There's actually an interesting twist here I think.
The Quanta case only says that if you license someone to SELL a product that embodies a patent, then any downstream users of that product don't need a license as well.
The catch is the "sell". If I license the technology, but you choose to sublicense or relicense the technology rather than sell a product, then the patent hasn't been exhausted. This is similar to the first sale doctrine in copyright law, and it's why software companies always insist on "licensing" technology to you rather than just sell it.
So in order for a patent exhaustion claim to move forward, Apple is saying that it sold, not licensed, its SDK to its developers.
Why is that interesting? Well, it basically means developers can now IGNORE all of Apple's licensing terms without violating copyright law. They're the owners of the software, not licensees! They can resell the software, develop apps for jailbroken iPhones, etc.
Note that Apple can still bring a breach of contract claim against the developer, because this is separate from the copyright issue. But Apple cannot bring a breach of contract against any random person who manages to get a hold of an SDK (e.g. off eBay) but did not agree to anything with Apple. In the past, Apple might have brought a copyright claim, but in conceding that they've actually sold something, they can't do so anymore.
Thought: Maybe schools don't like kids being able to install games on their calculators? Not cheating per se, but I could see an administrator being annoyed with that sort of thing.
Of course, this is a little silly now that your phone is probably a better gaming platform than the calculator, but I do remember at one time that mobile phones were banned from schools too.
Not that I ever did this, but if it's something like storing formulas on your calculator that you were supposed to "memorize", I remember it being pretty easy to store such stuff without ever needing to install or jailbreak anything.
Well, I'm not a lawyer, but I am a law student. The FTCA would a silly way to bring a claim. But Anonymous's original point (before he got sidetracked on this FTCA nonsense) was somewhat relevant -- you can bring a First Amendment claim at any time by suing the the head of the relevant agency. In this case, it's probably DHS. No Tort Claims or special courts. Just say "DHS broke the First Amendment" and "I want an injunction making them stop."
The way you bring a First Amendment suit is to just bring it. You don't need to rely on the FTCA or the Court of Federal Claims. You can bring a First Amendment suit in any court.
I mostly agree, but you wouldn't file 1983. That's only for actions by individual states. Here, you would just straight up sue the US Attorney General, or Secretary of Homeland Security.
No, I'm saying the sites should be the PLAINTIFFS. The government is the DEFENDANT here.
If the government treats you like a defendant without actually bringing charges, you can sue the government to make them stop. If they're not complying with Rule G, then you can sue them to make them comply.
"But we dont know that is the right people and we dont know their reasoning."
I dunno -- seems clear to me. Don't these domains now say, "This has been seized by DHS for infringement" or some sort? So ... you sue the head of the DHS. That is the right person. Federal law lets you sue the head of the agency even if it's one of their underlings, so as everyone is acting in their official capacity.
No, you don't need to rely on the Tort Claims Act to sue for a constitutional violation. And if you're suing the heads of DOJ, DHS, and/or ICE, you could bring the suit in the U.S. District Court for D.C. I think.
You don't have to wait for the gov't to file charges. This is similar to what happened to the Guantanamo detainees actually -- in that a lot of them are basically being held without having formal charges pressed against them.
But the Guantanamo detainees WERE able to bring suit to challenge that detention, and in Boumediene v. Bush, the Supreme Court said that the government had to provide some semblance of due process.
Granted, the process for the Guantanamo detainees is moving along super slow, but that's largely because (1) it's difficult for lawyers to get access to the detainees, and (2) courts are super cautious on issues of national security.
But that's not the case here. It's clear which websites were blocked. Their owners could probably contact a lawyer in the U.S. And although the domain blocks are being enacted by DHS, I seriously doubt any court will buy that this is a "national security" concern that it shouldn't touch.
I'm kind of with Anonymous on this one -- you don't need the DOJ to respond to anything to file a suit. Have these sites retained a lawyer in the U.S. yet?
There's a clear claim -- violation of the Constitution. And you can always sue the head of ICE or the DOJ for injunctive relief (stop blocking my site).
If the site is actually legit and hasn't filed suit, then the only reason I can think of is that lawsuits are expensive, and that they'd prefer to resolve this directly through administrative action on DOJ's or DHS's behalf.
No, lawsuits don't work that way. The claim is that they violated the U.S. Constitution. You don't need to wait for them to offer a justification for it. And really, the point of the suit is to make the government justify its actions.
See my above post -- but you can sue the AG and head of ICE in their official capacities.
Actually, you'd sue Eric Holder and John Morton, in their official capacities as the U.S. Attorney General and the head of ICE. When it's unclear who's in charge, you can go straight to the top.
You would claim violations of the 1st, 4th, and 5th Amendments (free speech, search and seizure, and due process). And you'd ask for injunctive relief -- e.g. stop blocking my site. Assuming there's no statutory remedy, you might also ask for damages for the violation of the 4th Amendment, relying on a "Bivens" claim.
Eh, judges tend to be more concerned about being overturned on appeal than pissing off the mayor. The judge has a life-time appointed position. There's nothing the mayor can do.
I'd be willing to pay for something like a chance to chat with the author (that'd probably be a premium service). I'd be willing to pay for that with or without an electronic version of the book, but an e-textbook could definitely make it easier to sign up and pay.
This makes total sense for textbooks! As a student, I'd be wary of buying a virtual package of information in the public domain that I don't have the legal right to resell.
But I might pay for a social network that helped me better understand the material.
I'd pay for access to a help forum where I could ask questions about particularly confusing parts of the book. I might ask questions there because my own professor isn't all that great and maybe other users might be feeling helpful. But perhaps the author of the book would visit the forum too, because by analyzing the questions people ask, the author can gain insight into how to improve the book.
In addition to a traditional help forum, an interactive textbook might also permit interactive margin notes. When I see an interesting passage, I can double-click to highlight and make notes. I might also choose to make those notes public to others. This way, other students reading the same book have the option of seeing what parts of the books others found interesting. This would be useful if I'm pressed for time and didn't have time to read all of the assigned reading.
Another example: Suppose that at the end of every chapter, there's a short quiz about the topic that chapter covered. Suppose also that I've completed that quiz, that I have an exam coming up, and I really need more practice problems.
The interactive version of the textbook would not only let me take the quiz; it also let other users submit their practice problems and answers. So when I'm done working on the "official" practice problems, I have a whole slew of user-generated problems to work on if I need more practice.
Now usually students don't pick books -- teachers do, but an interactive textbook could have several features that cater to those teachers.
For instance, suppose in the above pop-quiz example, a teacher could see which were the most common wrong answers. Add in a way of showing only the results for that teacher's students, and a proactive teacher could adjust his lesson plan to compensate for common misunderstandings in his class.
Some teachers also like to reorder the way the material in the textbook is taught. Nor do all teachers necessarily teach all parts of the book. With an physical book, this can be quite annoying: Today, we're reading pages 234-255; tomorrow, read 23-34; and after that, read 912-915. An electronic copy could fix this by providing an easy user-interface that let the teacher reorder, skip, and otherwise modify the overall structure of the text for that teacher's students.
Moreover, teachers could share their lesson plans and orderings using the textbook's social network (assuming the schools themselves don't throw a hissy-fit). They could also suggest supplements and other ways of presenting the material to their students.
I've been waiting for stuff like this for a while. Here's hoping it happens soon.
On the post: Apple Says Lodsys Has No Case Against Developers; Will Defend Them Against Suits
Patent Exhaustion and First Sale
The Quanta case only says that if you license someone to SELL a product that embodies a patent, then any downstream users of that product don't need a license as well.
The catch is the "sell". If I license the technology, but you choose to sublicense or relicense the technology rather than sell a product, then the patent hasn't been exhausted. This is similar to the first sale doctrine in copyright law, and it's why software companies always insist on "licensing" technology to you rather than just sell it.
So in order for a patent exhaustion claim to move forward, Apple is saying that it sold, not licensed, its SDK to its developers.
Why is that interesting? Well, it basically means developers can now IGNORE all of Apple's licensing terms without violating copyright law. They're the owners of the software, not licensees! They can resell the software, develop apps for jailbroken iPhones, etc.
Note that Apple can still bring a breach of contract claim against the developer, because this is separate from the copyright issue. But Apple cannot bring a breach of contract against any random person who manages to get a hold of an SDK (e.g. off eBay) but did not agree to anything with Apple. In the past, Apple might have brought a copyright claim, but in conceding that they've actually sold something, they can't do so anymore.
On the post: Insanity Rules: UK Judge Says Mass Revealing Of Ryan Giggs Name Means Injunction Is Even More Necessary
Re:
"You can't say that!"
"Who are you?"
"I'M THE GODDAMN BATMAN."
On the post: Feds Seize More Poker Sites
Re:
On the post: Texas Instruments Learns Nothing, Goes After Hobbyists Again
Re:
Of course, this is a little silly now that your phone is probably a better gaming platform than the calculator, but I do remember at one time that mobile phones were banned from schools too.
On the post: Texas Instruments Learns Nothing, Goes After Hobbyists Again
Re:
Not that I ever did this, but if it's something like storing formulas on your calculator that you were supposed to "memorize", I remember it being pretty easy to store such stuff without ever needing to install or jailbreak anything.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re: Re: Re: Re:
If the government treats you like a defendant without actually bringing charges, you can sue the government to make them stop. If they're not complying with Rule G, then you can sue them to make them comply.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re:
I dunno -- seems clear to me. Don't these domains now say, "This has been seized by DHS for infringement" or some sort? So ... you sue the head of the DHS. That is the right person. Federal law lets you sue the head of the agency even if it's one of their underlings, so as everyone is acting in their official capacity.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re:
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re:
But the Guantanamo detainees WERE able to bring suit to challenge that detention, and in Boumediene v. Bush, the Supreme Court said that the government had to provide some semblance of due process.
Granted, the process for the Guantanamo detainees is moving along super slow, but that's largely because (1) it's difficult for lawyers to get access to the detainees, and (2) courts are super cautious on issues of national security.
But that's not the case here. It's clear which websites were blocked. Their owners could probably contact a lawyer in the U.S. And although the domain blocks are being enacted by DHS, I seriously doubt any court will buy that this is a "national security" concern that it shouldn't touch.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re:
There's a clear claim -- violation of the Constitution. And you can always sue the head of ICE or the DOJ for injunctive relief (stop blocking my site).
If the site is actually legit and hasn't filed suit, then the only reason I can think of is that lawsuits are expensive, and that they'd prefer to resolve this directly through administrative action on DOJ's or DHS's behalf.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re:
See my above post -- but you can sue the AG and head of ICE in their official capacities.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
Re: Re: Re: Re:
You would claim violations of the 1st, 4th, and 5th Amendments (free speech, search and seizure, and due process). And you'd ask for injunctive relief -- e.g. stop blocking my site. Assuming there's no statutory remedy, you might also ask for damages for the violation of the 4th Amendment, relying on a "Bivens" claim.
On the post: Philly Police Harass, Threaten To Shoot Man Legally Carrying Gun; Then Charge Him With Disorderly Conduct For Recording Them
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On the post: Ross Pruden's Favorite Techdirt Posts of the Week
Masnick's a lawyer?
I don't think Mike's an actual lawyer -- although I think he's read enough case law that he could pass the bar if he wanted to.
On the post: What If Every eBook Was Its Own Social Network?
Re: Textbooks!
User interface could use some work, but I like the direction.
On the post: What If Every eBook Was Its Own Social Network?
Re: I see it differently
On the post: What If Every eBook Was Its Own Social Network?
Textbooks!
But I might pay for a social network that helped me better understand the material.
I'd pay for access to a help forum where I could ask questions about particularly confusing parts of the book. I might ask questions there because my own professor isn't all that great and maybe other users might be feeling helpful. But perhaps the author of the book would visit the forum too, because by analyzing the questions people ask, the author can gain insight into how to improve the book.
In addition to a traditional help forum, an interactive textbook might also permit interactive margin notes. When I see an interesting passage, I can double-click to highlight and make notes. I might also choose to make those notes public to others. This way, other students reading the same book have the option of seeing what parts of the books others found interesting. This would be useful if I'm pressed for time and didn't have time to read all of the assigned reading.
Another example: Suppose that at the end of every chapter, there's a short quiz about the topic that chapter covered. Suppose also that I've completed that quiz, that I have an exam coming up, and I really need more practice problems.
The interactive version of the textbook would not only let me take the quiz; it also let other users submit their practice problems and answers. So when I'm done working on the "official" practice problems, I have a whole slew of user-generated problems to work on if I need more practice.
Now usually students don't pick books -- teachers do, but an interactive textbook could have several features that cater to those teachers.
For instance, suppose in the above pop-quiz example, a teacher could see which were the most common wrong answers. Add in a way of showing only the results for that teacher's students, and a proactive teacher could adjust his lesson plan to compensate for common misunderstandings in his class.
Some teachers also like to reorder the way the material in the textbook is taught. Nor do all teachers necessarily teach all parts of the book. With an physical book, this can be quite annoying: Today, we're reading pages 234-255; tomorrow, read 23-34; and after that, read 912-915. An electronic copy could fix this by providing an easy user-interface that let the teacher reorder, skip, and otherwise modify the overall structure of the text for that teacher's students.
Moreover, teachers could share their lesson plans and orderings using the textbook's social network (assuming the schools themselves don't throw a hissy-fit). They could also suggest supplements and other ways of presenting the material to their students.
I've been waiting for stuff like this for a while. Here's hoping it happens soon.
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