CarlWeathersForPres (profile), 15 Feb 2011 @ 1:53pm
Re: Re: Re: Re:
It might only be necessary, under contributory infringement, to notify the top level registrar. I don't necessarily agree with it, but the opposite is finding the physical developers who created the website to serve process, which is almost infringing due process on the opposite side(if someones harming you, you should be able to sue to stop/alleviate the harm, which under the current Federal Rules of Civil Procedure might not be possible because process can't be served).
Either way I disagree with the legal conclusions you've arrived to, just because I don't necessarily think Fort Wayne applies to copyright. There may also be some sort of loophole(although I think this is a very tenuous argument) where it's impossible to reach those people so posting somewhere is the only thing that is necessary.
CarlWeathersForPres (profile), 15 Feb 2011 @ 1:39pm
Re: Re: Re: Re: Re:
But this isn't necessarily a free speech issue. Fort Wayne is a case that derives the taking as an obscenity issue(in the realm of free speech) while here we're in the mandate of IP and copyright, which although related, probably don't have the same justifications(having not reviewed every piece of case law, I can't speak for certain). I understand the justifications for not enjoining during an obscenity case, but it's a different justification for copyright infringement.
Sorry for going off on the free speech thing, I've just seen other people bring up free speech as a justification, and having not read or understood why there was a link between the two I thought it was a BS justification that people threw out.
As far as current law I think AP v. INS gives a good rundown of the fundamentals at work(and what would probably be a pretty good guess of where some courts would start with analysis), although the copyright(and it was misappropriation not copyright, but it was made up on the spot to rectify what was going on because of the framework at the time) and 1st amendment law has changed, it does a good job of giving the underlying policy concerns. I think you could also look to the underlying principles of the fair use doctrine and how courts have come out on preliminary injunctions (although I didn't agree with the decision the injunction from Sarah Palin on the first publication of some of the segments of her book).
CarlWeathersForPres (profile), 15 Feb 2011 @ 11:56am
Re: Re:
That's a slightly different situation. I guess my second question is were the hosting companies notified?
Really, this is just a procedural issue that I'm not sure would have much difficulty being rectified(really, these companies are destroying copyright law and there really wouldn't be much difference if you forced them to send some sort of notice).
CarlWeathersForPres (profile), 15 Feb 2011 @ 11:30am
Re: Re: Re:
And Article 1 allows Congress to promote science and the useful arts by granting a limited monopoly to the inventors and authors. These are competing constitutional principles, and copyright analysis is done in light of the principles of free speech(dissemination of information).
Free speech and free press doesn't mean you can say anything you want without repercussion(see Libel, obscenity, fighting words, child porn, commercial speech).
CarlWeathersForPres (profile), 15 Feb 2011 @ 11:13am
Re:
Due process just requires a showing in front of an impartial arbiter(judge). You have to meet thresholds(in this case it is likelihood to win at trial and irreparable harm will be done without the seizure), for a warrant(another case where the government takes something or enters a private place without your consent) it is probable cause.
I guess technically they are guilty until proven innocent, except for the fact that they were originally shown to have a high probability of guilt. Let's put this in a different situation, if there was someone dumping raw sewage into the local river is it realistic to wait until a trial is completed before you stop the dumping(preliminary injunction) or if you show that they're breaking laws at the beginning(almost no probability that they're doing it legally) is it reasonable to tell them to stop until the legal process is complete?
CarlWeathersForPres (profile), 15 Feb 2011 @ 10:46am
Re: Re: Re: Re: Re: Re:
Sorry, I typed, hit enter, and immediately realized I should have been talking about preliminary injunction(and then had to run) and not the threshold needed for a warrant. I don't really think it makes it that much harder to meet this burden, at least in terms of what material you could present in this case.
The Supreme Court gives us Winters v. Natural Resources Defense Council(2008) which state that one “must establish that he is likely to succeed on the merits [i.e. win at trial], that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Showing the nature of what is sold on the site(illegal goods), and the irreparable harm(the unlikelihood of foreign defendants being availed to US courts for copyright infringement) would probably suffice for likelihood to win an irreparable harm.
CarlWeathersForPres (profile), 15 Feb 2011 @ 9:52am
Re: Re: Re: Re:
It's probable cause. I'm pretty sure probable cause, in a piracy case, is showing the video collection on the site and asking the content originator if there was a license. If there's a pretty strong case for providing unlicensed content I'd think you'd have probable cause.
I'll ask you the question, what level of evidence do you need to think a website is probably pirating goods(movies, shows, jerseys, toys, etc.)? For me, it's the pictures of goods offered in comparison with the original(copyrighted or trademarked) goods and the unlicensed nature of the offer.
CarlWeathersForPres (profile), 15 Feb 2011 @ 9:30am
Re: Re:
Are you sure, I saw posted on this site the court proceedings(i.e. a warrant), which makes me assume that there was a level of due process in front of a magistrate/judge and there was a minimum threshold that needed to be met before the property could be seized.
Please, don't confuse due process with a long drawn out court proceedings. These companies are able to get their property back by fighting this in US courts. But, as with any other legal case, preliminary injunctions or seizures of property can apply if certain thresholds are met.
CarlWeathersForPres (profile), 15 Feb 2011 @ 8:56am
Question:
By no due process do you mean there was absolutely no notification or the web hosts did not show up in court to defend themselves? The former is bad, the latter is first year civil procedure and ok.
In reality, as one of these websites, it's more economic to be shutdown and open back up in 3 days under a new domain than to show up and court, fight it, and possibly face copyright charges. Why avail yourself to jurisdiction in the US if it takes 2 days to be back in business?
CarlWeathersForPres (profile), 15 Feb 2011 @ 8:46am
You realize there is a right to privacy, and the only first amendment right you have is if someone is a public figure, which is a very murky term. Essentially, you can pretty much say anything about politicians, or critique someone for how they put themselves into public (e.g. calling Jenny McCarthy a moron for thinking vaccines are bad).
As for the broader policy issue, do we feel the need to put Marylin Monroe on everything because we "should be able to" and there's freedom of speech? Why should we have the right to use someones face/likeness to publicize our own product without their consent?
CarlWeathersForPres (profile), 11 Feb 2011 @ 12:01pm
Re: Re: Get your brooms, I call shenanigans
My problem is that Mike is using these studies as a definitive statement of the entire system being wrong, when in reality it's defining the dynamics of how it works, and in the conclusion says all 3 are necessary. He's also linked to a few academic papers as "proof" when there is no data, just conjecture.
I used steal in the sense of a world without IP(you take someone's idea and capitalize on it). Maybe copy would have been a better term. Either way, the point is the same, if you and 15 other people work for 4 months on the solution to a difficult problem, you expect some sort of compensation so you can eat/pay the heat/etc. If you're looking to manufacture a drug(most pronounced example), it would take pfizer(or GSK/other conglomorate) 2 weeks to revers engineer the formula and batch produce the pills, which at that time you wouldn't even have manufacturing.
You're right, innovations are incremental, as Einstein stole from Newton "I see further because I stand on the shoulders of giants." But a patent isn't necessarily to protect research already done or to encourage research, it's to protect the capital investment to commercialize that invention. Honestly, as a patent holder I don't see the incentive to stop people from continuing research on that patent. So you're telling me that I can make a little bit of money off someone else improving what I did? Where do I sign up?
Now, patent trolls and defensive patenting(for holding, not using) are a completely different issue, which I believe(but haven't researched) go against the constitutional provision("To promote the progress of science and the useful arts"). Honestly, the reason for a patent is to get your foot in the door of that market so that you can be rewarded, not to stifle the legitimate work of scientists.
CarlWeathersForPres (profile), 10 Feb 2011 @ 8:10pm
Get your brooms, I call shenanigans
Mike,
I think you're missing the point of what von Hippel has published. In the article linked through your blog post from last April(which was updated in August), he essentially looks at innovation in terms of costs, and concludes something which is rather intuitive, "if it's simple and cheap, individuals do it, if not innovation is done by groups"(which is essentially what this times article is saying, people will color half of a clock because it's easy and cheap but won't invent a cure for cancer because it's tougher and more expensive) and then when looking at the group dynamic, he states that open networks are efficient when communication costs(the effort it takes to share information) are low.
In my opinion, the problem with the reliance on the open source community, and he states it in his article, is that the reason the costs are so low is that typically the innovators do the work for free(or for donations once the product is produced). This is fine if you're aggregating 20 people to work part-time after working hours, but becomes more difficult if this is your primary model of innovation, since there is a very high upfront cost and a lot of risk in the hope that others like your product.
In terms of eliminating patents, I don't really see how he argues for it at all, except for the cases where cost of production of the end product is so low that there is no incentive to steal the product(software) or the demand is so low that there is no reason to mass produce it(specialty equipment/chemicals). For mass produced products with a wide range of consumers, the incentive to steal the idea is high, so unless the innovator makes a huge gamble to get a head of the competition by creating a facility with a large production capacity(and keep his prices low enough so that there is little incentive for competitors to enter the market), there's a pretty strong likelihood that the innovator would leveraged out of the market that he created, and there's less of a chance that he would see the return on efforts.
CarlWeathersForPres (profile), 10 Feb 2011 @ 1:20pm
Bad Article
Mike,
I have to strongly disagree with the linked article and your interpretation. The author admits "[i]t is true that reinvention is somewhat easier to fake than first invention is" but then rebuts this problem it with his own opinion, which is relatively unconvincing. He says that obtaining a forced license by lying(to allow your business to survive) is less profitable than lying to obtain patent rights. Let's look at this hypothetically, if you were google(or some other gigantic corporation with tons of money), this defense allows you to avoid the patent rights of a small creator by lying about independent invention, and then you can force him out of the market through larger marketing budgets, more distribution or other business(not innovation) advantages.
I think this change could have some merit if there was forced licensing for any patent which invokes an interference(i.e. a second filed patent within 18 months, before the patent application is published). At least with this, this would have a stronger tie to the actual innovation(instead of just litigating for business purposes).
CarlWeathersForPres (profile), 10 Feb 2011 @ 12:57pm
Re: The Patent System
Completely agree. I think you'd have a lot of litigation arising out of what slot you're characterized in, but I think at least then it would narrow some of the boundaries of the broad claims.
CarlWeathersForPres (profile), 10 Feb 2011 @ 9:49am
Re: Re:
My problem is that you're essentially passing the buck from one issue to another(litigation over first to invent v. litigation over independent inventor), and in 10 years when the case law catches up, we'll be in the same exact position. If you want to fix it, change it, don't pass the buck(I'll read the study when I get a chance, but I tend to be skeptical that you can quantifiably determine something sociological/economic without any data). As far as taking someone's word, no court will take someones word and every R&D department I've ever worked in meticulously dates lab notes and files them for just these purposes. Again, you're asking for a standard that is in place(see Woodland Trust v. Flowertree Nursery).
There is no true obviousness standard. As Justice Stewart said when talking about pornography, "I'll know it when I see it," which in terms of innovation it's probably the best you're going to do. I think doing any more of a bright line test than combination of 2 known inventions or easily predictable results makes it almost an unworkable standard.
CarlWeathersForPres (profile), 9 Feb 2011 @ 10:44pm
Re: THE SPIRIT OF THE PEOPLE
Wow, how did Hollywood implement anti-trust laws before there were theaters to play motion pictures in? I always thought the railroad and steel monopolies were to blame for Americans disliking the upper class(as well as how many Americans were stuck working for barely any money in the factories that made those people rich).
On the post: Would Shakespeare Have Survived Today's Copyright Laws?
Re: Re: Would Johannes Brahms have survived?
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re: Re: Re:
Either way I disagree with the legal conclusions you've arrived to, just because I don't necessarily think Fort Wayne applies to copyright. There may also be some sort of loophole(although I think this is a very tenuous argument) where it's impossible to reach those people so posting somewhere is the only thing that is necessary.
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re: Re: Re: Re:
Sorry for going off on the free speech thing, I've just seen other people bring up free speech as a justification, and having not read or understood why there was a link between the two I thought it was a BS justification that people threw out.
As far as current law I think AP v. INS gives a good rundown of the fundamentals at work(and what would probably be a pretty good guess of where some courts would start with analysis), although the copyright(and it was misappropriation not copyright, but it was made up on the spot to rectify what was going on because of the framework at the time) and 1st amendment law has changed, it does a good job of giving the underlying policy concerns. I think you could also look to the underlying principles of the fair use doctrine and how courts have come out on preliminary injunctions (although I didn't agree with the decision the injunction from Sarah Palin on the first publication of some of the segments of her book).
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re:
Really, this is just a procedural issue that I'm not sure would have much difficulty being rectified(really, these companies are destroying copyright law and there really wouldn't be much difference if you forced them to send some sort of notice).
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re:
As far as Due Process, I believe they're following the rulings by the Supreme Court. You know, the guys who interpret what procedural due process is.
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re: Re:
Free speech and free press doesn't mean you can say anything you want without repercussion(see Libel, obscenity, fighting words, child porn, commercial speech).
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re:
I guess technically they are guilty until proven innocent, except for the fact that they were originally shown to have a high probability of guilt. Let's put this in a different situation, if there was someone dumping raw sewage into the local river is it realistic to wait until a trial is completed before you stop the dumping(preliminary injunction) or if you show that they're breaking laws at the beginning(almost no probability that they're doing it legally) is it reasonable to tell them to stop until the legal process is complete?
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re: Re: Re: Re: Re:
The Supreme Court gives us Winters v. Natural Resources Defense Council(2008) which state that one “must establish that he is likely to succeed on the merits [i.e. win at trial], that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Showing the nature of what is sold on the site(illegal goods), and the irreparable harm(the unlikelihood of foreign defendants being availed to US courts for copyright infringement) would probably suffice for likelihood to win an irreparable harm.
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re: Re: Re:
I'll ask you the question, what level of evidence do you need to think a website is probably pirating goods(movies, shows, jerseys, toys, etc.)? For me, it's the pictures of goods offered in comparison with the original(copyrighted or trademarked) goods and the unlicensed nature of the offer.
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
Re: Re:
Please, don't confuse due process with a long drawn out court proceedings. These companies are able to get their property back by fighting this in US courts. But, as with any other legal case, preliminary injunctions or seizures of property can apply if certain thresholds are met.
On the post: Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
By no due process do you mean there was absolutely no notification or the web hosts did not show up in court to defend themselves? The former is bad, the latter is first year civil procedure and ok.
In reality, as one of these websites, it's more economic to be shutdown and open back up in 3 days under a new domain than to show up and court, fight it, and possibly face copyright charges. Why avail yourself to jurisdiction in the US if it takes 2 days to be back in business?
On the post: MPEG-LA Follows Through On Its Promise To Go After Google For Daring To Offer Patent-Free Video
On the post: DailyDirt: Better Medicine
On the post: Judge Says Parts Of Washington's Publicity Rights Law Are Unconstitutional
As for the broader policy issue, do we feel the need to put Marylin Monroe on everything because we "should be able to" and there's freedom of speech? Why should we have the right to use someones face/likeness to publicize our own product without their consent?
On the post: When Consumers Innovate To Solve Their Own Needs, Do Patents Just Get In The Way?
Re: Re: Get your brooms, I call shenanigans
I used steal in the sense of a world without IP(you take someone's idea and capitalize on it). Maybe copy would have been a better term. Either way, the point is the same, if you and 15 other people work for 4 months on the solution to a difficult problem, you expect some sort of compensation so you can eat/pay the heat/etc. If you're looking to manufacture a drug(most pronounced example), it would take pfizer(or GSK/other conglomorate) 2 weeks to revers engineer the formula and batch produce the pills, which at that time you wouldn't even have manufacturing.
You're right, innovations are incremental, as Einstein stole from Newton "I see further because I stand on the shoulders of giants." But a patent isn't necessarily to protect research already done or to encourage research, it's to protect the capital investment to commercialize that invention. Honestly, as a patent holder I don't see the incentive to stop people from continuing research on that patent. So you're telling me that I can make a little bit of money off someone else improving what I did? Where do I sign up?
Now, patent trolls and defensive patenting(for holding, not using) are a completely different issue, which I believe(but haven't researched) go against the constitutional provision("To promote the progress of science and the useful arts"). Honestly, the reason for a patent is to get your foot in the door of that market so that you can be rewarded, not to stifle the legitimate work of scientists.
On the post: When Consumers Innovate To Solve Their Own Needs, Do Patents Just Get In The Way?
Get your brooms, I call shenanigans
I think you're missing the point of what von Hippel has published. In the article linked through your blog post from last April(which was updated in August), he essentially looks at innovation in terms of costs, and concludes something which is rather intuitive, "if it's simple and cheap, individuals do it, if not innovation is done by groups"(which is essentially what this times article is saying, people will color half of a clock because it's easy and cheap but won't invent a cure for cancer because it's tougher and more expensive) and then when looking at the group dynamic, he states that open networks are efficient when communication costs(the effort it takes to share information) are low.
In my opinion, the problem with the reliance on the open source community, and he states it in his article, is that the reason the costs are so low is that typically the innovators do the work for free(or for donations once the product is produced). This is fine if you're aggregating 20 people to work part-time after working hours, but becomes more difficult if this is your primary model of innovation, since there is a very high upfront cost and a lot of risk in the hope that others like your product.
In terms of eliminating patents, I don't really see how he argues for it at all, except for the cases where cost of production of the end product is so low that there is no incentive to steal the product(software) or the demand is so low that there is no reason to mass produce it(specialty equipment/chemicals). For mass produced products with a wide range of consumers, the incentive to steal the idea is high, so unless the innovator makes a huge gamble to get a head of the competition by creating a facility with a large production capacity(and keep his prices low enough so that there is little incentive for competitors to enter the market), there's a pretty strong likelihood that the innovator would leveraged out of the market that he created, and there's less of a chance that he would see the return on efforts.
On the post: The White House Wants Advice On What's Blocking American Innovation
Bad Article
I have to strongly disagree with the linked article and your interpretation. The author admits "[i]t is true that reinvention is somewhat easier to fake than first invention is" but then rebuts this problem it with his own opinion, which is relatively unconvincing. He says that obtaining a forced license by lying(to allow your business to survive) is less profitable than lying to obtain patent rights. Let's look at this hypothetically, if you were google(or some other gigantic corporation with tons of money), this defense allows you to avoid the patent rights of a small creator by lying about independent invention, and then you can force him out of the market through larger marketing budgets, more distribution or other business(not innovation) advantages.
I think this change could have some merit if there was forced licensing for any patent which invokes an interference(i.e. a second filed patent within 18 months, before the patent application is published). At least with this, this would have a stronger tie to the actual innovation(instead of just litigating for business purposes).
On the post: The White House Wants Advice On What's Blocking American Innovation
Re: The Patent System
On the post: The White House Wants Advice On What's Blocking American Innovation
Re: Re:
There is no true obviousness standard. As Justice Stewart said when talking about pornography, "I'll know it when I see it," which in terms of innovation it's probably the best you're going to do. I think doing any more of a bright line test than combination of 2 known inventions or easily predictable results makes it almost an unworkable standard.
On the post: The White House Wants Advice On What's Blocking American Innovation
Re: THE SPIRIT OF THE PEOPLE
Next >>