Julie Samuels' Favorite Techdirt Posts Of The Week
from the eliminating-stupid-patents dept
Hello, Techdirt! I'm Julie Samuels, staff attorney at EFF, where I also hold the Mark Cuban Chair to Eliminate Stupid Patents. (Yes, that's my real title. And, yes, it's that awesome.) I'm super excited to be here, talking about my favorite posts of the week (not an easy task—those folks at Techdirt definitely keep themselves busy!). So let's get started.First, for better or worse, an issue close to my heart: the patent troll. This week brought news of Rackspace's suit against notorious patent troll Erich Spangenberg and Parallel Iron. There's so much I can't stand about patent trolls, but so much I love about this post: it really explains the background of this particularly troll-ish character and also highlights Rackspace's actions, which deserve both praise and attention — Rackspace has been a real leader in the fight against patent trolls as of late.
While we're talking patents (which is pretty much all I ever do anyway), we also heard more this week from a particularly gross troll, the one who uses various shell companies to claim that anyone who uses "scan to email" technology over a network infringes its patent, and demands about $1,000 per employee. This is part of a much larger, dangerous trend of end-user suits, where patent owners threaten users who really have little or no reason to even think they were infringing a patent (some other examples include going after podcasters and app developers). These end-user suits really are the worst — whether they're used as little more than an extortion tool to shake down small companies for a few thousand bucks, or pressure points to get at the larger, richer technology providers (think Apple, Google, Cisco) — they're an unacceptable abuse of the system and a tax on innovation.
Speaking of abuses of the system, this week was really something else in the world of copyright trolls. Holy Prenda! It's worth your time to read here, here, here, here, here, here, and here. Maybe make some popcorn.
Another important topic that came up a bunch this week was transparency (or, sadly, lack thereof). Take, for instance, international trade agreements, negotiated in secret and resulting in hamstrung democratic processes all over the world. Glyn Moody had a great post talking about these problems and reminding us that we need watch out for not just the big, multilateral agreements like TPP and TAFTA, but the dangerous bilateral ones that often fly under the radar.
And then there's Hollywood and the traditional content industries, which never cease to amaze. First, they unsuccessfully tried to shut down Aereo, and now they're threatening to pull channels off the air! Because those content companies know exactly what their customers want. Of course they do. Then the news that despite all the complaining otherwise, it actually turns out that the number of people employed in the music and movie business just hit an all-time high. And even Rep. Goodlatte, longtime considered a reliable friend of the content industries, criticized the cozy relationship between the DOJ and Hollywood (someone else who might have something to say about that is Kim Dotcom, who remains at the center of an unraveling spying scandal in New Zealand as he continues to face criminal prosecution here in the United States).
As usual, never a dull moment! Just thankful that we've got Techdirt on the story and reminding us that, as a community, we've still got a lot of work to do to make the world safe for innovation and the people who make cool stuff.
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What about my idea?
What about my idea?
https://www.techdirt.com/articles/20130102/08174721543/patent-troll-shell-companies-shake-down-s mall-businesses-1k-per-employee-using-network-scanner.shtml#c292
Just bring in the scanner manufacturers, big fortune 500s all. After all, we didn't write that scanner software, it was done by those big companies. They provided it to us, right?
If there was some patent infringement, it's their problem. We are all their licensees, right?
Find your natural allies. I doubt these patent trolls really want 5 or 10 multinational companies with lawfirms on retainer answering their troll threat letters. They want easy money.
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Re: What about my idea?
Frankly this patent should have been rejected as an obvious use of existing technology.
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Re: What about my idea?
It's possible that your license agreement with HP includes: (1) a warranty that the licensed software does not infringe third-party IP, in which case you could sue HP for breach of contract, and/or
(2) a promise to indemnify you in the event of litigation, in which case HP would pay the costs of your defense, and/or
(3) a promise to step in with legal representation and defend you in the event of litigation.
Or, your license agreement might include none of those things, and you're on your own! But no matter what HP says, they can't prevent you from being liable for patent infringement. At best, they can cover your costs or promise to handle the defense.
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Number of people employed at McDonald's may be all-time high too.
Anyhoo, this week the most notable FUNNY was Mike yet again attempting to undermine copyright with his review of a book review someone else wrote of a book a third person wrote (his typical third-hand grifting) -- and FLOPPING entirely for his purposes because exposed a key sentence stating that copyright is based on common law, not on statutory (state-granted) monopoly.
The review has this gem: "For decades, pirates had to be prosecuted under common law or statutory bans on unfair competition."
http://www.techdirt.com/articles/20130410/07134322658/new-book-history-music-copyri ght-piracy-shows-how-copyright-tends-to-hold-back-music.shtml
As I've written before and will again, copyright merely recognizes the natural rights of a creator to control copies of a work, and what rights others have in the work are distant secondary. And to merely copy is unfair competition.
The gem concisely states history that Mike wants to ignore: that after entirely new gadgets became commonplace and the related law cases were worked out in courts, then legislatures made statutes based on common law.
Mike doesn't grasp the import of what (little) he reads (not the book, only a review of it!), just assumes that if says "copyright" and "fears" then must support all his piratey notions. But the gem alone sinks his entire fleet of pirate ships to the bottom of his bathtub. -- Don't worry: he'll dip his toys out again and pretend never happened; the piece is part of him attempting to recover from admitting that empirical evidence in the Megaupload shutdown PROVES that file hosts cut actual sales of "Hollywood" content.
Read further for the characteristically shallow response of fanboys to substantive points: some ad hom attack, an AC attempting ad hom with feeble one-liners, attempts to drag me off-topic into flame war, a little gainsaying, but none even attempt to refute the common law basis of copyright.
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where economist Mike brags of hanging out with the really cool kids: lawyers!
10:45:47[l-026-2]
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Re: Number of people employed at McDonald's may be all-time high too.
So what you're saying is that the **AAs have fewer rights to a given work than the actual creator? Well, I guess that is how it works - in theory. In practice, the creator's rights are 'distant secondary' to the rights that the **AAs use to extort those same creators.
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Re: Re: Number of people employed at McDonald's may be all-time high too.
They are merely lobbyist tools to expand copyright and control at the expense of the other parties involved in Copyright Law who are the most ignored stakeholders.
The public.
Copyright has become a bludgeon to stop anything that might alter the normal course of the market having to evolve with the times and with consumer demand.
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Piracy is unstoppable, no government in the world is willing to imprison every pirate, he can actually just ignore the law, is cheaper and a whole lot easier to do.
Look at what happened to the only industry that tried to sue everybody and saw their revenues drop by halp from 30 to 15 billion dollars :)
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Re: Re: Number of people employed at McDonald's may be all-time high too.
The law clearly is in the wrong here.
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Re: Number of people employed at McDonald's may be all-time high too.
I think you may have crossed over into delusional land, Blue.
I asked a specific, pointed question concerning this "common law copyright theory" of yours. You ran away from the discussion:
https://www.techdirt.com/articles/20130410/07134322658/new-book-history-music-copyrig ht-piracy-shows-how-copyright-tends-to-hold-back-music.shtml#c465
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Re: Re: Number of people employed at McDonald's may be all-time high too.
Not surprising when that's all they have to sue people for playing music to horses.
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Re: Number of people employed at McDonald's may be all-time high too.
When you speak of that in regards to people you open yourself for people to speak to you in that very same manner. You reap what you sow.
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Re: Number of people employed at McDonald's may be all-time high too.
Then some people need to understand the difference between statue law and common law. Statue law is what legislatures run through their mill, often in some sort of who got to lobby me last BS whereas the Common Law consists entirely on the outcome of court cases and the precedents set there. I'd sooner trust the vast majority of courts than any collection of politicians to come up with something sane.
It is comforting, in a sad sort of way that some things never change such as the dubious though highly interesting and amusing readings of law be it of patents or copyrights that erupt from OOTB's fertile brain. Not to mention OOTB's almost total lack of knowledge of the movie and music industries which all boils down to the fact that musicians, actors, technicians and so on are almost always part time. Hate to tell you this, OOTB, the Studio system died way back in the 1950s, probably long before you were an undreamed of zygote.
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Re: Number of people employed at McDonald's may be all-time high too.
From this you will understand that 'common law' had nothing to do with the implementation of copyright and more to do with treaties, licensing, and the propping up of Business's that supported the government of the day (sort of exactly like today too).
It's sometimes a dry read (400+ pages) but also quite fascinating at times with the historical viewpoints too.
Have fun and before you spout off any more actually know what you are talking about.
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Re: Re: Number of people employed at McDonald's may be all-time high too.
Oh the irony
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
http://www.openbookpublishers.com/product/26/privilege-and-property--essays-on-the-history-o f-copyright
or this (for full text reader)
http://www.openbookpublishers.com/reader/26
Otherwise you can go directly to the digital archive Primary Sources on Copyright (1450-1900), which the book I linked to above is actually a companion for. Though it's more a legalistic reference its still a handy reference place in its own right especially when searching on specific locations, and case law.
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Re: Re: Number of people employed at McDonald's may be all-time high too.
THus, copyright cannot be a natural right becuase heavy soviet style goverment regulation is the only way to ensure that nobody makes their own copies
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Firstly, you think the bear has a 'right' to that cave ? the bear has that cave because he's the biggest guy around.
what you are saying is "he is a bear, therefore has a right to defend a cave".
Copyright is your natural right that you own and can control what you think of or create or invent yourself.
If I write something down, I created what is written, it is mine and no one else's I have a natural right to what I have created naturally.
more to the point, you DO NOT have the right to claim it for yourself.
I know it's a bit hard for you to understand as I expect few of you have ever written or created anything of value.
But if you were say, Steven King you do create things of value, and you own what you create, you have a right to profit of what you create if it is of value.
More to the point, you probably would not have created it if you were not able to extract the value from it by creating it.
So do you think Steven King would continue to write books if he made no money from any of them ?
If there is no protection of creations, there is no creations, as a general rule. There are exceptions to the rule, but not nearly as many that follow this basic rule.
Bands produce a second CD if their first sold well, if it did not sell well, they don't.
Movies are created with the expectation that they will make money, if there is no expectation of profit, there is no movie.
How many movies that made no money have sequels ?
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If you had made this arguement bofore the free software movement and free culture you'd actually have a leg to stand on
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Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Linux as you should know, and especially the GNU is a COPYRIGHT license, it's enforced by copyright.
When Linux was copied we did not get anything new or different, we got a copy of something that had already been created.
when Stallman copied printer software, he did not create software to drive a printer, he copied something that was already created.
the FOSS movement does not really create anything, they copy an great deal from what others have done and created, but themselves FOSS has not given us anything new, just copies of other things.
Again, there is no real creativity in copying what someone else has done.
Nor should someone who has simply copied something off someone else profit from the work that other person has done, especially if that is the way that person makes a living.
Linux would not exist if Unix did not exist and Unix would not exist if it had not been for the application, efficiency and PROFIT that warranted it's creation.
things are created because (usually) it will result in the creator earning a profit, that is why movies are make and books are written, if that profit was not there, these things would not be created in the first place..
you cant copy what has not been created, so if the author does not write a book (because he cant make money off doing it), the book will not be written. If the book is not written, you have nothing to copy.
Operating systems, were developed to make a profit and made a profit, if that profit was not possible that development would not have occurred, no operating system for open source to copy..
A movie is funded with the concept that if it is good it will make the investors a profit, if that profit is insufficient the funders will not fund it, it will not be made. again, it's hard to copy a movie that is not in existence.
it's very simple, Microsoft products would not be the quality they are if there was no incentive to create something that people want to pay for and buy, to make the company a profit. Therefore they create things that are good to use and makes them a profit.
FOSS have no financial incentive to create anything that people would be willing to pay for, and that is reflected in the 'quality' of FOSS offerings.
The only time FOSS is even partially good, is when it has been put back into the commercial world, where people pay money for functionality, then the quality matches it's worth.
copying is not creating, things are not created if the creator is not rewarded for it.
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(--- scratches head while reading this comment from a really awesome, totally Debian laptop ---)
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Re: Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Second, so much of open source INCLUDING linux is developed for profit motives. the ability to freely copy is not the same thing as non commecial.
Third, linux and many open projects takes many long hours of hard work to code. How is it their thoughts on this never count? apparently their work is unique enough to warrent their own copyright on their code so I figure it sould count the same as other devs
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And finally, all the open source I've used has been more reliable, flexable than any closed solution I could name.
Plus, closed vendors tend to add useless crap you don't need. It's part of why that windows driver download is half a gig when on linux it's a few MB. Thus, I tend to find open source software to be more light on resources, with a few infamous exeptions
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Re: Re: Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
lol me
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Re: Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
It means freedom to create, it means the freedom to reuse bits and pieces or the whole and add to it to conform to your needs, it means I don't need to pay a parasitic entity or person that does no work.
FOSS is not about just copying, is about creation, Apache is FOSS you think the dominant webserver on the market wouldn't exist?
You probably are using FOSS right now, what do you think all those routers use?
The "Pro" line of products of some router vendors is nothing more than DD-WRT which last I checked is a FOSS "product"
Most security apps today are all FOSS and you say they don't create anything.
Also FOSS is not about free as in beer but free as in freedom, there is nothing stopping you from building a business around FOSS as many have done so, Red Hat just earned their first billion dollars.
Arduino is an open hardware initiative that makes millions each and every year, NASA uses it extensively.
Very interesting medical applications are being developed as open source and saving lifes in India and Africa, did you know that the cutting edge of telemedicine is being pioneered in those places? You think they are using proprietary software?
It is very simple without the freedom to tinker there is no product to be created, you kill the seeds from which new ideas are born, you kill creativity itself.
FOSS didn't came about by accident, there was a need for it and that so many people jumped into it just proves that it was a strong need indeed.
I just made four nets for my garden, I could have bought some on the hardware store, instead I made it myself from scratch, not really I bought the twine cordage already made from natural fibers that will dissolve in the garden with time. But if I needed a net for a basketball hoop I could make one too, or the net for the goal post for a soccer game, or I could make my own tennis net if I needed, what right the producer of commercial nets have to stop me from doing that?
What right do a book writer has to come to my place of business and demand more money after I have bought the book legally?
What fraking right do a musician has to come to my place of business and demand money for using music that I bought?
What fraking right do a movie producer has to come to my place of business and demand money for using his, her, it movie?
What fraking right a chair maker has to come to my place of business and demand payment of royalties for the use of chair in my office? Oh wait, chair makers don't have that right, nor do plane makers, nor any other maker are they being robbed?
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Re: Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Actually copying is highly creative, have you ever tried to copy a sofa, a chair or anything else?
Is not that easy you have to develop the methods, you have to acquire the materials and so forth.
To copy anything you have to be skilled and put in a lot of effort into the production of a copy.
And the creator of the original or the one named as the creator should not be able to rip the reward of the efforts of others is just as immoral as not paying people for the work they done it directly.
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Re: Re: Re: Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
IT's as true for microsoft, hollywood and the music industry as it is for open source projects like linux, gnu and google's chrome
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
If I write something down, I created what is written, it is mine and no one else's I have a natural right to what I have created naturally.
Copyright is not a "natural right" at all. Copyright artificially extends the creator's natural right to prevent copying beyond the point when it is shared with another human by restricting everyone else's natural right to copy.
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Wrong, if you write something down and you are able to sell it directly that is your cut, if I come along and use it for my own purposes that work is mine and all the benefits should befall me not you because I did the work for it not you. More to the point stop being a parasite.
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Re: Number of people employed at McDonald's may be all-time high too.
they really HATE it when you talk logic and sense like that.. you confuse the Masnick cult worshippers with comments like that..
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Re: Re: Number of people employed at McDonald's may be all-time high too.
Still writhing from the advent of Fair Use in Australia, I see!
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Re: Re: Number of people employed at McDonald's may be all-time high too.
I hate it when someone tries to pass bullshit off as logic. Let's parse the first part of the sentence you quoted:
The first part of this phrase is at odds with the second part. It makes the incorrect assumption that a creator's "natural rights" extend beyond the point where the creation is shared with another. Anything beyond that point, including controlling copies, is not a "natural right", it's a constructed right.
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
When I write software and distribute copies to others I don't have a natural right to stop them from copying from the instances of the work I gave them(indeed, the very nature of creative works resists any attempt to control such copying), but I do still keep the right to stop you from doing so directly off my hard drive.
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
but in human history mankind has always used methods to keep certain things, writings or inventions or knowledge secret or protected in some way.
you are not masnick, you cannot rewrite history like he does. If there is no patent or copyright protections, people will use other methods to protect their creations, usually secrecy.
In situations where copyright or patents are not respected, (such as military information) secrecy is employed, same applies to commercial information.
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Congress would violate the constitution in granting a copyright or patent that never expires but they could abolish copyright tommorow and it would be 100% legal
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Yes, by using the natural right of "not sharing".
Look, I'm not entirely against society giving additional rights to creators to protect their creations, although I think we have gone too far with such things. But calling copyright a "natural right" is just plain wrong and diverts the conversion away from practicality into emotions.
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Re: Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
Legal for the moment, constitutional only as far as congress agree to allow it, they have no obligation to grant any monopolies in the USA.
Quote:
Yes, and what we learned from those attempts?
That monopolies granted to a few always harm the rest and that is why they end eventually, just like copycrap will end some day.
Quote:
The fool people will try to hide it, the smart people will find a way to integrate the good and the bad to take advantage of whatever environment there is. Have you noticed that "laws" in markets only come after those markets mature, they all start lawless and grow naturally and the law is supposed to follow those contours not to create them.
BTW is that you Masnick, because if Mr. Masnick is the one who likes to rewrite history then so you must be him right?
Quote:
So then employ secrecy, nobody wants to stop you from doing so, is not like people want you to pay royalties on your hard work to people who did first at some point in the last hundred years and claim they own that forever and nobody can do it without paying them.
We are entering an age where cooperation is more important than secrecy, so that will not be a problem, we all want to learn how to do stuff, we don't want to just "buy" crap anymore, I don't want to idolize some "brand" I want to do it myself and you want to stop me? please try Sir, I have my middle finger prepared for that occasion.
Why don't the US sue China for copying their military hardware? or Russia for that matter.
Commercial interests are not the only interests in this world, there are some other interests that will and do overrule any commercial ones.
I am not "buying" music or video so I have an a-hole on my shoulder telling me where, when and on what I should enjoy it, I am not paying royalties to some schmuck elsewhere that believes he is the only man alive capable of thinking.
I just made some nets to use in my garden I could bought them, but I enjoyed actually making those, and I would laugh out loud if anybody came to my door telling me I was a criminal for doing so, why shouldn't I laugh at people that think I can't play a song on my own? or print a book.
I am the one actually doing the work, why should I or anybody give others money? are you crazy? or just so out of touch that you lost the sense of reality?
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Re: Re: Number of people employed at McDonald's may be all-time high too.
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Re: Number of people employed at McDonald's may be all-time high too.
No such natural rights exist, and I challenge you to offer any credible proof that they do. Humans have been freely copying each others creations since we first started scribbling on cave walls.
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Re: Re: Number of people employed at McDonald's may be all-time high too.
clearly you do not.
is it your natural right not to be mugged ?
is it your natural right not to be murdered ?
or to have your car stolen or your wife raped ?
are they natural rights ??
copyright and patents are LEGAL RIGHTS by definition, because they are "bestowed onto a person by a legal system".
just as having your house broken into is a violation of your LEGAL RIGHTS (under a legal system), those LEGAL rights (don't kill, don't steal) are not really contingent upon specific laws or customs or beliefs so they also could fall under natural rights.
copyright and the protection of idea's is also not contingent on specific laws and are in fact 'inalienable' rights, just like robbery, murder, theft, fraud that therefore can also fall under the idea of a natural right, as well as a legal right.
you have a natural right not to be murdered, and not to be stolen from, that also applies to things you create as well as things you just own..
You write a book you have a natural right not to have that stolen from you, and copying something and reducing any profits made from that creation is theft.
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
They are opposites
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Re: Re: Re: Number of people employed at McDonald's may be all-time high too.
clearly you do not."
Your screed has left me thinking the same thing about you.
"is it your natural right not to be mugged ?
is it your natural right not to be murdered ?
or to have your car stolen or your wife raped ?"
Why on earth do copyright maximalists always insist on bringing murder and rape into a discussion about copying, as if they're anywhere close to each other in significance. There is nothing, NOTHING, you can create that is significant enough to compare it's copying to murder and rape. The comparison makes you look like an over-entitled fool.
"copyright and the protection of idea's is also not contingent on specific laws and are in fact 'inalienable' rights..."
This is simply false, and I again ask for any credible source for this claim.
"You write a book you have a natural right not to have that stolen from you..."
Society has long agreed that it is wrong to physically take that book away from you and deprive you of its use, i.e. steal it. Copying is completely different, as is society's attitude to it.
"...and copying something and reducing any profits made from that creation is theft."
That is simply not the definition of theft, not by any dictionary, legal or common-sense meaning of the word. There is no natural or legal right guaranteeing a profit. Profit is something you earn by convincing people to pay more for your product or service than it costs you to provide.
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Re: Number of people employed at McDonald's may be all-time high too.
That's not what the sentence said, because if it did say that, it would be wrong. The very first Supreme Court copyright case said - explicitly - that copyright is not based on common law. (Quote is below).
In fact, what the author was saying is that sound recording "pirates" had to be fought without using copyright law at all, but using statutory "unfair competition" laws that were not like copyright laws. It is the exact opposite of what you claimed.
As I've written before and will again, copyright merely recognizes the natural rights of a creator to control copies of a work, and what rights others have in the work are distant secondary.
And every time you've written that, you've been entirely, 100% wrong. Copyright is not a common-law right; it is not a natural right; it is not designed to reward the fruits of authors' labors; the rights of the author are secondary to the rights of the public.
Congress and the Supreme Court have repeatedly made this very, very clear:
- Wheaton v. Peters
- House Report on the Copyright Act of 1909
- Fox Film Corp. v. Doyal
- U.S. v. Paramount
- Feist v. Rural
- Twentieth Century Music Corp. v. Aiken
- Sony Corp. v. Universal City Studios
Don't you get tired of saying things that you know are wrong?
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Julie S
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and how is that esteemed position working out for you ?? eliminated any stupid patents recently ?? ever ???
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