Sure. Limited monopolies (e.g. limited property rights) are good. I'd only be a maximalist if I insisted on extending property rights as far as I possibly could.
And if you became good friends with Gino instead of trolling his shop, he'd probably sell you the pizza for less $14.99. I get discounts all the time.
Sure -- but governments are more willing to grant monopolies that are "natural" or "feasible" to protect.
In the trade secret case, if I could figure out the secret formula to Coke by simply buying a can and running some tests, then current trade secrets law does not prevent me from making my own competitor to Coke. In fact, there are several such competitors doing such tests everyday. I wouldn't be surprised if someone already figured out the formula, but no one believed him because of some weird branding / psychology issue.
The only way Coke could stop me from using that formula was to patent it first -- but patents expire, so not infinite.
Trade secrets are not property rights. They're just secrets. Privacy law probably provides better analogies than property law.
I believe AC's point is that Gino the pizza man should be able to use his government-granted "monopoly" / property rights to earn a profit in addition to his marginal costs. Likewise, content creators should be allowed to earn a profit on each piece of content they sell in addition to the "zero" marginal cost of it being duplicated.
I don't think Mike Masnick et al. have any issues with anyone charging and earning above marginal cost. I believe the issue is about the extent of the property right needed to make a particular method for earning that profit work.
That is, analogy fails because the property right for pizza is very different from copyright for music.
All property rights are monopolies. I own a pizza-- I have a monopoly on who eats my pizza. It's a state-backed monopoly insofar that the police will arrest anyone trying to eat my pizza. That's fine, but we don't normally think of it as a monopoly. Why? Because it's a very well-defined narrow property right that's easy to enforce.
Now imagine if the pizza owner could say, "I'm not selling you the pizza but only the right to eat the pizza in the store. You can't take it to go, share it with your friends, or try to guess what my secret ingredient is and make your own pizza at home." This is (1) stupid for business reasons but also (2) beginning to look more like a monopoly. Why? Because the property right now extends well beyond this one physical pizza but also to how I'm allowed to use this pizza and future pizzas. It reaches out from the pizza parlor into my own home. This is the monopoly and kind of property right that makes folks nervous.
Not all property rights are equal. Courts frequently abridge property rights all the time for the purposes of social good. For example, you usually can't landlock someone by buying up all the land around them and forbidding them to leave. Courts will usually find some out for the landlocked owner to prevent abuse of property rights (in this case, probably an easement).
In the pizza case, we've decided that Gino's current property right on the pizza ultimately yields a better outcome for all on average, but if he starts abusing that right, then the courts will step in to restrict it.
Yes, trade secret -- which is basically "copyright" by locking the recipe in a vault and letting only people you trust see it. That's not a government-granted monopoly; that's a "monopoly I have because of my vault and a gun I will use to shoot you if you try to force your way in."
No, my position is that there shouldn't be government-mandated benchmarks to begin with.
1) Benchmarks for testing just isn't a good way of looking at software. Testing is a qualitative process. For example, many programmers write their own computer-automated tests. How much testing by a computer is equivalent to one hour of testing by a human? I don't think there's an answer to that.
Or take version issues. Is one hour of testing on version 0.9 equivalent to one hour of testing version 1.0? Well, it depends on the type of software and what those version numbers mean -- and "it depends" isn't a great place to be when you're making standards.
2) There are a number of "best practices" out there that programmers can follow, but the consensus on what they are changes so often that I'd hate to be legally bound to any of them.
---
Anyhow, as the other posts indicate, a much better solution is to simply fix all these issues with EULAs and no return policies. Customer return rates and feedback will do much more to improve software quality than any fixed standard on quality.
I think the problem is partially that people are getting screwed by EULAs they didn't read.
Creative Commons, the GPL, etc. has done a lot to standardize copyright licensing. If I see a little badge saying "Creative Commons Attribution License," I know exactly what that means now and don't have to read the rest of the legalese.
What if someone just standardized a consumer-friendly EULA? I imagine it'd be very tricky given the wide variety of use-cases for software out there, but I'm pretty sure you could create 5 EULA types that would cover 90% of the software market.
As a programmer, I can tell that that's not going to work. Lines of codes is an extremely subjective measure of "likelihood this code contains bugs." Factors such as the programming language such as team dynamics, programming language, and programming style can affect the number of lines of code without having a corresponding effect on code complexity or likelihood of error.
There's also the question of how you count lines of code shared between multiple products (e.g. open-source libraries). That's just a mess you don't want to get into.
Robots are like any other products. Figuring out who to blame isn't a unique problem -- e.g. if grandma overdoses, we could blame the pill manufacturer, the scientist who came up the formula, the retailer, whoever was supposed to put a warning label on it, whoever was supposed to make sure the warning label was legible to old ladies, her grandma, her caretakers, her kids, or her herself.
I am of Chinese descent and have spent a fair amount of time living in Beijing.
Most of the Chinese I've talked to there aren't happy about the censorship either. The only reason there's not a huge fuss over it is that the economy > freedom in a country that was starving a few decades only.
In fact, the censorship issues most likely to result in a shit-storm are probably those involving economic change. Censoring a blog post about Tiananmen Square? Eh. Censor a forum post about a crackdown on labor unions? Or how entire villages are being displaced by industrialization? Or how some rich CEO paid off the police to get out of a hit-and-run? Man, that's going to result in some serious pushback.
Also, the "you're an American and therefore don't understand" argument is an intellectually lazy one to make: (1) It may not always be true; (2) You don't actually explain how "Chinese freedom" is actually different.
Ironically, the actual HTC phone owners are probably worse off now.
See, if I was downloading the widget onto a phone manufactured by an HTC competitor, there's likely already a look-and-feel mismatch between the manufacturer's widgets and the one I downloaded. So long as the replacement is reasonably "pretty", there's no loss.
On the other hand, for an HTC owner, one of the reasons I may have downloaded that widget was because it offered better functionality and integrated well with the other parts of the Sense UI. Now that the replacement looks different, part of its original value to me is lost.
I mean, there are Apple users who insist only on downloading third party software that conforms to Apple's look-and-feel. Imagine how'd pissed they be if Apple started saying that only core OS X apps could use the brushed metal look.
You need to do a little more to make your argument work. What would happen if Motorola used an HTC widget? Since Motorola is a direct HTC competitor, then that would look a little sketchy.
In this case, the developer is not Motorola, but you could potentially download the widget onto a Motorola Droid and make it look all HTC-ish -- thereby nixing some of the advantage the Eris might have had over the Droid.
That said, it requires quite a few jumps. I imagine the number of consumers who say "Oh, I'd get an Eris because it's so pretty, but I can just download the widgets onto a Droid and get a keyboard instead" is fairly small.
I am also very much alarmed how you can copyright or trademark UI elements and "look-and-feel". I mean, imagine if someone had copyrighted the scroll-bar. We'd have like a gajillion variations of the scroll-bar to get around the copyright, most of them would suck (e.g. see that thing on Google Wave), and users would be horribly confused over the design inconsistency.
The defamation claim appears to be based on the premise that the author is insinuating that Demi Moore requested the alteration be done herself (and is therefore a vainglorious diva).
Not sure how you resolve insinuations in court.
Also, since Demi Moore is a public figure, the courts might hold this defamation claim to a higher standard -- e.g. not only does she have to prove the guy was wrong but she has to prove he knowingly made a false statement or did it with "reckless disregard" for the truth.
I wish my law school textbooks were self-updating -- then I'd feel marginally better about shelling out an extra $100 for the newer edition, the only difference being that around 10% of the content has been updated and the page numbers match up to the professor's syllabus.
>> one of his big beefs is he just doesn't like the model Evony came up with for giving something away for free and still giving people a reason to buy.
That said, I can kinda see a rationale for virtual goods. The real scarcity isn't for virtual goods, but for some mix of bragging rights, time, and sadistic entertainment.
AC, I'm not sure if you're making a normative or legal argument here. Legally speaking, maybe there are grounds for libel suit in Australia. I don't know Australian law, but I wouldn't be surprised -- there was that case after all where Yahoo got sued in France over Nazi items being auctioned off in America. As I recall, the case hinged on whether Yahoo could successfully target content based on which country you were from.
Normatively, even if there are legal grounds, it'd still be a bad idea to let this case go through.
First, this probably isn't libel. Most of the blog posts in question appears to be either opinions or true. There are a few claims about malware that might get him into hot water though -- we'll see.
Second, the global nature of the Internet means every that any libel cause will probably involve at least one Australian viewing your content. Granted, that means damages will likely be low, but the mere psychological effect of legal action + legal fees means that even a plaintiff getting only nominal damages can inflict serious harm upon a defendant.
Third, I don't know if Australia has anti-SLAPP laws, but if they don't, I hope they're working on it.
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Re: Re: Re: Re: Pizza Analogy
If you think property rights are a good thing, then why wouldn't more property rights be more good? Why wouldn't you want as many as them of possible?
Bacon is a good thing, but too much bacon clogs your arteries and kills you.
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Re: Re: Pizza Analogy
And if you became good friends with Gino instead of trolling his shop, he'd probably sell you the pizza for less $14.99. I get discounts all the time.
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Re: Re: Re: Re: Re: Re:
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Re: Re: Re: Re: Re: Re:
In the trade secret case, if I could figure out the secret formula to Coke by simply buying a can and running some tests, then current trade secrets law does not prevent me from making my own competitor to Coke. In fact, there are several such competitors doing such tests everyday. I wouldn't be surprised if someone already figured out the formula, but no one believed him because of some weird branding / psychology issue.
The only way Coke could stop me from using that formula was to patent it first -- but patents expire, so not infinite.
Trade secrets are not property rights. They're just secrets. Privacy law probably provides better analogies than property law.
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Pizza Analogy
I don't think Mike Masnick et al. have any issues with anyone charging and earning above marginal cost. I believe the issue is about the extent of the property right needed to make a particular method for earning that profit work.
That is, analogy fails because the property right for pizza is very different from copyright for music.
All property rights are monopolies. I own a pizza-- I have a monopoly on who eats my pizza. It's a state-backed monopoly insofar that the police will arrest anyone trying to eat my pizza. That's fine, but we don't normally think of it as a monopoly. Why? Because it's a very well-defined narrow property right that's easy to enforce.
Now imagine if the pizza owner could say, "I'm not selling you the pizza but only the right to eat the pizza in the store. You can't take it to go, share it with your friends, or try to guess what my secret ingredient is and make your own pizza at home." This is (1) stupid for business reasons but also (2) beginning to look more like a monopoly. Why? Because the property right now extends well beyond this one physical pizza but also to how I'm allowed to use this pizza and future pizzas. It reaches out from the pizza parlor into my own home. This is the monopoly and kind of property right that makes folks nervous.
Not all property rights are equal. Courts frequently abridge property rights all the time for the purposes of social good. For example, you usually can't landlock someone by buying up all the land around them and forbidding them to leave. Courts will usually find some out for the landlocked owner to prevent abuse of property rights (in this case, probably an easement).
In the pizza case, we've decided that Gino's current property right on the pizza ultimately yields a better outcome for all on average, but if he starts abusing that right, then the courts will step in to restrict it.
On the post: Former Musician Now Lawyer Comes To Terms With What's Happening To His Music Online
Re: Re: Re: Re: Re:
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Re:
1) Benchmarks for testing just isn't a good way of looking at software. Testing is a qualitative process. For example, many programmers write their own computer-automated tests. How much testing by a computer is equivalent to one hour of testing by a human? I don't think there's an answer to that.
Or take version issues. Is one hour of testing on version 0.9 equivalent to one hour of testing version 1.0? Well, it depends on the type of software and what those version numbers mean -- and "it depends" isn't a great place to be when you're making standards.
2) There are a number of "best practices" out there that programmers can follow, but the consensus on what they are changes so often that I'd hate to be legally bound to any of them.
---
Anyhow, as the other posts indicate, a much better solution is to simply fix all these issues with EULAs and no return policies. Customer return rates and feedback will do much more to improve software quality than any fixed standard on quality.
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Standardize the EULA
Creative Commons, the GPL, etc. has done a lot to standardize copyright licensing. If I see a little badge saying "Creative Commons Attribution License," I know exactly what that means now and don't have to read the rest of the legalese.
What if someone just standardized a consumer-friendly EULA? I imagine it'd be very tricky given the wide variety of use-cases for software out there, but I'm pretty sure you could create 5 EULA types that would cover 90% of the software market.
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Re:
There's also the question of how you count lines of code shared between multiple products (e.g. open-source libraries). That's just a mess you don't want to get into.
On the post: Do Robots Need A Section 230-Style Safe Harbor?
Products Liability
On the post: Do Robots Need A Section 230-Style Safe Harbor?
Re: Re: I, Robot
On the post: And Here We Go Again: Argentina Extends Copyright
Re: variable length copyright
First 10 years = 0% tax. Next 10 years = 10% tax. And so on -- with it basically becoming public domain after 100 years.
On the post: China Raises The Great Firewall Even Higher, Claims It's To Stop Piracy
Re: Re: Re: Re:
On the post: China Raises The Great Firewall Even Higher, Claims It's To Stop Piracy
Re: Re: Re:
Most of the Chinese I've talked to there aren't happy about the censorship either. The only reason there's not a huge fuss over it is that the economy > freedom in a country that was starving a few decades only.
In fact, the censorship issues most likely to result in a shit-storm are probably those involving economic change. Censoring a blog post about Tiananmen Square? Eh. Censor a forum post about a crackdown on labor unions? Or how entire villages are being displaced by industrialization? Or how some rich CEO paid off the police to get out of a hit-and-run? Man, that's going to result in some serious pushback.
Also, the "you're an American and therefore don't understand" argument is an intellectually lazy one to make: (1) It may not always be true; (2) You don't actually explain how "Chinese freedom" is actually different.
On the post: HTC Sends Cease & Desist To Developer Who Made Similar Android Widgets
Re: Re: They aren't "ditching" the widget.
See, if I was downloading the widget onto a phone manufactured by an HTC competitor, there's likely already a look-and-feel mismatch between the manufacturer's widgets and the one I downloaded. So long as the replacement is reasonably "pretty", there's no loss.
On the other hand, for an HTC owner, one of the reasons I may have downloaded that widget was because it offered better functionality and integrated well with the other parts of the Sense UI. Now that the replacement looks different, part of its original value to me is lost.
I mean, there are Apple users who insist only on downloading third party software that conforms to Apple's look-and-feel. Imagine how'd pissed they be if Apple started saying that only core OS X apps could use the brushed metal look.
On the post: HTC Sends Cease & Desist To Developer Who Made Similar Android Widgets
Re: reverse it
In this case, the developer is not Motorola, but you could potentially download the widget onto a Motorola Droid and make it look all HTC-ish -- thereby nixing some of the advantage the Eris might have had over the Droid.
That said, it requires quite a few jumps. I imagine the number of consumers who say "Oh, I'd get an Eris because it's so pretty, but I can just download the widgets onto a Droid and get a keyboard instead" is fairly small.
I am also very much alarmed how you can copyright or trademark UI elements and "look-and-feel". I mean, imagine if someone had copyrighted the scroll-bar. We'd have like a gajillion variations of the scroll-bar to get around the copyright, most of them would suck (e.g. see that thing on Google Wave), and users would be horribly confused over the design inconsistency.
On the post: Point Out A Potential Photoshopping Of A Demi Moore Picture, And She Has Her Lawyers Send Out The Nastygrams
Defamation Claim
Not sure how you resolve insinuations in court.
Also, since Demi Moore is a public figure, the courts might hold this defamation claim to a higher standard -- e.g. not only does she have to prove the guy was wrong but she has to prove he knowingly made a false statement or did it with "reckless disregard" for the truth.
On the post: David Pogue Weighs In On Ebook DRM: Non-DRM'd Ebook Increased His Sales
On the post: Libel Tourism Down Under: US Company Tries Suing UK Blogger In Australia For Libel
Re: Evony is a Chinese Company
I think Evony does virtual goods -- Mike hasn't been terribly fond of that business model in the past. http://www.techdirt.com/articles/20091108/1122426850.shtml
That said, I can kinda see a rationale for virtual goods. The real scarcity isn't for virtual goods, but for some mix of bragging rights, time, and sadistic entertainment.
On the post: Libel Tourism Down Under: US Company Tries Suing UK Blogger In Australia For Libel
Re: Re: Re: Re: Re: Re: Re:
Normatively, even if there are legal grounds, it'd still be a bad idea to let this case go through.
First, this probably isn't libel. Most of the blog posts in question appears to be either opinions or true. There are a few claims about malware that might get him into hot water though -- we'll see.
Second, the global nature of the Internet means every that any libel cause will probably involve at least one Australian viewing your content. Granted, that means damages will likely be low, but the mere psychological effect of legal action + legal fees means that even a plaintiff getting only nominal damages can inflict serious harm upon a defendant.
Third, I don't know if Australia has anti-SLAPP laws, but if they don't, I hope they're working on it.
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