This reminds me of the scenario in Moore v Regents of the University of California (http://en.wikipedia.org/wiki/Moore_v._Regents_of_the_University_of_California) where cancer cells were removed as part of treatment and then turned into a profitable, patented cell line, without the consent of Moore (with all sorts of fund chicanery as well). The court found that people could not have property rights in their own tissues for a variety of reasons, both practical and moral. Therefore Moore was not entitled to any money made through the commercializati of his cancer.
One of the practical concerns cited by the court was chilling of medical research, by creating fear of unwittingly using "stolen" tissue. Which is interesting, because this argument applies equally well to the patent in the developed cell line (and patents in general) - fear of patent litigation stifling innovation and all that.
A motion to dismiss is not a motion for summary judgment.
1) The original story is unclear, but after looking at the decision itself it bears mentioning that this was a motion to dismiss, meaning all of the plaintiff's allegations are treated as true - there is really no determination about whether they are actually true. The motion to dismiss is really more about determining whether the plaintiffs allegations make out a valid claim of copyright infringement. Summary judgment is where you see start to see actual factual inquiry. (as a sidenote, I really wish reporting on court decisions would do a better job at addressing procedural posture - its kind of important for the significance of these rulings).
2) In the decision, the fair use argument is characterized as follows:
Defendants argue that, if they used LaChapelle’s protected material, it was to "critic[ize] how
Rihanna is treated by the press and comment on her relationship with the media."
If this is sum and substance of Rihanna's fair use argument, the judge is dead on that it is unavailing.
Re: Re: Re: Hacking does not require a copyright factor
wire fraud is more tenuous and will depend on interpretations of the JSTOR terms of use license for the purpose of downloading the information in question,
This seems interesting. Could you elaborate on the relationship between the JSTOR Terms of Use and wire fraud?
Maybe I read the indictment wrong, but it looks three of the four counts require the government to prove that he acquired something of value. Count I and II are the fraud charges, so they require the acquisition of something of value. One element of Count III requires the information to be worth over $5,000.
Can they prove that the information is something of value without copyright?
Of course that still leaves Count IV, which requires them to prove that the damage exceeded $5,000. I'm assuming they would do that by valuing downtime for JSTOR and/or lack of access to JSTOR by MIT, so that seems more tenable. But that knocks his punishment down to 5 years, rather than the aggregate 35 years.
Under 18 USC 1343 a requisite element of wire fraud is "obtaining money or property by means of false or fraudulent pretenses". Computer fraud, 18 USC 1030(a)(4) requires the person only to "obtain[] anything of value" which is somewhat more broad, but still requires there to be something of value.
I really can't see the establishment of value without copyright. Possibly she could argue that the value of the service provided by JSTOR is sufficient. However, since he had access to JSTOR legally, that seems like a stretch. Of course they don't have to allege criminal infringement in order to use copyright to establish value, but they do have to prove value and it seems like they would have to prove copyright infringement to do so.
I agree that the public/private location of the computer separates the two cases - those factors are what I was thinking of when I distinguished between hacking and privacy issues. I think (and I think we agree) that Aarons violated their customers' privacy in a pretty egregious manner, while the apple store customers suffered no comparable violation.
My point is just that, regarding the hacking charge (where hacking is classified as an interception of communications), both situations are equally likely to be hacking.
Separately, the judge suggested that the family has a weak case, because the CFAA computer hacking law they're relying on requires interception of electronic communications... and the court isn't sure that snapping a photo of you captures electronic communications
Its interesting to compare this case to the incident with the Apple Store and performance artist taking photos of customers ( http://goo.gl/BQAqa ). obviously the privacy issues are very different, but considering the hacking alone issue, it seems like the relevant facts are similar - both involve remotely activating a webcam and using it to surreptitiously observe and photograph them. If remotely controlling a webcam in this fashion constitutes hacking in one of these incidents it should be considered hacking in both.
They could argue that if a file has been copied then all people with copies are infringers either through receiving copies or by making them for other people. So if I rip a CD and send copies to my friends, all of us have infringed the copyright. It really doesn't matter that I had a license, as my copying exceeded its scope.
Also the Rightshaven decision is not really anything new. The standing requirements at issue are well-settled and uncontroversial. The only reason it took so long is because Rightshaven was so dishonest about its ownership interest in the copyrights at issue.
Right - its analogous to how you are licensed to listen to a record you purchased and to make a copy by ripping mp3s, but you don't actually have standing to sue.
Lawyer here. Try not to say lawyer three times in front of a mirror with the lights off, because we are really boring and hard to get rid of. Also I don't specialize in software licensing, so grain of salt etc.
In answer to your question, maybe. Just because you are licensed to do x, y or z doesn't mean you have standing to sue. Especially becasue what we are talking about isn't an infringement of those rights, but an infringement of share-alike provisions or the source availability provisions. For this reason the FSF generally wants people to assign copyright to them so they can enforce the GPL. (http://www.gnu.org/licenses/why-assign.html)
I don't think dropbox is that big - my understanding is that they use Amazon S3 for their cloud capabilities, so the majority of what they do seems to be designing the interface and syncing features. If that's the case, just getting an S3 account puts you fairly close to dropbox functionality.
Umm after taking your advice, I poked around and discovered that the proposed law would require the craft brewer making less than 100,000 barrels per year to choose between a retail sales license OR a distribution license, rather than being able to have both. Meaning a brew-pub could not also sell its beer in the supermarket next door, a situation reminiscent of the one described in the TP article you disparaged.
In other words, after looking into this issue as you recommended, I am saddened to discover that you are completely wrong. Perhaps you would have seen this had you taken off your rage-colored glasses before commenting.
This opinion is actually a bit less monolithic than it initially appears. The concurring opinion is pretty interesting in that it upholds the clear and convincing standard, but characterizes the scope of its application as fairly narrow.
The concurrence draws the line between a question of fact and question of law such that the clear and convincing standard (which applies only to questions of fact) applies only to determining the narrow questions about whether alleged events occurred:
"Thus a factfinder must use the “clear and convincing” standard where there are disputes about, say, when a product was first sold or whether a prior art reference hadbeen published"
The concurrence goes on to state that question of whether these facts amount to public use or can show a lack of novelty or that the patent is obvious is a question of law, and the clear and convincing standard doesn't apply.
The problem is that the magistrate's decision (the judge has to approve the order before it has legal force) dismisses the negligence cause of action as being preempted by the UCC (Uniform Commercial Code), which requires only "commercially reasonable" efforts. (Statutes take priority over the common law).
Not sure if this applies in Maine as well, but generally changes to safety precautions are not admissible evidence for demonstrating the original methods were flawed, the rationale being that to allow that type of evidence would discourage companies from improving safety for fear of increasing their liability.
All you spoiled peasants need to wise up, what with your grasping entitlement to not give one-tenth of your crops and your wife's vajajay to your duly seised feudal lord.
If we didn't get to bang your wife and eat half of your turnips, then we would not have the incentive to commission artisans to craft the kind of nice things that we won't let you have because your mud-addled, sub-human minds couldn't appreciate them.
I am agnostic on whether legally mandating the return period is a good policy. However if it is the law of Taiwan I fail to see why the onus for compliance falls on the developer alone.
If sellers of consumer goods in the US were mandated to accept returns for seven days regardless of their fault, Best Buy would have to accept returns of the game for seven days regardless of whether it was at fault. Maybe that would be a bad law, but it would be silly for Best Buy to argue that it shouldn't have to comply because other parties could also offer a refund.
Presumably, Best Buy would have contractual rights to be reimbursed by the distributor in a case like that, just like Google/Apple can retain the right to hold the developers' money until the app clears the seven day period.
On the post: Do You Have Property Rights Over Your DNA?
Property rights in tissue - unforeseen costs
One of the practical concerns cited by the court was chilling of medical research, by creating fear of unwittingly using "stolen" tissue. Which is interesting, because this argument applies equally well to the patent in the developed cell line (and patents in general) - fear of patent litigation stifling innovation and all that.
On the post: Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward
A motion to dismiss is not a motion for summary judgment.
2) In the decision, the fair use argument is characterized as follows:
If this is sum and substance of Rihanna's fair use argument, the judge is dead on that it is unavailing.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Re: Re: Re: Hacking does not require a copyright factor
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Re: Hacking does not require a copyright factor
This seems interesting. Could you elaborate on the relationship between the JSTOR Terms of Use and wire fraud?
Maybe I read the indictment wrong, but it looks three of the four counts require the government to prove that he acquired something of value. Count I and II are the fraud charges, so they require the acquisition of something of value. One element of Count III requires the information to be worth over $5,000.
Can they prove that the information is something of value without copyright?
Of course that still leaves Count IV, which requires them to prove that the damage exceeded $5,000. I'm assuming they would do that by valuing downtime for JSTOR and/or lack of access to JSTOR by MIT, so that seems more tenable. But that knocks his punishment down to 5 years, rather than the aggregate 35 years.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Hacking does not require a copyright factor
I really can't see the establishment of value without copyright. Possibly she could argue that the value of the service provided by JSTOR is sufficient. However, since he had access to JSTOR legally, that seems like a stretch. Of course they don't have to allege criminal infringement in order to use copyright to establish value, but they do have to prove value and it seems like they would have to prove copyright infringement to do so.
On the post: Court Refuses To Issue Injunction Stopping Secret Web Spycams From Running On Rental Laptops
Re: Re: Compare to apple store
My point is just that, regarding the hacking charge (where hacking is classified as an interception of communications), both situations are equally likely to be hacking.
On the post: Court Refuses To Issue Injunction Stopping Secret Web Spycams From Running On Rental Laptops
Compare to apple store
Its interesting to compare this case to the incident with the Apple Store and performance artist taking photos of customers ( http://goo.gl/BQAqa ). obviously the privacy issues are very different, but considering the hacking alone issue, it seems like the relevant facts are similar - both involve remotely activating a webcam and using it to surreptitiously observe and photograph them. If remotely controlling a webcam in this fashion constitutes hacking in one of these incidents it should be considered hacking in both.
On the post: Shouldn't Free Mean The Same Thing Whether Followed By 'Culture' Or 'Software'?
Re: Re: Re: Agree, but addition
On the post: Could Apple's MusicMatch Be A Tool To Identify Infringers?
Re: You can't prove the act with Apple's data
On the post: Pusser's Rum Wins Ridiculous Trademark Battle, But Loses The War As Bartenders Protest And Boycott
Re: Re: Re:
On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source
Re: Re:
On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source
Re: Re: Re: Re:
On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source
Re: Re:
In answer to your question, maybe. Just because you are licensed to do x, y or z doesn't mean you have standing to sue. Especially becasue what we are talking about isn't an infringement of those rights, but an infringement of share-alike provisions or the source availability provisions. For this reason the FSF generally wants people to assign copyright to them so they can enforce the GPL. (http://www.gnu.org/licenses/why-assign.html)
On the post: Oops: Dropbox Left All User Accounts Wide Open For Four Hours This Weekend
Re:
On the post: Giant Breweries Get Laws Passed In Wisconsin To Make Life Hard For Small Breweries [Updated]
Re:
In other words, after looking into this issue as you recommended, I am saddened to discover that you are completely wrong. Perhaps you would have seen this had you taken off your rage-colored glasses before commenting.
On the post: Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents
Not as bad as it looks (but still not good)
The concurrence draws the line between a question of fact and question of law such that the clear and convincing standard (which applies only to questions of fact) applies only to determining the narrow questions about whether alleged events occurred:
"Thus a factfinder must use the “clear and convincing” standard where there are disputes about, say, when a product was first sold or whether a prior art reference hadbeen published"
The concurrence goes on to state that question of whether these facts amount to public use or can show a lack of novelty or that the patent is obvious is a question of law, and the clear and convincing standard doesn't apply.
On the post: Judge: Not Having The Best Security Not Illegal; Defrauded Company Can't Blame Bank
Re: Established Case Law
On the post: Judge: Not Having The Best Security Not Illegal; Defrauded Company Can't Blame Bank
Re: Has the Bank changed its on-line security?
On the post: Entitlement? Spoiled Brats? Or Just Progress?
Cursed low-born fools!
If we didn't get to bang your wife and eat half of your turnips, then we would not have the incentive to commission artisans to craft the kind of nice things that we won't let you have because your mud-addled, sub-human minds couldn't appreciate them.
On the post: Taipei Orders Google & Apple To Offer 7-Day Free Trials Of All Apps Offered Via App Markets
Re: Re: Third party argument not persuasive
If sellers of consumer goods in the US were mandated to accept returns for seven days regardless of their fault, Best Buy would have to accept returns of the game for seven days regardless of whether it was at fault. Maybe that would be a bad law, but it would be silly for Best Buy to argue that it shouldn't have to comply because other parties could also offer a refund.
Presumably, Best Buy would have contractual rights to be reimbursed by the distributor in a case like that, just like Google/Apple can retain the right to hold the developers' money until the app clears the seven day period.
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