Re: So how would this magically rid us of bad patents?
Let me help you here
Unlike as Mike blithely answers, what you're missing is the likelihood that existing "bigger" companies could further game the system to run these cases through the courts and MORE QUICKLY shut down startups
Except The patent owner is likely to be the big company. If its a bad, broad patent, they don't want a reexam. and If they get the reexam and win, then the patent is likely valid. Techdirt has argued that one of the biggest root problems (not a symptom but a root problem) in patents is the assumption of validity that patents have when they are taken to court, in the face of evidence that 90% of patents are found to be partially invalid. This article discusses a solution to that problem that Mike wants to see. Isn't that what you have been asking him for?
...keep corporations small and hungry, not fat and lazy, through high tax rates....
Funny thing about taxes.....they are proportional. So a 70% corporate tax rate means Mom & Pop Co. loses 70% of its profits as well as Walmart. Which means Walmart is still 1000 times their size, M&P Co. is just that much smaller too.
The problem as I see it is that claims are so broad...
So you admit that patent filings are broken
...that only long review by a technical expert could distinguish, and that in practice it's left up to juries to decide who has the most convincing lawyers, or which the jury hates the least. It's a basically a crap-shoot.
You fail to understand how this process would work. Currently, you have to rely on Juries and Judges because it takes years before your review comes up and the trial is not put on hold. The new law places the trial on hold while a priority review takes place, in which technical experts can provide evidence of prior art and proof of obviousness in the industry. Tech experts and less lawyers. Thats what you want right?
So "If the competitor requests [an accelerated] review of the patent and" LOSES how is it better? There's still no judgment on technical merits. Again, you have no clue what a patent office review is, do you?
Outside of your obvious socialist leanings, which are inherently incompatible with private ownership and IP (A writer is just grifting off the hard work of bookbinders, editors, publishers, marketers, and bookstores, without whom their product wouldn't get to market), you have solid ideas about the need to provide increased taxation of corporations...because it encourages corporations to reinvest in their business to reduce their tax burden. Job growth and domestic economic growth have been tied to high corporate tax rates.
It does in many ways. Look at books. Ian Fleming (wrote James Bond) wasn't popular here in america until JFK (who started reading James Bond after meeting Flemming) told a reporter that the James bond books were his favorite. Suddenly its a national pastime and we have movies! If Fleming had never met JFK, if JFK didn't find him amusing, if JFK didn't like the books....James bond would not be a huge part of popular culture. Hitting it big and making money is a Contest in many ways. One which quality, consistent, compelling writing helps, but does not guarantee anything. Its a contest. A contest in which one author is liked by the right person that starts a chain reaction that causes a lot of people to read it.
Publishers are the 'buyers' in this scenario. They are valuing a work based on the perceived likelihood that the costs of publication will be overcome by the income when the book takes off. The creator is mitigating his risk over the cost of publication and marketing by selling to a publisher. he makes less profit overall, but has fewer sunk costs to concern himself with.
The same (in general terms) value/risk assessment goes into a contest as a publishing deal. Will this book/haiku get popular/chosen in a contest?
Now others might be more willing then me to explain at length the application of this analogy to the risk of purchasing a $10 e-book which can get 'unbought' at any time, or a $60 video game. But will just posit that I use a risk/reward concern when making these purchases.
Is it a perfect model? no. But given other suggestions in the market relating to overpricing (ebooks, video games, digital vs. analog pricing), it does lend weight to the arguement.
Re: Re: Re: Sometimes industry likes long copyrights without intending to make money off them
Point in case: GOG.com produces DRM free copies of older games for $2-$5. They go through the hassle of building emulation wrappers, they get the licencing, and I get a game that just works. Hell yes i buy from them!
People with that arguement make a major fallacy. There are two factors increasing the take in the G and PG markets. A) the very scarcity you are talking about. Low input into the market means more people go to see those movies as they have fewer choices for family friendly entertainment. B) An automatically larger consumer base. Assuming children are the targeted audience of most G and PG movies, you rarely get just the child, they get the parent as well. Groups are more common.
When you look at those factors G and PG films look to be the best films to make. However: If you flood the market with children's films you lose that scarcity. You also start to get the 'dilution' films, films which do well on paper but hurt a brand/studio in the future sales department. As anyone who looks at the size of children's books to young adult books to the size of 'adult' book sections in a bookstore will determine, books that are entertaining and appropriate to younger readers are harder. Many tropes used by authors writing for an adult audiance aren't appropriate or go over the young reader's head. Parents willingly go to Pixar films because of the quality and entertainment of a pixar film. But if that is no longer seen as true, pixar films may no longer remain 'must see' with new parents, and therefore new viewers. Disney hit this problem when they thought direct to video sequels was a gold mine. They undermined their name with a lot of the up-and-coming parents who were fans of the animated films, and work done by disney is often taken with a 'long arm' approach nowadays.
A good example of quantity over quality would be Cars 2 for Pixar. Cars 2 was the first Pixar film to get mostly bad ratings (kids love it, but unlike previous pixar films, adults didn't), and while it made money because of the market force Pixar has, if they continue the idea of 'we need to keep chugging out a film every year", they will sacrifice their goodwill with the adults who will be making the next batch of kids. Remember these are the cord cutters. Commercials are less and less a guaranteed way of getting a child to nag their parents into going to a film.
Once you start diluting the children's market, I imagine in 5 years you'll see someone ask why the market is mostly childrens films when its the R films grossing the most....
A) Copyright protection is at a very low ability for this carpet. see my post above on the four factor test. remember, profit motive does not eliminate far use B) they might not even own the design. C)its a pretty generic mosaic design even if they do. How is such an infinitely reproducible design generic?
While technically correct, you ignore some of the reasons this is angering, as well as several details commonly ignored to justify the 'use it or lose it' doctrine of Trademarks.
1) Establishing a licence to use a trademark also protects that trademark, and can be approached far more civilly. In this case the hobby production of a clothing fabric which doesn't directly conform to the specific layout of a carpet that the company doesn't even display on its homepage (so really hard to have a design trademark)? Screams for a more cautious hand.
2) Given the narrowness of trademark, infringement is often claimed where none exists. Common examples:
Using the name Coke or Coca-Cola when discussing the actual Coca-Cola product.
Using the brand and model name of a lamp when giving a bad review
Using the name of your competitor when making a factual comparison.
These are almost never infringing as trademark doesn't prevent the use of the word, only the use of the word in a manner designed or likely to confuse customers.
NO trademark concern here....as a carpet manufacturer is unlikely to have a clothing trdaemark, and more importantly, the trademark would already be considered generic. Its a basic mosaic pattern. I don't see any general mosaic pattern and associate it with a specific company. A similar mosaic design wouldn't make me think that Cortesan made the carpet....Because no one knows who the fuck they are.
Also, as Ive noted in the past, the use it or lose it doctrine is way overblown in the market. But in this case, the company's trademark would have been needed to be enforced in other way, ensuring people knew that this carpet was theirs (before infringement).
On the copyright side, general mosaics are easy to establish non-dirivative and/or fair use on. here it is quite clear that the fabric is in fact dirivative of the carpet, so Fair use must be our key. The original work can be considered factual, and despite him 'selling' the fabric, its a clear non-commercial use, as the distribution of fabric is a hobby, not a business. The fabric uses much of the actual design, but that is mitigated by the fact that, if it was unconnected to the carpet, the design is so highly transformative it is unlikely to be recognized. The shapes needed to be warbed and scaled to fit presepective. This design does not replace the need for a carpet with this design. It doesn't impact that market at all. This is highly indicative of Fair Use.
in an article where mike says that most of the rulings that went for the major music labels are correctly ruled as the law is grey and should be decided at trial, a major victory for those of you that claim he would never accept any form of copyright...you throw ad homs and fail to even address the article at all.
Re: You can't censor yourself! -- Everyone is free to criticize Robertson WITHOUT using CBN material.
I don't see any "fair use" argument made here
Then lets do an amateur 4 factor test here, see what I come up with. But first, how about a definition of the fair use doctrine from Cornel University: (emphisis mine)
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Given that you yourself admit you are talking about criticism (quote: "...critics have none.... it becomes clear that fair use is automatically a consideration. Its the first purpose that Cornell university cites as a possible fair use application.
Now, since you can't read into a statement and need a outright four factor test every time we claim fair use, here is one:
The first Factor is Transformative use (Purpose and Character of Use):
In this consideration the fact that, as you admit, the work is being distributed to highlight and comment on a small piece of a larger segment indicates the transformative nature of the use. In sharing this specific piece, it allows commentary and discussion and new information to focus on the area being criticized.
The second factor is the nature of the work:
Because the data being shared is Factual, namely this is an actual recording of actual opinions expressed by actual people, it is not a fictional work and therefore we the public have greater leeway for fair use (few creative elements are present for us to infringe)
The third factor is The Amount and Substantiality of the Portion Taken:
As highlighted in the Transformative test, the clips being shared narrow around the comments being discussed, with the necessary context. Not sharing this portion of the broadcast removes the 'proof' of what was said, and the proof that it wasn't a mistake of context.
The Effect of the Use Upon the Potential Market:
While an argument could be made that the criticism of the clip reduces the market for Pat Robertson, that is not what the test looks at. The test considers whether fulfills the demand for the original. This clip fulfills the need for the clip, but not the need for the show. It does not in any way replace the show it was taken from. It might harm the market, but so would a bad review. Copyright infringement cases are not determined on harm to the market, they are determined on the ability for the work in question to replace the original work.
While I am not a judge, nor a lawyer, I look at this work and see fair use, and therefore not infringement. Since you claim it is not, I ask you perform a four factor analysis and come to a different conclusion, so we can analyze it. I highly doubt a defense lawyer would look at such a clear case of journalistic commentary and criticism involving a real person making highly inflammatory commentary with no validation, source, or justification (that looks like hate speech), and not support a fair use claim.
Re: Re: Re: IsoHunt IMPLEMENTED the filter, so Mike blames MPAA!
OOTB, Computer Programmers and scientists will tell you there is no way to implement a filter such as described by the court that blocks determined people. for instance:
What am I searching for when I search the following terms:
- .... . / -.- .. -. --. -.. --- --
Give up yet? They are all easy to perform transcodes of The Kingdom, but not something most people think to censor. Filters are a race, where the filter trys to get ahead of the codes used to disguise the real term. like how you hid your computer porn stash by labeling the folder Econ Homework.
They will find that their filter works like every other filter on the planet, looking at search terms and comparing them to a blacklist. Maybe a few hueristic algorithims to try to teach it new terms as they emerge, but that is going to make things even worse on the genuine content blocking angle.
Last the the United States attempted to only collect money via 'voluntary exchange', it went bankrupt. It was called the Confederation, and its governing document were the 'Articles of Confederation'. It appears that when the states were told "We really need money to maintain the national defense and adjudicate interstate disputes", the States dropped trow and made like the scots in Braveheart.
As many people have stated, it is reasonable that some entities will not want to develop the product they have patented due to initial outlay (product manufacture is expensive business), or difficulty entering a new market (a patent on a new way of designing internal combustion engines that are 30% more efficient does not make you want to start a new Automobile company, and the company he licenses to already has the engine manufacturing equipment), or a desire to focus on a separate sector (Universities are unlikely to want to go into business just about anywhere other then education and research).
The problems are that Patent Assertion Entities have realized they don't have to hold to the normal niceties of handling patents, that PAEs realize the normal threats of counter attack don't apply, that the patent office is overworked/unable to keep up with the pace of innovation, that the patent granting system is incentivized in such a way that the patent examiners are pushed to grant even bad patents because otherwise they never 'close', and that the patent office doesn't understand many sectors allowing PAEs to get non-patentable patents or patents covering areas with prior art.
As I discussed recently, other traits involving HOW the PAE uses its patents are needed to rule one a patent troll. These include (and any troll may have any number of these traits): suing end users rather then actual infringers (or end users covered by patent exhaustion), suing over the same patent multiple times with different shell companies, asserting overly broad patents, suing many years after the clear initial infringement so they have a bigger pot (newegg/shopping cart), suing small companies which do not have the money to fight but not bigger fish who also infringing, and asserting patents covering obvious concepts or covering an otherwise solved problem "on a computer"
The first thing id like is a few citations of some numbers and assumptions you've made, without which you have undermined your own arguement: Please cite me a source (non-Ascap please, we want independent secondary sources) for your 50%/4% statistic (I do not have the detailed financials you would need to state that.) And then cite me a separate entity in the internet radio arena which has a significantly smaller payment disparity then the 10:1 that Pandora Has (7:1? 5:1?) And then show me where in Pandora's Financials you suggest they have more money to pay out in royalties, as by my read they are spending 8.92% more then they take in (source). If you can do all of that, then the following logical questions still apply:
You seem to ignore one key factor: the rates Pandora pays through ASCAP are HIGHER rates then any other source type. That means, given the level of play Pandora produces, that Pandora was already the single greatest income source to ASCAP.
Pandora had agreed to raise the rates it was paying. It wasn't until ASCAP withdrew its offer that Pandora began to attempt to find ways to protect itself and lower its rates.
If you blanket licence your music to a internet radio with a terrestrial arm for x, why would back out of the deal with pandora that gets you more (y), in the hopes that you could collect EVEN MORE (z)? The fact that the royalty rates are different depending on how you broadcast such that the larger the likely audience and the more plays you are likely to produce, the more you pay per play, is ass backwards, failing to make sense in any other market, doesn't suggest that ASCAP (and soundexchange) are abusing their monopoly powers is absurd and you want to give them more?
So rather then take the greatest windfall to songwriters since vinyl made the idea of being a songwriter financially possible, they want to jack up the rates to what, 50% of pandoras revenue? so pandora folds and is out? what sense does that make?
Please cite me a source for your 50%/4% statistic. And then And then show me where in Pandora's Financials you suggest
Given Apple's work to attempt to step in, If this fails, hopefully apple will start offering to financially support any developer who gets a letter. Its a long shot, but given apples massive scrooge mcduck vault, They could afford to hand their laywers over for a couple cases and write it off as neccesary legal fees to protect their product and reputation.
Nothing that (for instance) Universal Media signs in its contract with artist X, affects the PROs like ASCAP. The court has ruled that if it is in ASCAPs library, it must be part of the blanket licence. This ruling prevents the very clauses you are talking about. The only option is for a company to stop licensing through the PRO.
If Universal Media just stops licensing to ASCAP it has a completely different problem. PROs were established to reduce infringement and improve collection of royalties owed to artist and recording companies. Those problems all come back with te decision to withdraw. By only providing certain musicians (the new, up-and-coming talents that will be the next big thing) to licence their music individually, either the talents don't become hits, or infringement goes up. Neither of which is good for business.
Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:
While true that some have private security, and often they are vigorously protected, the kinds of companies OOTB and the NSA like to talk about spying on us tend not to. Moreover, fewer of them (id say none, legally, outside of government contractors who haven't delivered finished weapons yet, and again they aren't the ones were are talking about here) have the button for things like cruise missles. And a lot of the private security debacles are getting more and more scrutiny. So I think the intent of my statements, that we have a reason to more strongly fear a government that has failed to draw the line between employer and government, then from a corporation acting solely as your employer.
Re: EVER the corporatist, Mike has to slip in a poison pill:
The fun part of right to work and at will employment laws is they mean it is legal for a private employer to fire you for anything.
The problem is, when that employer is also the government, concerns about censorship become far more weighty. Because once they start firing people over speech, people get really worried the the FBCIATFTSPD (aka some sort of government police, FBI/CIA/ATF/TSA/PD) will start harassing them, shooting their dog and then themselves.
Corporations don't have private armies that can shoot you, with little note, for being 'belligerent'. And google, while possibly spying on me (and you've shown no evidence that they are actively attempting to profile me), also doesn't have a history of silencing people who argue that google is bad. I have known a few people who think google is 'too big', and used gmail to tell me about it. Who use android. And yet...no oppression.
Moreover, the 1st Amendment is not a law, its a right dictating what the government can or can't control. The rule is that amendments don't generate civil torts (the things you sue over). Thats why, despite the 14th amendment providing 'equal protection under the law' to all people, we require a host of anti-discrimination law. Because the 14th amendment did not extend to private citizenry.
Telling a corporation you can't fire someone who says X has two negative consequences: It abridges the right of free speech of the manager and owners who define the corporate image, and gives bad employees a way to prevent their firing. THe government also faces this problem, but we accept that in the public sector because of the enhanced scrutiny on the guys with the $50,000 cruise missles.
The public sector (aka government employment) has a set of rules that semi-clearly defines the bounderies of government and employer, to allow for resolutions of debates over firing. We had an article in the beginning of the month about it. No private emploer, from the mom and pop shop to Walmart, has to retain your however. If they don't like that you do Rocky Horror at midnight once a month, you can be fired. Doesn't matter why. You will likely get unemployment, cause its not 'with cause'. But you don't get to keep your job.
Re: So, very narrow risk so far only in Mike's FUD...
Point of order: Grammer, sentence structure, and your full chain of logic would be needed if I were to even begin to take that staement seriously. Without forknowlege of how you have previously responded, I wouldn't even be able to guess what you were trying to say.
Even guessing here I really dont see how commentary on the risk posed to researchers attempting to determine, A) how effective wifi encryption is, or B) how effective a new algorithm is at acquiring wireless signal, or C) any other legitimate, necessary research into security and/or innvoation in the wireless industry has "very little risk" because somehow it brings down google?