Is that like when you were challenged and disappeared for months? Those were good times.
I disappeared rather than discuss some issue straightforwardly? I don't remember it that way. If there's some issue you'd like me to discuss directly and honestly, I'm right here and ready to go. I love a good challenge!
And that, right there, is one of the key problems with the patent system. You don't have to prove your patent is valid. It's only when you sue someone, then they have to prove, at their cost, that your patent is invalid. That's backwards.
Doesn't the would-be patentee prove the patent is valid during prosecution?
The picture Mike displayed is substantially similar. To an ordinary observer they are both toothpicks with grooves on the end and to an expert in the arts they are still both toothpicks with grooves on the end.
Why do you think they are substantially different?
The most obvious difference is that the patented toothpick merely has two stripes on it while the ones in the picture have three grooves. Stripes and grooves aren't the same thing. I appreciate that you dug up the "ordinary observer" test for substantial similarity. Honestly, I'd have to read several cases applying that standard before I could form an educated opinion about how that applies here. But my point isn't that Mike's reached the wrong conclusion. It's that he didn't do the work necessary to reach any conclusion at all.
You make fair points, and it is disappointing to find even non-argumentative comments marked as having been reported by either readers on this site or by its principals.
Thanks. Unfortunately, it's the common reaction here. Dare to challenge Oz the Great and Powerful, and the minions freak out.
It is correct to say that the author of this article has stated a conclusion, but without adequate substantiation.
That was my point as well. I don't care if he wants to bash on a patent because he thinks it's invalid. It'd just be nice if he actually backed it up with something that resembles legal analysis.
"Exclusive ownership" to all things related to the recordings with "no limitations" would include a lot of things. The right to resell, the right to listen to the recording, etc.. Imagine people getting sued for listening to records they thought they owned but hadn't obtained a separate "listening license" for.
Good point. I'm sure there are implied limitations under the common law such that the rights are exhausted in some ways. But, here, I don't think there's any implied limitation on the public performance right. Mike claims there's a "consensus," but then he can't point to a single case interpreting this statute in the way that reflects this supposed "consensus."
It wasn't mindless bashing, he put lots of thought into bashing IP in this article.
As far as I can tell, he puts very little thought into his IP-bashing. The "prior art" he dug up doesn't even look like the patent at issue. Challenge him on any of his nonsense, and he's gone. Where's the thought? I haven't seen it. It's just reactionary anti-IP nonsense.
Says the jackass that just can't stop himself from mindless Techdirt bashing. Pathetic.
It's "mindless" because he's trying to show how this patent is invalid by giving us pictures of toothpicks that are different. It's "mindless" because he mentions "substantial similarity" without explaining how that test would apply here. It's "mindless" because he refers to "the geniuses at the USPTO" as if they were wrong to issue the design patent when he hasn't actually demonstrated that that's true. This is just more par-for-the-course mindless IP-bashing from Mike. The point is to degrade the patent system. That's fine if he wants to do it, but he should back his stuff up. That's my point.
Do copyright supporters not see the inherent danger in this?
Take a movie like Apocalypse Now. The filmmaker has the full force of the First Amendment behind him. Take the pirate who downloads that film. Are you suggesting that the pirate's copying should also have the full force of the First Amendment behind him too simply because the thing he's copying does so? I don't see it that way.
I'm not the one posting the patent and implying that it's not valid because I found something kind of similar with a quick search. I'm not claiming it's valid or invalid. I'm merely pointing out that Mike didn't actually back up his implication that this patent is invalid. If it were me, I'd identify the standard and then explain why I think it meets or doesn't meet that standard here. You know, I'd discuss the actual law when reaching a legal conclusion. But that's just me.
Design patents can only be for the ornamental design, not the functional aspects of the product... Either way, it's not new.
But you haven't demonstrated that this design is not new. The toothpicks you pictured above are different. Can you actually show that this design is unpatentable? Or should we just chalk this post up to more mindless IP-bashing?
Looking to understand the concept of state copyright law. How does such law survive the first amendment? If art covered by copyright is protected speech, how does it become unprotected speech for someone other than the original creator? Wouldn't it be censorship for a local government to forbid it? Is the copyright clause extended to local governments or is speech that someone else spoke first not protected?
The cases to look at are Eldred v. Ashcroft: http://scholar.google.com/scholar_case?case=12147684852241107557 and Golan v. Holder: http://scholar.google.com/scholar_case?case=3239612723066820072 The short answer is that the Supreme Court said that since copyright only protects expression, and not ideas, and since fair use permits some copying, the First Amendment isn't violated by the copyright laws. While copyright protects art insofar as it is speech, the First Amendment "bears less heavily when speakers assert the right to make other people's speeches." So the First Amendment rights of the copyist are less robust than those of the original artist. The Copyright Clause only applies to the federal government, but because of preemption, see http://en.wikipedia.org/wiki/Federal_preemption , states can't make any copyright laws that conflict with the federal copyright laws. The First Amendment, on the other hand, applies to the states under the Fourteenth Amendment. See http://en.wikipedia.org/wiki/Gitlow_v._New_York
Pre-1972 sound recordings are not covered by federal copyright laws, but rather by a hodgepodge of state laws (and common law), but those have been entirely focused on reproduction/distribution and not on public performance.
But where is the body of California common law that limits Section 980(a)(2) to just the reproduction and distribution rights? There is none. The statute itself indicates no such limitation. It just says "exclusive ownership." And the court held that the one limitation that is explicitly provided in Section 980(a)(2) (for covers) implies that no other limitations were intended. In fact, California followed Section 114 of the Copyright Act when it amended Section 980(a)(2) in 1982, but it did not include the limitation for public performances that's found in Section 114(a). That implies that it didn't want that limitation. Why leave that out? Also, why no mention of the case law cited by the court, such as the BlueBeat opinion, where the public performance right was recognized? I think you're leaving a lot out.
Yes, you're not reading the article that is linked from the hyperlink for the phrase "protect Grooveshark."
Sorry, I should have been more clear. That linked-to article is about user-uploaded content. This decision is about content uploaded by the people at Grooveshark. From the opinion: "The claims asserted in this action only relate to the direct upload of plaintiffs’ copyrighted music by Escape’s officers and employees." Whether Grooveshark had licenses to perform those works is irrelevant. Hence my question of how the DMCA could possibly apply like it would with YouTube.
It could be argued that the employees of Grooveshark were not acting as Grooveshark employees when uploading files, but were acting as Grooveshark USERS and thus the company should have safe harbors from their actions and they would need to be sued for infringement individually.
I don't think that's what Mike meant since he said the "founders and employees were uploading a ton of music themselves." In that sentence I quoted above, Mike links to this earlier post of his: https://www.techdirt.com/articles/20110419/11434013962/grooveshark-insists-its-legal-points-out-that -using-dmca-safe-harbors-is-not-illegal.shtml There, he argues that Grooveshark should be legal like YouTube because "users upload content." But the issue in this case was not user-uploaded content. It's content that Grooveshark, through its principals and employees, uploaded. I don't understand how that could be legal in the way that YouTube is. Obviously these uploads weren't licensed, hence the lawsuit.
Thanks for the well balanced reasoning, Mike! It IS nice to see that other laws and cases on the books show that this didn't need to get as far as the safe harbor issue. Just like with patents, "on the internet" shouldn't be a reason for creating new legal precedent, and it looks like the court agrees (in this case).
But the court wasn't asked to look at the DMCA in the first place, was it?
If Grooveshark's founders and employees were uploading a ton of music themselves, there was a fairly legitimate argument that the same sort of DMCA safe harbors that protect YouTube would also protect Grooveshark.
Maybe I'm just not reading this correctly, but I don't follow you, Mike. If the people at Grooveshark were themselves uploading the files, then how could they possibly get safe harbor? 512(c) only applies "for infringement of copyright by reason of the storage at the direction of a user." The content wouldn't be stored "at the direction of a user" if they uploaded it themselves. Am I missing something?
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: not just lines
I disappeared rather than discuss some issue straightforwardly? I don't remember it that way. If there's some issue you'd like me to discuss directly and honestly, I'm right here and ready to go. I love a good challenge!
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: Re: Re: not just lines
Doesn't the would-be patentee prove the patent is valid during prosecution?
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: Re: Re: not just lines
Why do you think they are substantially different?
The most obvious difference is that the patented toothpick merely has two stripes on it while the ones in the picture have three grooves. Stripes and grooves aren't the same thing. I appreciate that you dug up the "ordinary observer" test for substantial similarity. Honestly, I'd have to read several cases applying that standard before I could form an educated opinion about how that applies here. But my point isn't that Mike's reached the wrong conclusion. It's that he didn't do the work necessary to reach any conclusion at all.
On the post: Design Patent Granted... On A Toothpick
Re: Re: The confusion of design patents
I was thinking it's more like a copyright than a trademark.
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: not just lines
Thanks. Unfortunately, it's the common reaction here. Dare to challenge Oz the Great and Powerful, and the minions freak out.
It is correct to say that the author of this article has stated a conclusion, but without adequate substantiation.
That was my point as well. I don't care if he wants to bash on a patent because he thinks it's invalid. It'd just be nice if he actually backed it up with something that resembles legal analysis.
On the post: How The Sirius XM Ruling Upsets Decades Of Copyright Law Consensus
Re: Re:
Good point. I'm sure there are implied limitations under the common law such that the rights are exhausted in some ways. But, here, I don't think there's any implied limitation on the public performance right. Mike claims there's a "consensus," but then he can't point to a single case interpreting this statute in the way that reflects this supposed "consensus."
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: not just lines
Can you show me this prior art that is "substantially similar," under the appropriate meaning of that test, for this toothpick?
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: not just lines
As far as I can tell, he puts very little thought into his IP-bashing. The "prior art" he dug up doesn't even look like the patent at issue. Challenge him on any of his nonsense, and he's gone. Where's the thought? I haven't seen it. It's just reactionary anti-IP nonsense.
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: Re: Re: not just lines
I did not imply it's valid. I pointed out that Mike didn't show it's invalid. There's a difference.
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: not just lines
It's "mindless" because he's trying to show how this patent is invalid by giving us pictures of toothpicks that are different. It's "mindless" because he mentions "substantial similarity" without explaining how that test would apply here. It's "mindless" because he refers to "the geniuses at the USPTO" as if they were wrong to issue the design patent when he hasn't actually demonstrated that that's true. This is just more par-for-the-course mindless IP-bashing from Mike. The point is to degrade the patent system. That's fine if he wants to do it, but he should back his stuff up. That's my point.
On the post: How The Sirius XM Ruling Upsets Decades Of Copyright Law Consensus
Re: Re: Re:
Take a movie like Apocalypse Now. The filmmaker has the full force of the First Amendment behind him. Take the pirate who downloads that film. Are you suggesting that the pirate's copying should also have the full force of the First Amendment behind him too simply because the thing he's copying does so? I don't see it that way.
On the post: Design Patent Granted... On A Toothpick
Re: Re: Re: Re: not just lines
On the post: Design Patent Granted... On A Toothpick
Re: Re: not just lines
But you haven't demonstrated that this design is not new. The toothpicks you pictured above are different. Can you actually show that this design is unpatentable? Or should we just chalk this post up to more mindless IP-bashing?
On the post: How The Sirius XM Ruling Upsets Decades Of Copyright Law Consensus
Re:
The cases to look at are Eldred v. Ashcroft: http://scholar.google.com/scholar_case?case=12147684852241107557 and Golan v. Holder: http://scholar.google.com/scholar_case?case=3239612723066820072 The short answer is that the Supreme Court said that since copyright only protects expression, and not ideas, and since fair use permits some copying, the First Amendment isn't violated by the copyright laws. While copyright protects art insofar as it is speech, the First Amendment "bears less heavily when speakers assert the right to make other people's speeches." So the First Amendment rights of the copyist are less robust than those of the original artist. The Copyright Clause only applies to the federal government, but because of preemption, see http://en.wikipedia.org/wiki/Federal_preemption , states can't make any copyright laws that conflict with the federal copyright laws. The First Amendment, on the other hand, applies to the states under the Fourteenth Amendment. See http://en.wikipedia.org/wiki/Gitlow_v._New_York
On the post: How The Sirius XM Ruling Upsets Decades Of Copyright Law Consensus
But where is the body of California common law that limits Section 980(a)(2) to just the reproduction and distribution rights? There is none. The statute itself indicates no such limitation. It just says "exclusive ownership." And the court held that the one limitation that is explicitly provided in Section 980(a)(2) (for covers) implies that no other limitations were intended. In fact, California followed Section 114 of the Copyright Act when it amended Section 980(a)(2) in 1982, but it did not include the limitation for public performances that's found in Section 114(a). That implies that it didn't want that limitation. Why leave that out? Also, why no mention of the case law cited by the court, such as the BlueBeat opinion, where the public performance right was recognized? I think you're leaving a lot out.
On the post: The Silver Lining On The Grooveshark Ruling: At Least It Didn't Screw Up The DMCA Safe Harbors
Re: Re:
Aha! Thanks, Mike.
On the post: The Silver Lining On The Grooveshark Ruling: At Least It Didn't Screw Up The DMCA Safe Harbors
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Sorry, I should have been more clear. That linked-to article is about user-uploaded content. This decision is about content uploaded by the people at Grooveshark. From the opinion: "The claims asserted in this action only relate to the direct upload of plaintiffs’ copyrighted music by Escape’s officers and employees." Whether Grooveshark had licenses to perform those works is irrelevant. Hence my question of how the DMCA could possibly apply like it would with YouTube.
On the post: The Silver Lining On The Grooveshark Ruling: At Least It Didn't Screw Up The DMCA Safe Harbors
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I don't think that's what Mike meant since he said the "founders and employees were uploading a ton of music themselves." In that sentence I quoted above, Mike links to this earlier post of his: https://www.techdirt.com/articles/20110419/11434013962/grooveshark-insists-its-legal-points-out-that -using-dmca-safe-harbors-is-not-illegal.shtml There, he argues that Grooveshark should be legal like YouTube because "users upload content." But the issue in this case was not user-uploaded content. It's content that Grooveshark, through its principals and employees, uploaded. I don't understand how that could be legal in the way that YouTube is. Obviously these uploads weren't licensed, hence the lawsuit.
On the post: The Silver Lining On The Grooveshark Ruling: At Least It Didn't Screw Up The DMCA Safe Harbors
Re: Excellent summary...
But the court wasn't asked to look at the DMCA in the first place, was it?
On the post: The Silver Lining On The Grooveshark Ruling: At Least It Didn't Screw Up The DMCA Safe Harbors
Maybe I'm just not reading this correctly, but I don't follow you, Mike. If the people at Grooveshark were themselves uploading the files, then how could they possibly get safe harbor? 512(c) only applies "for infringement of copyright by reason of the storage at the direction of a user." The content wouldn't be stored "at the direction of a user" if they uploaded it themselves. Am I missing something?
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