No one has mentioned yet how f-ing stupid it is that there is a limit on cough syrup. What, are we running out? The reason for the limit, of course, is because someone might do something illegal with large quantities of cough syrup. Or their car. Or a pair of nylon stockings.
It is bad that this crime is apparently strict liability. It is worse that this law criminalizes perfectly legitimate conduct.
Felony murder (the strict-liability crime that nabs the arsonist) at least requires an underlying felony. And drunk drivers are considered reckless, making the murder of the family of four a vehicular manslaughter charge. Those require at least _some_ culpable mental state.
Most criminal laws _do_ require some sort of mental state, although rarely intent to commit a crime. Typically, the mental state required is the intent to commit the wrongful act. That is probably the right requirement: if you intend to kill someone, it should be irrelevant whether you know or care that killing someone is against the law. You should still go to pokey.
There are two problems. First, some of the biggest crimes do not require intent at all, or even _any_ culpable mental state. They are "strict liability": if you do the bad thing, even unintentionally, you go to pokey. Second, the laws are stupid, so it is nearly impossible to kinow in advance of your arrest whether what you are doing is legal. For instance, playing your car stereo too loud on a public street is probably a felony. Wha?!
How did he get an injunction? I like that it is being served via Twitter, and agree with the concept that the court should not be uptight about methods of service, but this is an injunction that should never have been granted.
He is arguing breach of copyright. In 140 characters? What the hell did he copyright, his name? At most this is a trademark infringement, and you don't need an injunction to cure that (instead, you just keep racking up damages).
No. A _prime_ example of obviousness would be the peanut butter and jelly sandwich. Welch's holds that patent, I think. But this is certainly obvious. It is also not novel: people have been trading content for eyes since the invention of fire.
It has another, more fundamental problem. It is not a patentable "business method". In the US, those are required to have a tangible result. Your method of depositing chrome on plastic (by first electroplating with nickel) is patentable - the result of the method is a chrome-plated piece of plastic. Your method of adding a column of numbers by starting in the middle and going out to the sides probably isn't.
They get the money for the application. They can deny it at the end and still get the money.
They are overworked, underpaid, and headed for a revolving door into a private patent practice (in which they will represent stupid patent applications before the PTO). There are few PTO "lifers".
The real problem is not the motivation or even the workload of the PTO. It is its existence. Patents are silly. Congress has experimented with them for long enough - it should feel free to abolish them now that they no longer do any real work.
Taylor's argument, that he meant this "cost of doing business" is imposed by the corporate ethics of a good corporate citizen, makes little sense. The quoted statement smells like an accusation of vicarious liability, which is what Mike identified.
The fact is, there are competing rights at issue in this debate, and BT has chosen to pay the (lowest) cost to support one of those rights (the right of its customers to be free of intrusion). If Taylor _really_ meant what he suggests, that BT made the wrong moral choice, then his statement was vacuous. It was merely a statement of his ill-informed opinion.
They are not on the home row. If you touch type by keeping your fingers anchored on the home row, each of those doublets requires two full motions (so you are very unlikely to hit two of them before the first typearm falls back into its home position). This is even more true if you, like me, type 'e' and 'r' with the same finger (the middle).
Worth noting that the IP protection would have to be much, much stronger than even the draconian malarky we have today. The AK-47 is apparently 62-years-old. The AK-74 is apparently 35-years-old. Whatever innovation these weapons had would be in the public domain by now.
Moreover, if you strengthen the IP, say by increasing its term to 90 years like some copyrights, you still wouldn't help matters. According to Mike, the technology was broadly licensed. Strong IP _was_ used, it was simply used to spread risk rather than to obtain and maintain a monopoly.
More importantly, at least in the US the goal of IP is _not_ to increase profits of early distributors, but to secure progress. The success of the AK-47 is probably a very good lesson that IP monopolies are counterproductive to that end. Compare the AK-47's market success with other weapons', and the unsurprising revelation is that IP monopolies interfere with the dissemination of ideas, and the development of new ones.
Okay, just went and read the article. It sounds like _all_ that has happened so far is a C&D letter - no suit has been filed.
And the alleged infringement is apparently _not_ over "North Face" versus "South Butt," but over the red & white dome design. Frankly, North Face appears to my eye to be absolutely correct that the logos are confusingly similar.
There is an interesting legal point, here, about the trademark standard. Ostensibly, and jurisprudentially, it is "likelihood of consumer confusion." Because of the context in which these marks are used, there is no likelihood of consumer confusion. But what actually gets applied in the courts is whether the competing marks are "confusingly similar." These marks are probably confusingly similar. Because of the way these cases posture (often, competing motions for summary judgment,) the trademark holder tends to get the benefit of whichever standard best makes his/her/its case.
The problem is not North Face. They are doing what the law permits and may even require them to do. The problem is that the law is stupid.
It would be entertaining to know whether there were any settlement proposals prior to filing suit. North Face wants to protect its marks, because it will lose protection if it does not diligently protect. TM holders who don't actually care about a particular use often send C&Ds and then offer to license the mark for free or cheap or a small royalty. That way, the use is authorized and they are not failing to enforce their mark. If the offer goes unanswered, they are now in the uncomfortable position of having to sue over something they don't really care about.
I have absolutely no reason to believe that is what is happening here, and no reason to think it is not.
On straight TM grounds, I agree that the suit makes no sense. There is a concept of "dilution by tarnishment," however, in the FTDA. The concept is, if someone uses your mark in such a way as to cause _your mark_ to lose value (not the association between source or origin and product that your mark is supposed to create,) that use is actionable. North Face may be attempting a novel extension to tarnishment by asserting that parodic uses can also tarnish the underlying mark.
At about this point, trademark starts to run irretrievably afoul of the First Amendment.
State-specific. Some have fee-shifting rules that make stupid plaintiffs pay the attorney fees of successful defendants. In federal court, it depends on the substantive law of the case. I have not read this complaint, so no idea if vexatious conduct will matter.
In some states, including mine, a person can be declared a vexatious litigant and thereafter requires court approval before he can file any action. Only one person has ever been so declared, and it was because he was suing the judges themselves.
Without social intervention, there is no "property" in the sense you are using the word, and certainly no "ownership." These are social concepts, legal concepts, not natural ones. They refer to a set of entitlements and privileges, chief among them the privilege to exclude others.
Until fairly recently, there was no "intellectual property." Patents were pure economic monopolies, not over defined technology but over regions and people. Eventually, society recognized that those sorts of patents were not socially beneficial, and abolished (and even criminalized) them. We have not yet done that with "intellectual property," the newest breed of government-permitted monopolies. We should. IP is not obsolete because of the advent of the internet, IP was dangerous and ill-advised at its inception.
Patent licensing fees had little to do with it. Market domination certainly did. The dominant consortium would be able to control access to the technology, and thereby get everyone in the industry to agree to licensing terms. The fee wasn't important, the idiotic copyright protection scheme was. Tough to see how this benefitted the common man.
This is an odd perspective, to say the least. Invention and innovation are good, but they are far from the only good things. If the existing technology works and is selling, and new technology will take 20 years to work out bugs, then the new technology is bad. It is worse than what is there. Why is society better off for having it invented?
But that isn't what you are actually talking about at all. You are talking about situations in which the existing technology does _not_ work - it is obviously suboptimal, and improvements and refinements must be made. And in the course of improving and refining, it may be discovered that the base design also needs to be changed.
What patents actually do is restrict the ability to _find out_ whether the base design is good for all purposes or not. We cannot refine and advance, so we try out a totally different base design. Perhaps having 10 virtually untested base designs, each with 2 or 3 refinements, is better than having only 2 or 3 base designs, each with 20 or 30 refinements. Perhaps not. It is going to be a case-by-case analysis, and it cannot be performed in advance.
Incidentally, this topic is immune to proof, because there is no appropriate sample. That is, as a theoretical matter it is impossible to construct a representative sample. In part, this is because the question itself is incoherent. Patents have no normative value outside of an externally-imposed moral system, so it does not make any sense to ask whether patents are "good" or "bad" (let alone to try to prove it). What is clear is that patents do not lead to innovation, they constrain it. Some people will respond to those constraints with redoubled effort, most will not.
To the degree I understand your point (and I admit that I do not follow all of it very well,) it seems as if you are saying that we need copyright because most new music being produced today is drek. Put differently, we should be supporting artist development because artists are not developing well right now.
Couple kinks in that argument. First, copyright exists, so if we're getting drek now it cannot be because of a failure to pass sufficiently draconian copyright laws. Indeed, much of the drek is produced entirely by the industries that copyright protects. Or do you argue that Britney Spears is the highest and best use of our collective listening time? Second, copyright is provable a craptastic way to support artistic development. NEA/NIH grants are probably better. Parties in my backyard are better yet. As your music teacher told you before rapping your knuckles with her baton, it is practice that improves musicians.
I strongly support improving the quality of music education in schools. I would love to see an innovative way to pay artists for their artistry and editors for their discrimination. But copyright is not for or about them - it is about labels, who are merely distributors of music. Music distribution no longer requires labels. They are unnecessary middlemen. They should be relieved of their cherished position. Elimination of ill-conceived copyright would do that work.
On the post: Shouldn't Intent Be A Part Of Criminal Law?
It is bad that this crime is apparently strict liability. It is worse that this law criminalizes perfectly legitimate conduct.
On the post: Shouldn't Intent Be A Part Of Criminal Law?
Re: Not always necessary
On the post: Shouldn't Intent Be A Part Of Criminal Law?
There are two problems. First, some of the biggest crimes do not require intent at all, or even _any_ culpable mental state. They are "strict liability": if you do the bad thing, even unintentionally, you go to pokey. Second, the laws are stupid, so it is nearly impossible to kinow in advance of your arrest whether what you are doing is legal. For instance, playing your car stereo too loud on a public street is probably a felony. Wha?!
On the post: UK High Court Allows Injunction To Be Delivered Via Twitter
He is arguing breach of copyright. In 140 characters? What the hell did he copyright, his name? At most this is a trademark infringement, and you don't need an injunction to cure that (instead, you just keep racking up damages).
On the post: That Whole Watch An Ad To Get Content Thing? Patented... And The Patent Holder Has Been Suing
Re:
It has another, more fundamental problem. It is not a patentable "business method". In the US, those are required to have a tangible result. Your method of depositing chrome on plastic (by first electroplating with nickel) is patentable - the result of the method is a chrome-plated piece of plastic. Your method of adding a column of numbers by starting in the middle and going out to the sides probably isn't.
On the post: That Whole Watch An Ad To Get Content Thing? Patented... And The Patent Holder Has Been Suing
Re: Sue the USPTO
They are overworked, underpaid, and headed for a revolving door into a private patent practice (in which they will represent stupid patent applications before the PTO). There are few PTO "lifers".
The real problem is not the motivation or even the workload of the PTO. It is its existence. Patents are silly. Congress has experimented with them for long enough - it should feel free to abolish them now that they no longer do any real work.
On the post: BPI Unhappy With Techdirt, Seeks To Correct The Record... But Still Gets It Wrong
Re: Re: Re: This says it all...
The fact is, there are competing rights at issue in this debate, and BT has chosen to pay the (lowest) cost to support one of those rights (the right of its customers to be free of intrusion). If Taylor _really_ meant what he suggests, that BT made the wrong moral choice, then his statement was vacuous. It was merely a statement of his ill-informed opinion.
On the post: Shooting Down The Claim That The AK-47 Needed Intellectual Property Protection
Re:
On the post: Shooting Down The Claim That The AK-47 Needed Intellectual Property Protection
Re: Re: Re: Side note on Dvorak
On the post: Shooting Down The Claim That The AK-47 Needed Intellectual Property Protection
Moreover, if you strengthen the IP, say by increasing its term to 90 years like some copyrights, you still wouldn't help matters. According to Mike, the technology was broadly licensed. Strong IP _was_ used, it was simply used to spread risk rather than to obtain and maintain a monopoly.
More importantly, at least in the US the goal of IP is _not_ to increase profits of early distributors, but to secure progress. The success of the AK-47 is probably a very good lesson that IP monopolies are counterproductive to that end. Compare the AK-47's market success with other weapons', and the unsurprising revelation is that IP monopolies interfere with the dissemination of ideas, and the development of new ones.
On the post: Congress Not Yet Willing To Outlaw Being A Jerk Online
On the post: North Face Goes After South Butt Over Trademark Infringement
Re:
And the alleged infringement is apparently _not_ over "North Face" versus "South Butt," but over the red & white dome design. Frankly, North Face appears to my eye to be absolutely correct that the logos are confusingly similar.
There is an interesting legal point, here, about the trademark standard. Ostensibly, and jurisprudentially, it is "likelihood of consumer confusion." Because of the context in which these marks are used, there is no likelihood of consumer confusion. But what actually gets applied in the courts is whether the competing marks are "confusingly similar." These marks are probably confusingly similar. Because of the way these cases posture (often, competing motions for summary judgment,) the trademark holder tends to get the benefit of whichever standard best makes his/her/its case.
The problem is not North Face. They are doing what the law permits and may even require them to do. The problem is that the law is stupid.
On the post: North Face Goes After South Butt Over Trademark Infringement
Re: Okay, I'll try to bring it back
It would be entertaining to know whether there were any settlement proposals prior to filing suit. North Face wants to protect its marks, because it will lose protection if it does not diligently protect. TM holders who don't actually care about a particular use often send C&Ds and then offer to license the mark for free or cheap or a small royalty. That way, the use is authorized and they are not failing to enforce their mark. If the offer goes unanswered, they are now in the uncomfortable position of having to sue over something they don't really care about.
I have absolutely no reason to believe that is what is happening here, and no reason to think it is not.
On the post: North Face Goes After South Butt Over Trademark Infringement
At about this point, trademark starts to run irretrievably afoul of the First Amendment.
On the post: Even After Being Disbarred, Jack Thompson Can File Misguided Mistargeted Lawsuits
Re: Declare Him A �Vexatious Litigant�
In some states, including mine, a person can be declared a vexatious litigant and thereafter requires court approval before he can file any action. Only one person has ever been so declared, and it was because he was suing the judges themselves.
On the post: What Kind Of Innovation Do Patents Encourage?
Re:
Until fairly recently, there was no "intellectual property." Patents were pure economic monopolies, not over defined technology but over regions and people. Eventually, society recognized that those sorts of patents were not socially beneficial, and abolished (and even criminalized) them. We have not yet done that with "intellectual property," the newest breed of government-permitted monopolies. We should. IP is not obsolete because of the advent of the internet, IP was dangerous and ill-advised at its inception.
On the post: What Kind Of Innovation Do Patents Encourage?
Re:
On the post: What Kind Of Innovation Do Patents Encourage?
Re: Re: Re:
On the post: What Kind Of Innovation Do Patents Encourage?
Re: Re: Re: Re:
But that isn't what you are actually talking about at all. You are talking about situations in which the existing technology does _not_ work - it is obviously suboptimal, and improvements and refinements must be made. And in the course of improving and refining, it may be discovered that the base design also needs to be changed.
What patents actually do is restrict the ability to _find out_ whether the base design is good for all purposes or not. We cannot refine and advance, so we try out a totally different base design. Perhaps having 10 virtually untested base designs, each with 2 or 3 refinements, is better than having only 2 or 3 base designs, each with 20 or 30 refinements. Perhaps not. It is going to be a case-by-case analysis, and it cannot be performed in advance.
Incidentally, this topic is immune to proof, because there is no appropriate sample. That is, as a theoretical matter it is impossible to construct a representative sample. In part, this is because the question itself is incoherent. Patents have no normative value outside of an externally-imposed moral system, so it does not make any sense to ask whether patents are "good" or "bad" (let alone to try to prove it). What is clear is that patents do not lead to innovation, they constrain it. Some people will respond to those constraints with redoubled effort, most will not.
On the post: Some Questions For Lily Allen
Re: Fed Up
Couple kinks in that argument. First, copyright exists, so if we're getting drek now it cannot be because of a failure to pass sufficiently draconian copyright laws. Indeed, much of the drek is produced entirely by the industries that copyright protects. Or do you argue that Britney Spears is the highest and best use of our collective listening time? Second, copyright is provable a craptastic way to support artistic development. NEA/NIH grants are probably better. Parties in my backyard are better yet. As your music teacher told you before rapping your knuckles with her baton, it is practice that improves musicians.
I strongly support improving the quality of music education in schools. I would love to see an innovative way to pay artists for their artistry and editors for their discrimination. But copyright is not for or about them - it is about labels, who are merely distributors of music. Music distribution no longer requires labels. They are unnecessary middlemen. They should be relieved of their cherished position. Elimination of ill-conceived copyright would do that work.
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