Have the patent reexamined, in light of printed publiciations (might possibly include web sites) that disclosed the invention one year before the application was filed. This is relatively cheap: $2000 or so. But, it is limited to printed publications one year before the application.
2. File for a ruling in a Court that the patent was obvious, old, already disclosed, some other basis. This is very expensive: tens or hundreds of thousands of dollars and years of litigation.
I was going to make a project of having bad patents reexamined in light of printed publications more than one year old, but I don't know how to raise the $2000 a pop. By the way, Slashdot probably does NOT infringe the patent, because all of the claims are limited to "ordering" and "purchasing." The specification does not seem to use these terms in a way that would include the Slashdot model.