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California Legislation Affirms Privacy Rights Against NSA Spying Methods

werdna This can't be about the Fourth Amendment... (96 comments)

The Fourth Amendment only applies to the Federal government, and no state statute can reduce or increase those rights. Of course, the state itself may be limited by the Fourth (through the Fourteenth), and in that case, no state statute can reduce those rights. California may try to pass laws that provide additional protection not governed by the Fourth, provided it does not violate the Supremacy clause, and that's fine, but its unlikely to limit federal activities expressly provided for by federal statute.

There is no real dispute over the right to wiretap without a warrant (although some claim to the contrary, its not the Federal government doing the claiming), at least not since the Bush administration got into hot water over that issue.

As to the applicability of the Fourth to metadata acquisition, the Supreme Court addressed that point more than thirty years ago in Smith v. Maryland. Cases claiming that Smith is somehow inapplicable to the NSA issues are working their way through the courts, and time will tell. But it is still a legal reach to assert
that metadata acquisition somehow violates the Fourth Amendment, without qualification, given the clear Supreme Court law on the subject.

about 8 months ago

Court: Oracle Entitled To Copyright Protection Over Some Parts of Java

werdna This is a radical decision (303 comments)

The question whether copyright existed to protect the "look and feel" of an application was open until the Supreme Court affirmed (4-4 en banc without opinion) the First Circuit decision in Lotus v. Borland. That case took decades to litigate, but addressed whether Borland was permitted in Quattro to execute Lotus 1-2-3 macros (the damned "/" tree of letter commands), even though the macro language was not aptentable. The mere "embodiment" of the "/" tree was deemed by Lotus to be protectible copyright. (In my view, Kapor should have been made a pariah for this assertion, but hey, its just me.)

The First Circuit held that when expression (if you can call the letter tree expression) equates to funtionality, it has merged with the unprotectible functionality. That has been the basis of almost all Copyright law since that time regarding reverse engineering and competition in the software industry. Any other rule would yield considerable chill to adopting new technologies, and in implementing imrpovements. The Internet itself might not have evolved as it did.

The most significant example was the Phoenix BIOS, a reverse-engineered implementation of the BIOS for the IBM PC that made clones possible. Under the Federal Circuit rule in Oracle, the Phoenix (and its progeny) would have been infringing, and we would live in a very different world than we do today.

I am cautiously optimistic that the Federal Circuit will take this matter up en banc and reverse, or perhaps SCOTUS will set it right. Until then, the conflict between Oracle and Borland cases will create a chilling uncertainty in the industry that will educate my granchildren's education, but serve little other good purpose.

In my view, an API merges with its functionality and should be unprotectable. That was the law everywhere in the United States, until today.

about 8 months ago

Will Write Code, Won't Sign NDA

werdna Unimpressive (438 comments)

I'd be unimpressed with the business acumen of both the entrepreneur and the programmer. An entrepreneur who relates confidential information without an NDA has created difficulties at the very outset of his enterprise, which may or may not be costly later. (Consider the nonsense of the Facebook litigations.) A programmer who refuses work because he won't sign an agreement that merely binds him to refrain from doing something he would never want to do anyway, has refused work for no reason at all.

Of course, an overreaching and overbearing NDA is unsignable, and of course one with other provisions (noncompetes, etc.) raise different issues. But a routine NDA should be a non-problem for an honest programmer who doesn't intend to steal anything. And the failure to sign, at least for me, is a big red flag that another programmer would be a better solution.

Get over yourself. Most of us are fungible. No reason, other than inexperience, naiveté or reserving the right to cheat can be given to refuse, all of which make the programmer unsuitable for the task. As far as the moralistic argument about starting the relationship on the wrong foot, welcome to the twenty-first century, refusal to sign an NDA is precisely that, starting the relationship on the wrong foot -- it assures suspicion. And don't think refusal to sign puts you at a legal advantage, there are plenty of common-law and statutory ways to reach someone who has misappropriated, PARTICULARLY if it is explained to the judge that the refusal to sign was simply for some moralistic, idealistic handshakey kind of deal.

Tl;dr -> Refusing on that basis is a silly idea. Don't be silly.

more than 2 years ago

Wikipedia Wants More Contributions From Academics

werdna Two words... (385 comments)

Two words: Peer Review. The Wikipedia editorial process is not thought well of because the content is not edited by experts, and no feedback or improvement of hte process occurs. This is why the content is ever suspect, and the cred for those who write it is not enhanced by doing so.

more than 3 years ago

RIAA Lobbyist Becomes Federal Judge, Rules On File-Sharing Cases

werdna Re:Obama nominee, of course (333 comments)

Too bad I had to post anon due to predictable mod abuse, because I am serious about this topic, not trolling.

All evidence to the contrary. The issue at point obviously transcends party boundaries. When Orin Hatch chaired Senate Judiciary subcommittee on intellectual property in the 90s, it was the Republicans who led the RIAA charge against Grokster, and it was Leahy who shut down the Inducement of Copyright Act after a massive lobbying effort by public interest groups. The EFF, which could never be considered a conservative think-tank, has taken the front line in shutting down overreaching Copyright abuse.

So, it would appear that the bold-faced (and somewhat bald-faced) effort to turn this into an anti-Obama issue is, in fact, just another troll

more than 3 years ago

i4i Says OpenOffice Does Not Infringe Like MS Word

werdna Microsoft Patent No Defense to i4i (146 comments)

It has been suggested in various writings that the newly issued Microsoft patent on an XML-based document would somehow resolve Microsoft's woes against i4i. This is most unlikely. A patent grants only rights to exclude others from practicing a claimed invention, and creates no right at all to practice the claimed invention. It is quite possible to obtain a patent governing a novel and unobvious variation of an existing patented technology. While the second patent would grant its owner the right to exclude people (including the first patent owner) from practicing the variation, it would grant no right to practice the variation if the variation also infringed the first patent.

Of course, it may be the case that the first company may want to practice the variation as well, in which case a cross-licensing deal might be worked out. But the issuing of a new patent on related technology does not, itself, help Microsoft out of its box unless the new technology does not infringe the i4i patent.

more than 5 years ago

USPTO Increases Scope Of Amazon's 1-Click Patent

werdna This gets so very old... (98 comments)

This is really pretty easy stuff guys. The examiner searches for prior art, and if he finds it, or an obvious combination of it, badda-bing, lovely rejection. If not, he is bound by statute to allow the patent, period. 35 USC s. 102 ("A person shall be entitled to a patent unless" there exists invalidating art). We all know you hate the law and the standards, but give this poor examiner a break, will you? He HAS to allow the patent UNLESS he comes up with a case to reject it. He HAS to do it. He HAS to. Suggesting bad faith or corruption as the cause of the examiner's allowance is obnoxious and naive.

The examiner did his research, and gave it his best shot. By amendment and argument, Amazon shot down his case. Nobody came to the rescue with any new art, and the examiner didn't find any. Indeed, despite the FAMOUSNESS of this battle, NOBODY has come up with any art to defeat the new claims or the old ones.

There are better battles to pitch than this one.

more than 7 years ago


werdna hasn't submitted any stories.



werdna werdna writes  |  more than 10 years ago

The Ninth Circuit Court of Appeal has spoken again in the Saga of Cohen, Kremen and the sex.com domain name. In this new opinion, the Ninth Circuit socks it to NSI, stating that they are amenable to suit for conversion of the domain name "sex.com" as a result of their acceptance of an on-its-face incredible forged letter transferring the domain name to now-fugitive Cohen. This one may make a big difference, and lead to fundamental change in NSI's seemingly aloof atitude toward domain name transfers.

Those of you who usually ignore judicial opinions should read this one. After all, how can any document that begins, "'Sex on the Internet," they all said, 'how can that make any money?'" not be worth a skim? Written by Judge Alex Kozinski, it is amusing, intelligent, at times galling but always great reading.

Judge Kozinski is one of our national treasures, writing "cut-to-the-chase" opinions that are at once insightful, humerous and yet dead-nuts serious. Examples of his fun stuff include this infamous party-game opinion in U.S. v. Syufy. In Syufy, Judge Kozinski ruled on an otherwise dull antitrust issue involving a chain of movie theatres, while burying hundreds of film titles in the text proper. An answer key is available on line.

He also wrote the opinion in the Dreamwerks trademark case, in which he dealt with a lawsuit by an oufit that ran Star Trek conventions against the film studio. In an amusing opinion, in which he expressly "perform[ed] a Vulcan mind meld on the 'reasonably prudent consumer,'" Judge K wrote a clear, comprehensible opinion as to fundamental aspects of trademark infringement.

Slashdotters interested in the philosophy of intellectual property issues will have their minds tweaked by the insightful dissent in the Vanna White case, finding that Vanna could sue Samsung for running a commercial in which a robot wearing a gown turned letters. Again, Kozinski disarms you with his first sentence, "Robots again."

Judge K's sex.com opinion is no different. In this case, he takes on subtle questions such as "what is the legal relationship between NSI and registrants," "whether a domain name is property," and whether the distributed DNS database is a document that tangibly represents the interest that is the domain name." Amusingly, in the last Sex.com opinion, Judge Kozinski wrote both the majority opinion and a dissent.

The humor in his opinions reflect his loving craftsmanship, and not a lack of seriousness. Judge K's politics are a mile away from mine, yet I have always felt comfortable when he adjudicates hard issues: he is a true jurist. He learns about his subject, writes well about it and comes up with results that, right or wrong, left you feeling he genuinely ached in his efforts to get it right.

Why can't someone appoint this guy to the Supreme Court?

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