Re: Re: Re: Re: This kind of dodge by the courts...
Err sorry. I used "defendant", but that's not really the correct word. And really, it would impose a huge burden on both parties, it's just that at least the party appealing is choosing to impose that burden on themselves.
It's different because at least in the situation you describe, the defendant knows all the accusations they have to respond to right up front. They can do all the legal research, line up all the witnesses they think they need and do all the discovery at one time.
If new issues were allowed on appeal, that would mean the defendant would basically have to start from scratch: researching new legal issues, doing discovery AGAIN and lining up new (or possibly the same) witnesses. It would impose a huge burden on the defendant. It seems "just" to do it that way because this time around, you agree with the defendant and want to see them succeed. I'm sure the first time the government appealed a trial decision and brought up a bunch of new issues, and the poor defendant faced a huge legal bill having to basically re-litigate the whole thing, the people commenting on this story wouldn't be NEARLY so supportive.
But what's the alternative? Should I be able to sue someone, and then when I lose at trial, appeal it and say "Oh, my first arguments weren't successful so I've decided to try a bunch of different ones"?
In my last year of law school I took a seminar class on copyright law. (Seminar classes are kind of less structured classes where we all just sat around in a group and talked about interesting copyright law issues, and then at the end of the semester everyone had to write a paper).
I chose to write a paper on a similar topic to this post: how the increasing use of electronic resources was in some cases making it harder to get access to works, and how our generation would leave behind a less complete record than the generations before us, since all our cultural artifacts would be wrapped up in DRM.
There was a book I wanted to use to write my paper. My school didn't have it but another school had an electronic copy. I ran into exactly the issue described above: if it had been a paper copy, I could have got it through inter-library loan. But since it was an e-book, that wasn't allowed. Anytime I wanted to reference that book, I had to take a bus over to the other school, get one of the librarians to log me into a computer (since I wasn't a student at that school), and then copy any information I wanted from the book down by hand (the DRM on the book forbade printing or copy and pasting). The irony of the fact that I was trying to write a paper on THAT EXACT PROBLEM was not lost on me. (The upside was that I was able to use my own experience as a case study. )
I remember a study cited in my criminal law class where they tested law enforcement and court personnel from a variety of US agencies on their ability to detect lies based on body language and facial expression. So local law enforcement, state troopers, FBI agents, judges, etc. The only agency that demonstrated an above average ability to detect liars was the Secret Service.
I know that vague references to "a study" without identifying the study aren't trustworthy, so I'm going to try to dig the study up, as much for my own curiosity as anything else.
Forget the courts. This can be solved by Google. Phylis thinks the name "Schlafy" is more closely associated with her? The first item that comes back on a Google search for "Shlafy" is Schlafy Beer. Phylis is second.
It's cliche now to say that big content producers (movie studios, TV networks etc.) need to adapt to the new realities that the Internet has forced up on them. There are, occasionally, situations in which I don't think that general principle is apt and in which I feel a bit of sympathy for the content producers.
But if there is one thing that content producers need to accept as something that is completely true and completely out of their control, it's this: geographical restrictions of any kind are dead. People don't just talk about TV shows and movies around the water cooler in their offce anymore. The true fans, the superfans, the fans who will buy all your DVD box sets and t-shirts and posters and will go to the conventions, the fans that, as a content producer, you desperately want to attract, are online talking to other superfans in other countries. And if you think the superfans in Australia are going to wait six months to watch the episode that all their American friends online watched last night and are talking about, you're badly mistaken. If you don't make it available to them through legal channels, they will find other ways to get it.
And they don't care what the reasons for the delay are. They don't care that back in the 90s, you signed exclusive distribution deals with some Australian TV networks because that made sense at the time and those TV networks haven't got around to making the material available yet. They don't care that you have a marketing plan that depends on staggered releases. They don't care what your excuse is. All they know is that there is something out there that they want to watch, they're willing to pay you to watch it, and you're not giving them that option. So they're going to take the other option.
For those who don't read the actual judgment, part of this is due to the intervention of CIPPIC (www.cippic.ca). They're a Canadian legal clinic connected to the University of Ottawa law school who do some work similar to that done by the EFF in the US. They were granted intervenor status in this litigation and argued strongly and persuasively that the privacy rights of the TekSavvy subscribers had to be respected, and that the judge should be careful not to open the door to US style copyright trolling in Canada.
Beating a motion to dismiss doesn't necessarily mean the case has any merit. Judges are pretty reluctant to grant a motion to dismiss. Motions to dismiss are usually brought before any evidence has been presented to the judge. That means the judge has no way to assess whether the claims in the complaint are actually true. So they just assume they are. The question the judge asks themselves is "If everything the plaintiff said in their claim is true, does that add up to a case?"
So beating a motion to dismiss just means that plaintiff made the right allegations in their complaint. It doesn't mean they have a single shred of evidence to support their allegations. They might still get shredded at trial.
Re-reading the article, I may have misinterpreted "indvidual licensing" to mean "licenses obtained directly from the copyright holder". The article may have actually been referring to the act of licensing each act of copying individually, in which case, yes, Canadian universities ARE engaged in individual licensing. Whoops.
Most Canadian universities aren't actually going the individual licensing route. They still purchase their licenses from intermediaries... just not Access Copyright. This is because Access Copyright absolutely refuses to offer transactional licenses. You cannot purchase a license to make 30 copies of a chapter from a specific textbook from Access Copyright. They only offer one license: a huge, campus-wide license that covers all copying on campus and costs tens of thousands of dollars a year.
Compare this to a cable company. Most consumers already dislike channel bundling. Well AC is like a cable company that only offers one bundle: every single channel they offer. You either buy that or you buy nothing at all. Who would sign up for that?
As a bonus, the AC license also comes with onerous license terms that give AC the right to "audit" university records (including their computer systems) to make sure the university isn't making copies they aren't reporting, and completely eliminates the university's ability to exercise their fair dealing rights (it requires payment for ANY copies, even if they are very clearly fair dealing).
You know who doesn't do any of that shit? The US-based Copyright Clearance Centre. They will happily sell transactional licenses (via an easy-to-use online interface) and won't try to claim the right to snoop through through the university's records later on. Many Canadian universities are buying licenses through CCC. Universities also buy licenses to copy and distribute journal articles as part of their subscriptions to electronic journal databases.
Yes, the Supreme Court rulings on fair dealing hit AC hard, since it reduced the number of instances in which university's require a license. But their business model has a lot more problems than just that.
I am so so so so so sick of hearing that "CSEC's activities have been reviewed by an independent third party and have been found to be legal"
That's not exactly what the independent third party (the Commissioner of CSEC) said. The Commissioner's last annual report is available here. Flip over to page 20, where he discussed his "Review of certain foreign intelligence activities".
Background I examined CSEC’s acquisition, use and exchange of information relating to certain foreign intelligence activities that occurred a number of years ago.
Findings and recommendations I had no concern with respect to the majority of the CSEC activities reviewed. However, a small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to law. A number of CSEC records relating to these activities were unclear or incomplete. After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.
So no, the Commissioner did not say that everything CSEC has done was legal. What he said was that everything they did was legal, except for those things which maybe weren't legal and which they conveniently did not keep complete records on.
Now, admittedly that's not the most damning thing he could have said. He doesn't make it sound like there was any massive scandal. But it's still a lie to say that his report found CSEC always behaved lawfully.
That said, I'm confused about how copyright applied in the first place because copyright only applies to things that have been put into a tangible form. When I tell you something verbally, what I say is not copyrightable. It sounds like someone recorded a conference call. until that recording, the call was not in a tangible form (and once the recording is made, the copyright to it belongs to the person who made the recording.)
I thought about this as well. I'm assuming Bloomberg's lawyers are competent enough that they either would have raised this argument, or they dismissed it for good reasons. I haven't read the judgment yet (just about to), so maybe it will be addressed. Swatch probably had some sort of "script" for the call, so that might be the key to the puzzle.
Of course, I realize re-reading my comment that open sourcing code doesn't just mean opening the code up to others but also granting them a license to use it. So of course, if you had hoped to license out the inventions contained in your code, that's problematic.
Embarrassing to have missed that, but I'm happy that the first place my brain went wasn't "But how will this affect my ability to sue people?"
Open source means giving up a lot of their ability to direct development, and does not work well with the use of patents.
I don't understand your argument with respect to patents. To get a patent you're supposed to fully reveal all the information necessary to implement the invention in the patent application. An open source implementation of a patented invention shouldn't be revealing anything new - all that information should have been in the application anyway.
I suppose if you open sourced your code and it contained inventions that you later decided to patent, that could be problematic. But that doesn't mean code can't be open sourced, it just means you need to get your patent applications in first.
Open sourcing code (and adopting open access policies for publications) can have some beneficial effects when it comes to patents. It can be a useful way to protect your inventions that you don't feel like patenting but you don't want anyone else patenting either. It opens up the argument that any potential inventions contained in the code or in the journal are now known to the public. This makes it easier to cry "prior art!" if some other party tries to get a patent on the same thing (or if they do slip the patent by the USPTO, it makes it easier for you to defend against an infringement lawsuit).
Bell Labs hasn't been publishing their Technical Journal all these years just to show off how smart they are.
I remember when I was studying quantum computation at university a decade ago, the most advanced quantum computer that actually existed at the time was able to factor 15 into it's prime factors. According to Wikipedia, the current record is 21. That is a long, long way from posing a threat to the encryption currently used on the web.
I think we have a ways to go before quantum computers are really useful to the NSA.
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