My guess is that F5's lawyers convinced F5 that they wouldn't win on the trademark suit, so they put that information in the complaint to make A10 show that A10 had a history of copying F5.
I'm not a big fan of putting a totally irrelevant accusation like that in a complaint, but it's a pretty common practice.
Let me lead off by saying that there's no question that this tweet does not infringe on the National's Copyright in their music, so the takedown notice was pretty clearly improper.
That being said, there's a red herring in the post. Even if a court decides that tweets aren't copyrightable, you could still infringe copyright with a tweet.
A simple example: If I were to publish the entire contents of the first Harry Potter book by tweeting it 140 characters at a time, I'd clearly be infringing copyright with the stream as a whole, but also with each individual tweet, which is just a direct copy of the work. This would be true even if we accepted that a tweet was a short phrase that couldn't be copyrighted.
This doesn't hold for all software patents. Consider something like PageRank. It's in no way transparent from using google how PageRank works, but a patent would disclose that.
Greg also makes a decent point, in that some things that may seem blidingly obvious in retrospect were novel and met a long-felt need at the time. While it may be obvious how it works, the quid pro quo is that you actually invented it and put it in the stream of commerce, as opposed to keeping it as a trade secret.
In the end, under current patent law, as long as the written description discloses the invention and enables someone holding ordinary skill in the art to practice the invention, the patent application won't be rejected because once you use it it's clear how it works.
The court below didn't actually make any findings. From the 9th Circuit opinion, "The district court ruled without explanation in favor of Costco . . . ."
Under existing law, the 9th Circuit was right. This is either something for SCOTUS to change, or Congress to fix.
The post is a little unclear about this, so I thought I'd clarify a bit. The short of it is that the Supreme Court hasn't decided whether or not to hear the case yet. You can read more at the link.
In a legal sense, hearsay is any out of court statement admitted to prove the truth of the matter. Here, a blog post is an out of court statement, and it would be admitted to prove the truth of the matter, that google doesn't use meta tags in its ranking.
That being said. It doesn't really matter. If google wants to get that in court they can just bring someone with first hand knowledge in to testify to that fact. It's just easier if someone doesn't have to give testimony.
Just in case someone calls me on this, the only way it would get in as an admission of a party opponent is if Jenzabar wants to bring the statement in. Google couldn't bring it in under that exception to the hearsay rule. They could try to argue that it was a business memorandum/record, but that's probably a bit of a stretch.
They registered their trademark for *everything* including electronics. If they had limited it to what they actually sell, food, they probably wouldn't be having this problem right now.
Blame them for trying to extend their IP rights further than they deserve.
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Not Unusual
My guess is that F5's lawyers convinced F5 that they wouldn't win on the trademark suit, so they put that information in the complaint to make A10 show that A10 had a history of copying F5.
I'm not a big fan of putting a totally irrelevant accusation like that in a complaint, but it's a pretty common practice.
A Interesting Red Herring
Let me lead off by saying that there's no question that this tweet does not infringe on the National's Copyright in their music, so the takedown notice was pretty clearly improper.
That being said, there's a red herring in the post. Even if a court decides that tweets aren't copyrightable, you could still infringe copyright with a tweet.
A simple example: If I were to publish the entire contents of the first Harry Potter book by tweeting it 140 characters at a time, I'd clearly be infringing copyright with the stream as a whole, but also with each individual tweet, which is just a direct copy of the work. This would be true even if we accepted that a tweet was a short phrase that couldn't be copyrighted.
Only Partiall True
This doesn't hold for all software patents. Consider something like PageRank. It's in no way transparent from using google how PageRank works, but a patent would disclose that.
Greg also makes a decent point, in that some things that may seem blidingly obvious in retrospect were novel and met a long-felt need at the time. While it may be obvious how it works, the quid pro quo is that you actually invented it and put it in the stream of commerce, as opposed to keeping it as a trade secret.
In the end, under current patent law, as long as the written description discloses the invention and enables someone holding ordinary skill in the art to practice the invention, the patent application won't be rejected because once you use it it's clear how it works.
Re: Re: Courts are constrained by law
The court below didn't actually make any findings. From the 9th Circuit opinion, "The district court ruled without explanation in favor of Costco . . . ."
Under existing law, the 9th Circuit was right. This is either something for SCOTUS to change, or Congress to fix.
Cert. is still pending
The post is a little unclear about this, so I thought I'd clarify a bit. The short of it is that the Supreme Court hasn't decided whether or not to hear the case yet. You can read more at the link.
It is hearsay
So, yeah. It is hearsay.
In a legal sense, hearsay is any out of court statement admitted to prove the truth of the matter. Here, a blog post is an out of court statement, and it would be admitted to prove the truth of the matter, that google doesn't use meta tags in its ranking.
That being said. It doesn't really matter. If google wants to get that in court they can just bring someone with first hand knowledge in to testify to that fact. It's just easier if someone doesn't have to give testimony.
Just in case someone calls me on this, the only way it would get in as an admission of a party opponent is if Jenzabar wants to bring the statement in. Google couldn't bring it in under that exception to the hearsay rule. They could try to argue that it was a business memorandum/record, but that's probably a bit of a stretch.
Woolworth Could Have Saved Themselves Some Trouble
They registered their trademark for *everything* including electronics. If they had limited it to what they actually sell, food, they probably wouldn't be having this problem right now.
Blame them for trying to extend their IP rights further than they deserve.