It's simple. You have a contract that says you will not use any software in any way that Microsoft does not like ever again. You promised not to use software to criticize copyright policy and didn't do it and didn't use a browser log to track all of your activity on the internet.
It is not simple. To the degree his contract is intended to set up a stream to pay him for future uses of his likeness, it is a licensing agreement. Although practically speaking this happens all the time, jurisprudentially it is suspect - the "right of publicity" is not a right at all, it is a (common law most places, statutory in California) tort. In general, it is difficult or impossible to release future torts. Contracts to do so are ineffective. This is a consumer protection mechanism - if you could release future torts, every company would include in its shrinkwrap license a clause that releases it from any product liability. If Best did not actually release anything (because his release is not effective,) there is no consideration for the license royalty. The contract is unenforceable and the studio was right not to pay.
I am not saying that is going on here - I have not taken the time to read the contract or even Best's claims, other than as reported by Mike. But there is an important question here as to the reason the backend was included. If it was to compensate him for the use of his likeness, it is icky. If it was to compensate him for his contribution to the popularity of the show, it is less icky. If the latter, it might have been cleaner to have created a company for this purpose and given Best 2.5% of the company.
Okay, but (whether OP was trolling or no,) there is an underlying point here. Who cares that his face is plastered all over? Why should he have any right to collect for that? I know he had a contract to that effect, but why the expectation that he would participate in the backend?
The best answer I can come up with is that the merch is selling because of the show's popularity, and his efforts increased the show's popularity. In other words, the payout is not for the use of his likeness, but completes the compensation for his acting services. I hope any legal action, and the contract, are phrased that way and there is no tie between the compensation and the use of his likeness.
I honestly, deep down, do not care how the politician came to the point of presenting me with an inaccurate statistic that just so happens to permit him to vilify his opponent and assume a moral high ground in a battle of childishly entrenched positions, neither of which I agree with. He gets paid more than me and has power over my every day life because he claims he will get things right. When he fails to, it is a Big Big Deal(tm). I blame Hoyer and Reid personally for getting this wrong, especially if they were simply parroting something they had been told by staff members who got the numbers from someone who got the numbers from someone who forgot to include the qualifier.
Publicity rights have got to go. They are stupid, and the source of much ridiculous law. A reasonably compelling argument could be made that they are unconstitutional - they clearly violate the First Amendment, they serve no compelling state interest, and there is no (even arguably) valid basis for them in the language of the Constitution (copyrights at least have an arguably valid basis). In any event, as a society we should be fighting as hard as possible against the perception that fame is a path to success rather than a result of it.
But, notwithstanding that they are not much help, they are the law of the land. And there is not yet a recognized defense of entrapment for torts. Hebrew University was within its rights, if not exactly classy, in what it did.
This is not quite fair. First off, there is nothing out-of-context about publishing a screenshot of an entire email. This is not like a journalist taking one sentence from a larger quote and publishing only the sentence. Google has not denied that it was offered participation in a bid for the Novell patents and declined.
And take apart what Google is saying in response. "A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners." What "attacks"? He can only mean "competition". Having an ownership interest in, and license to use, the patented technology certainly would have provided a perfect defense for Android against any patent litigation attacks.
We have a policy in the US that the courts should be open to everyone. This is a stupid policy. As good as it makes folks feel to say otherwise, the fact is that most lawsuits are little more than legalized extortion. The threat of them moreso. They cost too much to defend, so people settle rather than doing so.
To counteract this, we need a wave of judicial reform. First and foremost, we need to put more teeth into Rule 11 (the rule that provides that attorneys who sign pleadings that lack a good faith factual basis and legal foundation may themselves be sanctioned). It is seldom enforced, and not because pleadings are so well-founded.
Next, Rules 12 and 56 need to be implemented with some intellectual honesty. Complaints that are so implausible as to sound like fantasy should be dismissed immediately absent compelling evidence. The SCOTUS took a step in the right direction with Twombly and its progeny, but the lower courts have not yet pushed their newly reemphasized authority far enough.
Finally, plaintiffs should be made to post a bond equal to the likely defense cost of the case, and forfeit it if they lose. This probably will not result in denying access - even the very poor will likely be able to post the bond, provided they can convince an attorney or an insurer that their case is merited. But ridiculous plaintiffs will not be able to fund these sorts of serial lawsuits. (Note that sanctions alone will not ever do the trick - many strategic lawsuits are filed by impecunious "judgment-proof" plaintiffs.)
Here, however, there may be additional protection. Mr. Wolk is a member of the Pennsylvania bar. As such, he is sworn to follow its rules of professional conduct. That includes an obligation not to file unmeritorious claims, lie in communications to non-clients, say anything that he knows or should know will be publicized and could affect the outcome of litigation, make false claims about judges, request a party other than his client to refrain from giving information about a cause, etc. Rule 3.1 has been interpreted to mean that a lawyer may not threaten legal action. To all appearances, Mr. Wolk is an effective and experienced litigator, and I am sure that he knows and has internalized his professional obligations. But it looks to me like he is warming right up to the line with these throw-down challenges.
That alone doesn't, you're right. We have "facebook" as a generic descriptor for any book provided to a group with pictures and text describing members of the group. That does not mean that it is generic for identifying the source or origin of a website.
But here, the website is an online facebook. The mark was at least descriptive, if not generic, as applied to the website. In order to register it, they needed to demonstrate secondary meaning - and at least arguably they did not have it, yet, at the time of the registration (certainly do now!). The registrar could conclude that the trademark was improvidently granted at the time.
Net effect - zilch. Even if the registrar agreed that the mark was descriptive and without secondary meaning at the time of original registration, it probably has since acquired secondary meaning.
The bottom line, in my view, is that the equitable arguments will not work. The best argument here is no likelihood of confusion, which should prevail.
Close. Patents protect inventions, whether or not they are ever implemented. There must be an invention (not just a bare idea,) but it need not ever actually be implemented, even in prototype, provided you can demonstrate that it is novel and non-obvious, and that it can be done by someone sufficiently skilled in the art without further invention. Far and away the best way to demonstrate this last is to implement it.
Few patents are actually implemented in the marketplace. The inventor may try and fail, or may never be able to actually get any production financed, or both inventor and the PTO may be wrong about the patentability of the invention.
Copyrights protect expressions. In the case of written expression, like the code, they protect that code and can often be stretched to cover other, substantially similar code. Modern copyrights also protect the expression from derivative works - works based even loosely on the protected expression. The expression may not live only in the code - it may also live in the "look and feel" of the software. It does not live in the functional elements, although companies have found success convincing courts to read that protection into the copyright law.
In the US, patents can protect novel, nonobvious business methods. That can allow the patents to protect ways of doing things. Also, a patent can protect a tablet computer with particular functionality, including the functionality to interpret particular signals or responds to particular inputs in a particular way. Patent maximalists would likely argue that such a patent is no different from a patent protecting a mousetrap that responds to tugs on the bait tray as a signal to close the trap.
I doubt Cochran will be filing anything. Look it up.
The "Italian-American" thing bothers me. Stick to gangster stereotypes, instead of ethnic ones. I know it was funny in your head, but there are some who are rightly sensitive to being lumped in with criminals and their supporters just because of where their parents were born.
In fairness, while COPPA may be a crappy law, the problem really is Google's (and many other sites') handling of it. Rather than simply categorically excluding young children, what these sites should do is not collect sensitive information. You do not need someone's real name to provide them with an email account, for instance.
If the information is absolutely necessary (Zuckerberg has argued that the value of Facebook is that it creates networks of real people, who can really identify each other,) then all that is necessary is a COPPA approval from the child's parent, and Congress was forward thinking enough to permit those to be submitted by fax.
We do this in Alaska. It does not work as advertised for several reasons.
First, impecunious plaintiffs (and defendants) will not be made to pay because you cannot bleed a stone. So fee-shifting rules do not discourage the very poor from filing.
Second, filthy-stinking rich plaintiffs (and defendants) do not care that they will be made to pay, because they typically value that amount of money less than they value winning the lawsuit (either because the suit is inevitably worth more, or because the outcome of the suit will effect their ability to operate in the manner they like). If you sue Disney for simple copyright infringement of a single work and fight it tooth and nail, you will likely spend around $2mm or less, potentially substantially less. The potential verdict could be two or more orders of magnitude higher. The value to Disney of grinding you down or winning outright is well worth the risk of having to pay $2mm. Likewise the other direction - if Disney can protect a $1b property by suing an upstart and spending a ton of money, it is well worth the risk of having to pay The Little Guy's paltry legal bill. Attorney fee awards do little to discourage frivolous lawsuits by the very wealthy.
Take those two together, and you have a relatively small sector of the economy that is actually affected by fee-shifts (at least in terms of their willingness to file frivolous actions). Where it has a much bigger effect is in determining the value of a settlement. And there, it has a _very_ big effect.
Of course, fee shifting has other effects (all positive, in my view). Most importantly, they make the person who turned out to have been wrong bear the expense of litigation, if they have the ability to do so. In my opinion, the fee-shifting provisions should be expanded so that litigants must post a bond sufficient to cover the other side's anticipated reasonable legal bills in order appear. In addition, defendants who are successful in a case should be awarded some portion, say 20%, of the damages claimed by the plaintiff in the complaint, and plaintiffs should be limited to an award no larger than what appears in their complaint. Such a bonding requirement would virtually eliminate frivolous lawsuits except by the very wealthy, but should not deter cases that appear strong because plaintiff's lawyers and litigation bonding companies should be willing to put up bond for such cases. The requirement would only pinch the tough cases in the middle that look 50/50.
There is a substantial benefit in many cases to being the plaintiff. That is one big reason that declaratory judgment exists - so that a party who believes it will get sued by another if it acts in some way can get a prior determination from the Court that it has done nothing wrong before the other side can file.
I agree with you - while Mike is right that litigation in the US has become stupid and encourages frivolous lawsuits because they may get rewarded regardless of merit, the problem in the particular example he gives is not that the little guy is sue-happy, but rather that the underlying substantive law of copyright is ridiculous. Put differently, that lawsuit is not frivolous because the law is broken.
Still a public performance. That it comes from the radio doesn't matter.
Actually, that it comes from the radio should (but does not) immunize. The radio station has already paid to publicly perform the music. The mechanism for doing so is to translate the music into FM (creating a licensed, legal derivative work) and broadcast it. The truck driver then takes this derivative work, translates it (creating a new, licensed, legal derivative work) and publishes it. Either the original license to publish (to the radio station,) or the truck driver's license to himself to publish his derivative work should govern, _NOT_ the license of the original music publisher. But for whatever reason, that is not the way the law is implemented (notwithstanding what it says).
If I were the IT department at your university, I would turn off your ResNet port until you agreed to comply with the appropriate school policies. I assume something similar would be done if you, for instance, demanded the right to use the chemistry lab YOU PAID FOR to cook up meth. Of course the university may make and enforce policies to better accomplish their mission, including restricting how you use the resources they permit you to access. Your tuition does not buy you the right to violate the policies.
As for your tuition, it very likely covers less than half the cost of your education. You did not pay for the internet connection, you paid an access fee to get access to resources that the school's alumni- or state-funded endowment paid for.
In a few years, you will grow out of that sense of entitlement, or you will join the **AA as a senior executive.
Zondervan continues to restrict distribution of certain versions of the Bible (NIV, for instance,) by strict application of copyright law. I do not pretend to know whether they have prayed over that particular tactic, but they have certainly taken the position from time to time that controlling distribution and derivative works has allowed them to keep the translation from being corrupted.
Incidentally, I do not mean to suggest that Zondervan has misused copyright, or that if there must be copyright laws that this is a bad application of them.
Prosecution does. But we aren't talking about prosecutions, we're talking about plaintiffs. In a civil action, the evidentiary burden is merely to prove your side of the case by a preponderance of the evidence. That means "more or better evidence than the other guy". It is entirely subjective - the only objective requirement is that you propound _some_ evidence of every element of the claim, and your own (self-serving, manufactured for trial) testimony is some evidence.
In other words, in a civil case all a plaintiff need do is testify that they believe (perhaps based on information given to them by the university about the user of a particular IP) that the student infringed their copyright to their detriment. Then the student has to put on some evidence that he didn't (could be just as crappy as the plaintiff's). Then the decider of fact (say, a jury) gets to choose whose evidence was better.