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Microsoft, DRM, David Boies, and the US Constitution
Wednesday, July 07 2004 @ 02:22 AM EDT

Well, fans of DRM, you can now buy, for $2.99, Microsoft's proprietary version of the US Constitution for your PocketPCs. The download page says you can't print it. Further down, it says you can make two copies a year. LWN has the story. [sub req] Larry Lessig's blog reported it last month.

Or, you can get the US Constitution for free online, thanks to the FOSS community, who made the Internet for you. Larry Lessig points you to a free version for the iPod. They do ask for your email, so spam may be expected. And I don't think it's necessary to get a special iPod version, because iPods can read any text file. You can also get it from Project Gutenberg in plain text, or formatted for your PocketPC or your Palm. If you need a different format, try PG's file recode service. I can't resist pointing out that Project Gutenberg is also hosted by ibiblio.

What do you get for your money?

"This is the complete Constitution of the United States, The Bill of Rights, and the rest of the 27 ammendments [sic], all in easy to read format. This document is printable in Adobe Reader. Please Note: This book is easy to read in true text, not scanned images that can sometimes be difficult to decipher. The Microsoft eBook has a contents page linked to the chapter headings for easy navigation. The Adobe eBook has bookmarks at chapter headings and is printable up to two full copies per year. Both versions are text searchable."

It's for sale on Amazon, where one reader points out that at that rate, it would take 7 years to reach all the colonies. Of course, that'd be one copy per colony, so all the folks in each colony would have to share the one copy. Oh, my. Sharing.

Of course, it's ridiculous and it reminds me of the flap about Alice in Wonderland a while back, which had a note that you couldn't print it or lend it or give it to anyone or read it aloud. Adobe quickly clarified that they meant the computer couldn't read it. You moms and dads could.

What about laws? Can they ever be copyrighted and made proprietary? Yes, and no.

"Both Westlaw and Lexis fold copyright materials into larger databases that are devoted to patent and trademark law," it says on Georgetown University's page about researching copyright law. Here's Westlaw's copyright notice on a popup page from the copyright link at the bottom of the page:

"Copyright (c) 2004 by West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person's official duties. All Rights Reserved. Except for the licenses granted herein, all right, title and interest in The West Education Network and lawschool.westlaw.com and The West Education Network DATA (including all copyrights therein) and lawschool.westlaw.com DATA (including all copyrights therein) are and shall continue to be the exclusive property of West, Dow Jones or other licensors or contributors."

Lexis puts it more threateningly:

"Materials available in this Web site are protected by copyright law. Copyright © 2004 the LexisNexis Group of companies. . . . .No part of the materials including graphics or logos, available in this Web site may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, without specific permission (to request permission to use materials, continue to our Permission Request Form). Distribution for commercial purposes is prohibited."

Their detailed popup page says a bit more. You can't show any of their materials to more than one person at a time, for example. How they police that is a mystery:

"STATEMENT REGARDING COPYING, DOWNLOADING AND DISTRIBUTION OF MATERIALS FROM THE LEXISNEXIS™ SERVICES

"LexisNexis, a division of Reed Elsevier Inc. ('LN') receives many questions concerning what copying, downloading and distribution of materials available in the LexisNexis services (the 'Online Services') is permitted by our subscription agreement. Some of the most common questions are addressed below.

"Photocopying

"A subscriber may photocopy LexisNexis printouts and distribute those copies to the extent permitted under the "fair use" provisions of the Copyright Act of 1976 (17 U.S.C. §107).

"Downloading

"With respect to court cases, court rules, court briefs, agency-issued documents, agency regulations or executive branch materials from the United States, its states or territories ('Authorized Legal Materials'), individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form, primarily for one person’s exclusive use, a single copy of insubstantial portions of Authorized Legal Materials included in any individual file to the extent such storage is not further limited or prohibited by the Supplemental Terms for Specific Materials.

"With respect to United States patents ('Authorized Patent Materials'), individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form, primarily for one person’s exclusive use, a single copy of no more than 200 patents at any one time.

"With respect to all other materials other than Authorized Legal Materials and Authorized Patent Materials, individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form for no more than ninety (90) days, primarily for one person’s exclusive use, a single copy of insubstantial portions of materials included in any individual file to the extent the storage of such materials is not further limited or prohibited by the Supplemental Terms for Specific Materials.

"Downloaded materials may be printed out, copied, and distributed to the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms for specific materials, but may not otherwise be reproduced or distributed. Materials downloaded and stored in machine-readable form may not be displayed electronically to more than one user at a time.

"'Fair Use'

"The "fair use" provisions of the Copyright Act provide that several factors must be considered when determining whether the use made of a work in any particular case is a "fair use". These factors include whether the use is of a commercial or non-profit nature, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market for or value of the work.

"Whether a particular use is permitted under the "fair use" provisions of copyright law depends on the facts and circumstances of the particular use. An evaluation of these facts and circumstances, the factors referred to above and court cases interpreting applicable copyright laws may all be necessary to determine whether the reproduction or distribution of materials published in printed form (books, magazines, newspapers, newsletters, etc.) is permissible.

"LN will not give legal advice to subscribers as to whether a particular type of use constitutes 'fair use'."

Now you know, having read the above, why I never link to Westlaw or LexisNexis and link only to cases that are freely available. Westlaw lets law students have access to their service, but they limit how many cases a student may print a year.

How can they do this, you are asking? Aren't the laws public domain? The laws are, but that's not all you get from Lexis or Westlaw. Then there is the issue of their terms and conditions, which you must agree to or you can't access the site.

Naturally, there has been a case about this, actually two, but with just one company, Jurisline, losing both. David Boies was the attorney for Jurisline, along with Robert Silver, now on the SCO case also, which unsuccessfully argued that copyright law trumped state laws regarding contracts. Small world, isn't it?

Jurisline set up a web site, offering free cases. The site had advertising. Jurisline used both Lexis and West Publishing materials to develop the site, claiming under copyright law it had the right. Here's what it offered in 2000:

"Jurisline.com has created a stunning new Web-based resource for legal research. The service is in final public beta testing now, but already provides a single integrated and intuitive search engine interface to an impressive array of legal data. It is well on its way to providing comprehensive federal and state case law, and it has made a start on statutory law."

Sounds fabulous, doesn't it? Just the thing the world needs. "Jurisline is the first company to provide free access to a fully searchable and comprehensive database of public domain legal research materials," said Ken Chow, a partner with Jurisline. "Previously, these materials have been available only through subscriptions to costly services, preventing most people from having any access to online legal research."

Of course, Lexis didn't agree this was so wonderful. It was Jurisline that sued Lexis, not the other way around, seeking a declaratory judgment that "Reed Elsevier's 'Lexis' divisions do not hold any protectible copyright in the official text of the judicial opinions and statutes contained on Lexis's Law on Disc™ products, and that federal copyright law preempts certain provisions of Lexis's license agreements purporting to restrict Jurisline's ability to publish these public domain materials." They put out a press release saying that the suit was to "establish rights to public domain material".

Here is a bit more on their theory of the case:

"Jurisline.com is adding coverage and backfiles of state and federal court opinions at a rapid pace. Where do they get the data? In part from the Lexis Law On Disc CD-ROMs. Jurisline.com used the core text from the LEXIS CD-ROMs after removing all editorial enhancements made by LEXIS, other than de minimus and non-creative enhancements such as attorney and date information. Lee Eichen and Kendrick Chow both openly acknowledged that to me, and the company also acknowledges this in a lawsuit it has filed against Reed Elsevier, Inc. (http://www.reed-elsevier.com) on December 8, 1999."

In the lawsuit, Jurisline claimed that the core data it used was in the public domain and had been created by the government, paid for by taxes. It asked the court to find that there was no protectible copyright. It also claimed that Lexis and West had used monopoly power to artificially restrict supply in that market and that Lexis had artificially jacked up the prices. Jurisline claimed that its use of the data was proper under federal copyright law, which it said preempted the state law of licenses prohibiting their use of the data.

Jurisline no doubt thought they had a shot because of another case, Matthew Bender and Hyperlaw v. Westlaw [S.D.N.Y., May 19, 1997]. That case said that once something is in the public domain, it's always in the public domain, and that you can't copyright facts:

"This action raises the question of the extent of the copyright protection available to West Publishing Company with respect to the opinions of the United States Supreme Court and the Circuit Courts of Appeals that it publishes in the Supreme Court Reporter and the Federal Reporter Series.

"There is no question that West invests substantial time in reviewing each opinion, checking the citations, adding parallel citations, modifying the caption to conform to its style and adding information concerning the attorneys involved and subsequent history of the case. The issue presented here is whether the changes West makes to an opinion, either singly or in combination, represent a sufficient creative effort to warrant copyright protection.

"BACKGROUND

"In this case the plaintiff, HyperLaw, Inc., is the publisher of CD?ROM products, one of which contains recent Supreme Court cases, and the other, recent Circuit Court of Appeals cases. Although HyperLaw obtains the text of most of the current cases from sources other than West, in a small percentage of cases it scans the title, texts and certain other information directly from the West reports. It does not, however, scan the headnotes that West adds to its reports or the key numbers it inserts in the opinions.

"In addition, HyperLaw intends to expand its products so that a user reviewing an opinion can see the full text of any case cited in the opinion by simply clicking on the citation. Since many of the cited cases are from before 1990 when HyperLaw began collecting the cases, it intends to scan these cases into its product directly from the West Reporters. Alan Sugarman, HyperLaw's President, admitted that this process of obtaining cited cases might ultimately result in HyperLaw scanning up to 75% of West cases into its system . . .

"Section 403 clearly reflects a judgment by Congress that those who publish material that basically comes from government sources should not be able to appropriate that material for themselves simply by incorporating additional material into the text without giving adequate notice to the public of that portion of the document that contains material protected by the publishers' copyright. Thus, in doing a fair use analysis with respect to any reprint of an opinion published by West, it would be reasonable to weigh against West the fact that it does nothing to indicate to the public which portions of the reprinted opinions contain new matter added by West as to which they claim a copyright.

"CONCLUSION

"Since West has no copyright interest in those elements of the reported opinions which HyperLaw is copying and intends to copy, HyperLaw is entitled to a judgment that its copying on the opinions from the West reports does not violate West's copyrights."

So, Jurisline probably thought this case would be their umbrella. But something went terribly wrong. Matthew Bender sued Jurisline in return, naturally. They cleverly sued for fraudulent representations, alleging that one of the principals at Jurisline made misrepresentations to access their database. He had agreed to their terms and said he was a sole practitioner, who wouldn't share the data on a network or with other attorneys, etc. Read the above terms and you'll see that they had him good. It wasn't the use of public domain materials, or even copyright issues that killed the Jurisline case. It was the EULA.

Eventually, Jurisline caved, after the federal court ruled that Matthew Bender's state law contracts claims were not preempted by the US Copyright Act, so they ended up stipulating to a dismissal of all their claims in federal court and to a judgment for Bender in state court:

"Jurisline acknowledged the validity and enforceability of Matthew Bender’s license, agreed to removal of all data derived from the Lexis Law on Disc™ CD-ROMs from its system, agreed to return the CD-ROMs and all copies to Matthew Bender, and agreed not to deliver any of the LEXIS data to anyone."

There is a detailed explanation of copyright preemption on that page, which you might find of interest, since it was at issue in the SCO-Novell case and it was raised by SCO regarding the GPL in the IBM case too. Here's what the federal court did to defeated Jurisline:

"The federal court dismissed all of Jurisline.com's claims on June 19, 2000. The federal court's judgment included the decisive ruling that Matthew Bender's state law claims were not preempted by the federal law of copyright. Following that ruling, final judgment was entered against Jurisline.com and Lee Eichen in state court, with their consent.

"The judgment in state court:

  • declares that the license agreements under which Reed Elsevier Inc. and Matthew Bender license case law and statutory materials are valid and enforceable.

  • directs Jurisline.com to delete from its web site and storage media all the material that they obtained under license from Matthew Bender and its predecessor, and requires Jurisline.com to cease and desist from providing to any third parties the content licensed from Matthew Bender and Reed Elsevier Inc.

  • compels Jurisline.com to return to Matthew Bender all of the licensed CD-ROMs and copies of them in its possession.

  • prohibits Jurisline.com from using the LEXIS databases except as may be authorized in writing by either Matthew Bender or Reed Elsevier Inc.

  • requires the immediate transfer by Jurisline.com to Reed Elsevier Inc. of 48 domain names."

In short, it was a debacle, or as Matthew Bender's attorney put it, the rulings "terminate the litigation very successfully for our clients." That's how lawyers talk when they are gloating.

Jurisline wasn't alone in viewing Lexis and Westlaw's terms and conditions as a "copyright by contract" scheme. And the case doesn't mean no one can put together a database of case law, because some do, but it does mean you have to either pay somebody for the data, the older cases that aren't online for free, or collect it yourself the old-fashioned way. And don't click "I agree" to anything you don't mean to live by.

What does all this have to do with Microsoft and the US Constitution? Just that you probably shouldn't assume that you can ignore the restrictions, even if the US Constitution is in the public domain. I don't know what copyrightable elements there could be in there, but it sounds like there might be some, from the description. But the real danger is that once you click, I agree, you are probably doomed. Companies have been systematically working to set up the laws and the tech to make sure you can't do anything without serious, mind-boggling risks. Microsoft or Adobe probably won't be suing anybody over printing three copies of the US Constitution, but this whole DRM thing isn't being set up just as a proof of concept. They mean to use it. Just one more reason to switch to FOSS at your earliest opportunity, where you don't have to wonder if you'll become a felon if you print a copy of the US Constitution.

Of course this story also tells us that just because Boies Schiller represents a company, it doesn't mean they will win.


  


Microsoft, DRM, David Boies, and the US Constitution | 470 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Government, law and laws.
Authored by: gbl on Wednesday, July 07 2004 @ 03:56 AM EDT
In both the US and the UK, the general principle, "ignorance of the law is
no excuse" remains in force.

However, when was the last time any government sent you a copy of the laws of
the land

When was the last time any government sent you a a notification that a law that
effected your personal life had been amended?

Governments want a lawful society but do little to set the ground work. I spent
twenty years in full time education from pre-school to PhD and NOT ONE MINUTE of
the curiculum was about the UK legal system.

The vast majority of the population learn about the law from TV shows. In the
UK, most people have an impression of the law drawn mostly from Perry Mason, LA
Law and The Bill. This is a deep and serious problem which means that most
people neither know or understand their rights, or worse, assume that legal
rights in another country apply.

The actions of the RIAA and similar using the word "Theft" incorrectly
when refering to copyright matters makes the confusion worse - which is their
intent no doubt.


---
If you love some code, set it free.

[ Reply to This | # ]

I can think of only one thing more deliciously ironic
Authored by: Anonymous on Wednesday, July 07 2004 @ 04:04 AM EDT
And I await the day when Microsoft patent methods for cracking their own DRM
with baited breath.

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: muswell100 on Wednesday, July 07 2004 @ 04:29 AM EDT
Now we really have passed into the realms of the truly surreal. Alright, I'm
only a British citizen (we don't have a written constitution, as it happens),
but isn't there a thing in yours called the First Amendment that states a little
something about Freedom of the Press? As I read it, there's no mention of that
Freedom being conditional on payment of a fee. What next? Make the Bill of
Rights or the Gettysburg Address available only through subscription?

Concerning freedom in general, Thomas Jefferson may have seen that these truths
were 'self evident', but somehow they seem to be lost on Microsoft and other
supporters of DRM.

[ Reply to This | # ]

Licenses: Protective or not
Authored by: Anonymous on Wednesday, July 07 2004 @ 04:33 AM EDT
A core problem is the (lack of) decent licensing for laws (noone thought of it
200 years ago) and the lack of protection on Public Domain works. That
opens to all kinds of tricks and loopholes. BSD-licensed stuff can be taken for

free, which may or may not be fitting for any given work.

However stubborn Richard M. Stallman may be, the GPL and related licenses
offer an ingenious protection sceme: Derived works must be published under
the same license. That's smart, it is a guarantee that anything based on it will

be available to anyone - which BTW is what Public Domain was presumably
intent to do, but fails due to lack of protection.

-Henrik

[ Reply to This | # ]

Bridgeman v Corel - art in the public domain
Authored by: moonbroth on Wednesday, July 07 2004 @ 04:52 AM EDT
IANAL, but nevertheless I found the Jurisline shenanigans remniscent of Bridgeman Art Library, Ltd. v. Corel Corp., which happened a few years back and involved US and UK copyright laws. Rather than public domain legal resources, this was about copies of artworks that are in the public domain. To quote the UK Museums Copyright Group summary:
"The Bridgeman Art Library (UK) brought an action against Corel Corporation for breach of copyright in the USA and lost. The crucial issue for museums was whether a photograph of a work of art is an original work and thus protected by copyright law. In the New York Southern District Court, Judge Kaplan, using UK law to reach his first decision, ruled that a photograph of an out-of-copyright artwork is not itself sufficiently original to have copyright protection.

"Judge Kaplan was asked to review his decision and following re-argument reached the same conclusion a second time, this time based on American law but again citing British law.

"The decision is not binding on courts in the UK, nor is it of overwhelming authority in the USA, but it has caused great concern amongst the museum community which relies on income received from licensing photographic reproductions of objects and works in their collections. Museums are also concerned that unauthorised copying will undermine the quality and integrity of image reproduction."

When I first read about this, I felt it was rather scandalous that anyone could think a perfect reproduction of a public domain artwork should itself be subject to copyright. Does anyone out there know more about the current state of play?

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Erin on Wednesday, July 07 2004 @ 05:01 AM EDT
OT: You might want to check this out

http://www.neowin.net/comments.php?id=22010&category=main



---
e. williams

[ Reply to This | # ]

what's the problem
Authored by: pyrite on Wednesday, July 07 2004 @ 05:05 AM EDT
I have been feeling awfully alone in some of the things I see, or maybe it's in
the angle that I'm looking at it from... the thing has an index. It's in an
electronic format.

The way I see it, is if you want to get the US Constitution for free, you can.
No one is stopping you. If you want to get the US Constitution in e-book format,
you can. No one is stopping you.

Is the suggestion here that there should be a law forbidding anyone from selling
an e-book with any kind of restriction on it?

Again... so it's absurd. Ok, fine... what's the solution? I say the solution is
this... if you don't like it, don't buy it. Get it online or something. Type it
in yourself - it won't take that long. Use some of those wonderful text
processing utilities that Linux and its Unix predecessors have had around for
decades and create your own index. Won't take you that long. How many copies are
you planning to print anyway? What about going down to the local copyshop and
giving them some of your business... I am sure they would appreciate it.

Yes, it's ironic, yes, it shows how far we have come, yes, it borders on the
ridiculous. No one is forcing you to buy it though, are they?

And again, what is the solution here? Are some individuals actually suggesting
that one should not be allowed to place restrictions on electronic-version
derivative works of items that are in the public domain? Isn't that restrictive?


Ok... now I see... this is all about the DMCA and why we should get rid of the
DMCA. Looking at if from that angle, it makes a whole lot of sense, doesn't it?


So the solution - get rid of the DMCA, and then Adobe and Microsoft and whoever
else can do whatever they wish with their electronic versions of derivative
works of items in the public domain.

Makes sense to me.

[ Reply to This | # ]

Proprietary Laws (OT - maybe...)
Authored by: Tomas on Wednesday, July 07 2004 @ 05:16 AM EDT
Indeed, as another poster asked, "...when was the last time any government sent you a copy of the laws of the land?"

I don't ask that the government notify me and send me copies of all changes to laws, but I believe it is fair to ask that the laws be easily and readily available to read without cost to do so.

Where I live (Washington state) some of our laws changed on July 1, 2004. At this time I have some questions about fire code compliance, and need to look at some of the code.

This state has it's state laws (RCW and WAC) on-line with free access, so I thought there would be no problem.

However, the state laws on this subject simply refer one to the copyrighted and very expensive ICC publications.

Normally at that point I would go to the library to peruse a copy, but our local library system does not have any copies available.

As my next try, I called the fire inspection folks at the fire department, who also did not have a copy of the new code books, only last year's which had been 100% superceeded (they had been from a different publisher).

I took the plunge and found a discounted copy of the ICC fire code book on-line in paperback for under $60 and ordered it.

It was nowhere near complete, and requires at least two other books from the series, including the $90 building code book to which it constantly refers. (...door assemblies in passageways shall comply with section xxx.x.x of the International Building Code... and ...as set forth in the International Mechanical Code... etc.) International Code Council

Yeah, I know, these really are not public laws - except that they are written into state law and there is no way to know what the law is other than spending a fortune to by copyrighted, proprietary books.

What does this have to do with anything? I'm not sure, really, except that PJ asked up front "What about laws? Can they ever be copyrighted and made proprietary?"

I appears they certainly can be - all one has to do is enact a law that says "the contents of *this proprietary book* are now law, if you want to find out what the law is, buy the overpriced book, and all other books it refers to."

I don't believe there's any way out of this sort of dilemma.

---
Tom
Engineer (ret.)
"Friends don't let friends use Microsoft."

[ Reply to This | # ]

Published by the by U S Government, the US Constitution, in Microsoft DRM format.
Authored by: horzel on Wednesday, July 07 2004 @ 05:36 AM EDT
Seems something is missing in the whole dialog here?

It says on the Amazon website:
-+-+-+-+-+-+-+-+-+-+-
The United States Constitution and Amendments
[DOWNLOAD: MICROSOFT READER]
by U.S. Government
-+-+-+-+-+-+-+-+-+-+-

The article more or less reads like Microsoft is publishing this. But to me it
seems the "U.S. Government" is publishing it using Microsofts
proprietary DRM version.

Why does the "U.S. Government" do that. In this case I don't think
Microsoft is to blame for it. You should blame the publisher!

P.J., I think you need to change your article a bit!

Eric van Horssen

[ Reply to This | # ]

Weather data
Authored by: paul_cooke on Wednesday, July 07 2004 @ 05:37 AM EDT
they're trying to do a similar thing with the weather data currently available for free as plaintext that you can use in KDE's Kweather etc..

This slashdot topic brings it all into one coherent thread

---
Use Linux - Computer power for the people: Down with cybercrud...

[ Reply to This | # ]

BOCA CODE
Authored by: Anonymous on Wednesday, July 07 2004 @ 06:46 AM EDT
The BOCA Code is a proprietary building code adopted by some communities too
avoid having to deal with the complexities of writing the code on their own. The
advantages are that the code is comprehensive and pretty much standardized. The
disadvantages are that it nitpicks about certain things and some communities
will still have to review and amend the code to have it conform to their needs.
Another disadvantage is that the code is not available in its final form for an
average citizen to use without paying for a copy and making the modifications
which the local government may have adopted by ordinance.
Several years ago I drew up plans for an addition to my home. The
addition was post and beam construction for the walls and exposed plank and beam
construction for the roof. Pretty standard stuff and used in construction
everywhere. I was informed that the plans could not be approved as the
construction technique was not in the BOCA Code which the building officials
used. I asked for a copy of the code and was told I could look at it at that
location but to study it at home I had to purchase it. I then was told that I
could hire a licensed architect to draw up the plans and apply his seal to
them, and the plans would be approved. I thought that the building official was
replying by rote and hiding behind this code as a reason not to act on my
application. I informed him that his choice was to approve or reject the plans
and give the technical reasons for the disapproval based on their deficiencies,
stamped with a professional seal, (the rejection should not just be based on
the deficiencies of the BOCA Code). I then informed him that the Superior Court
filing fee was $100 and the cost of an architect was at least five times that,
and that he should guess which route I would take to get my plans approved. He
said to wait a few days while he researched the building technique, I did and my
plans were approved.
The problem with this kind of proprietary law is that the average citizen
is not allowed access to the code unless he pays a fee and the law is not
generally circulated to the public. No town publishes the text of the code in a
newspaper as it is prohibitively long and not allowed.

[ Reply to This | # ]

This sounds like...
Authored by: Steve Martin on Wednesday, July 07 2004 @ 07:27 AM EDT

Please Note: This book is easy to read in true text, not scanned images that can sometimes be difficult to decipher. ... Both versions are text searchable.

<tongue-in-cheek>

It hit me when I read this that they're taking documents that are available on the Web, transcribing them into text form for easier reading and to allow easy searching. Let's see... is it possible at all that Microsoft got the idea for this from a well-known legal research blog?

</tongue-in-cheek>

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Consensus Codes & Standards
Authored by: rsteinmetz70112 on Wednesday, July 07 2004 @ 07:49 AM EDT
There have been a couple of comments on this article about the cost to purchase
copies of codes and standards. I would like to point out that these codes and
standards are generally developed by volunteers without significant government
funding. Since most of these codes and standards were originally developed prior
to the advent of cheap ubiquitous electronic communications, the model developed
to fund development was to sell the published works (then the only effective
method of distribution) to those who benefit most from their use, a sort of user
fee. Most public agencies and many libraries have these publications available
for public use.

It is clear that this model of development is out of sync with the needs of some
individuals. It is not clear how change it while preserving the benefits of
public involvement in development of these standards.

In many ways these consensus standards and their development systems which go
back over a century can been seen as a precursor to the cooperative development
model used in FOSS.

[ Reply to This | # ]

Blatant Plug
Authored by: Bander on Wednesday, July 07 2004 @ 07:53 AM EDT

You can get the US Constitution, Declaration of Independence, and a few other works at my site, The Bandersnatch Unpress. They are available in HTML and some PalmOS formats.

The Unpress editions include such advanced features as a table of contents with links to the chapters and are not scanned-in images, but actual easy-to- read text. The works on my page are in the public domain , so you can print as many copies as you like and view on as many devices as you own (except for Anthem, which has a lapsed copyright in the US -- please check before downloading Anthem if you are not in the US). Give them to friends -- and enemies.

Cheers,

Bander

[ Reply to This | # ]

Cory Doctorow's talk at MS, and MS's own copyright-breaking tools
Authored by: futureweaver on Wednesday, July 07 2004 @ 08:01 AM EDT
This seems like a good place to repost a link to this excellent talk.

My favourite quotes :

"Copyright isn't an ethical proposition, it's a utilitarian one"
which nicely gives the lie to the notion of "copyright theft" - but best of all :
"... Microsoft has been making tools of piracy that change copyright law for decades now. Outlook, Exchange and MSN are tools that abet widescale digital infringement. More significantly, IIS and your caching proxies all make and serve copies of documents without their authors' consent, something that, if it is legal today, is only legal because companies like Microsoft went ahead and did it and dared lawmakers to prosecute. Microsoft stood up for its customers and for progress, and won so decisively that most people never even realized that there was a fight."

Nicest use of irony I've seen in quite a while.

[ Reply to This | # ]

  • IP theft!! - Authored by: globularity on Wednesday, July 07 2004 @ 10:36 AM EDT
    • IP theft!! - Authored by: Anonymous on Wednesday, July 07 2004 @ 12:22 PM EDT
Get your US Constitution here
Authored by: Anonymous on Wednesday, July 07 2004 @ 08:17 AM EDT
(And a bunch of other useful stuff)

GNU miscfiles

[ Reply to This | # ]

We need a public law database
Authored by: rben13 on Wednesday, July 07 2004 @ 08:57 AM EDT
It seems to me that there is a simple and practical remedy to the problem with
lexis and west law online databases. Public funds should be allocated to all
courts to pay for the entry of all court documents and laws into a set of
databases that are linked throughout the country. This would provide a valuable
resource for individuals that seek to represent themselves, law students,
researchers and interested members of the public. There is no reason to
restrict this information to people who can afford to pay the fees demanded by
the current online database vendors.

This will not diminish the market for such online databases since they can
continue to add commentary, cross-indexing and other valuable services.

This doesn't help the larger problem that PJ points out, where we allow
companies to strip us of our rights by click through EULAs. Creating an
environment where people have a reasonable expectation that they won't lose
vital rights without thier knowledge is something that the government should be
concentrating on. Perhaps they can spend their time on that rather than trying
to outlaw P2P technology.

[ Reply to This | # ]

! ! > Amazing digital resources
Authored by: Tim Ransom on Wednesday, July 07 2004 @ 09:04 AM EDT
including the U.S. constitution can be found at the Open Archive Initiative. They have made digital resources no Googling would ever find available for perusal. They are now linked to over 300 institutions (mainly universities) from around the world. Lots of great stuff. Starving students take note! A search for 'U.S. constitution' returned 32 results from various institutions - want a high res TIF of the original, or maybe a seachable, annotated version with cases cited? They got 'em.
Try a search on 'open source software'. You get over 150 results you will never find on Google. I think Grokkers could find a wealth of good stuff here.
Link

---
Thanks again,

[ Reply to This | # ]

Assessment Technologies v. Wiredata
Authored by: Anonymous on Wednesday, July 07 2004 @ 09:08 AM EDT
Doesn't this opinion contradict that one. Is there a double standard when
lawyers are the ones with the
data?

http://www.techlawjournal.com/topstories/2003/20031125.asp

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: greybeard on Wednesday, July 07 2004 @ 09:09 AM EDT
Remarkable. At the very least, MS could start a series. I suggest that they
also provide copies of the "patriot" Act and DMCA, sort of bookends to
the Constitution. For value add, they could color code (a la Groklaw) the parts
of the Constitution that are left after the application of the other two. A
derivative work, no doubt. Unfortunately, they would likely insist on patenting
the notion of color coding and the the USPO would grant it.



---
-greybeard-

[ Reply to This | # ]

You can't copyright a law.
Authored by: Anonymous on Wednesday, July 07 2004 @ 09:11 AM EDT
The case Veeck v. Southern Building Code Congress Int'l settled that. You can't
try to enforce copyright over a law. Even if you *wrote* the law yourself.

"when a copyrighted standard or code is referenced into law (particularly
if it thereby becomes "the law"), the developer cannot enforce its
copyright against a free distribution of the standard"

http://www.gtwassociates.com/answers/veeck.htm

[ Reply to This | # ]

In the UK, there's BAILII
Authored by: futureweaver on Wednesday, July 07 2004 @ 09:14 AM EDT

The British and Irish Legal Information Institute (BAILII) provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet. As at 6 February 2003, BAILII included 34 databases covering 6 jurisdictions. The system contains around six gigabytes of legal materials and around 475,000 searchable documents with about 15 million internal hypertext links.

It's a collaborative project funded by many contributions, largely from the legal profession. It has support at the highest level - for example Lord Saville, who is a Lord of Appeal in Ordinary (UK equivalent of a Supreme Court Justice), is a trustee. An article about it says "The strong conviction of all those involved in the project is that laws are the bedrock of society and should be made freely available to all, so that no-one is denied access to the laws which govern them. This belief has sustained the project through many financial and technical hurdles as well as the response from quite a few in the legal world that 'it couldn’t happen here’" (my emphasis).

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 09:23 AM EDT
I wonder how many worms will be designed to invade your pocketPC through this
eBook. I mean we all know if it's microsoft it's not secure.

[ Reply to This | # ]

Donate your legal library!!
Authored by: Anonymous on Wednesday, July 07 2004 @ 09:47 AM EDT
A couple of years ago, a law firm I know well got rid of it's legal library.
All those shelves of books - gone - not needed anymore. All the information
they needed they obtained and stored electronically - and paid for the service.

They kept a few series of publications on some obscure areas of law that they
practice in, and some of the very oldest books (the firm is well over a a
century old), but everything else went. I don't know what they did with the
books.

I'm sure there are other firms in a similar position.

Perhaps we need to start a foundation to accept donations of retired legal
libraries. Make it a 501(c)3 corporation so it's deductible. The mission of
the foundation would be to make legal information accessible to everyone -
including on line and on CD. Write open-source documentation protocol and
search tools for the scanned documents. Volunteer transcriptions for
"greatest-hits" decisions, code, and regulations. Help establish free
legal libraries for legal aid groups and the public.

The partner at this firm like to remind that one of Shakespeare's characters did
indeed say, "We'll kill all the lawyers first."

The character was answering a question that amounted to, "How do we
establish a dictatorship?"

--Guil, not signed in at work

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 09:48 AM EDT
I remember back in the 50's when the government had the
strange idea that it was good to disseminate its
tax-supported data widely to its citizens. The Government
Printing Office had a wide range of useful documents and
books at very affordable prices. I bought many and
learned much from them.

[ Reply to This | # ]

Lexus/Westlaw and copyright vs. license
Authored by: Anonymous on Wednesday, July 07 2004 @ 10:01 AM EDT
This is not flaimbait, IANAL, etc.

I don't agree entirely with PJ's criticism of Lexus and Westlaw. Lexus and
Westlaw effectively are making a composite of public domain works, and have
copyrighted the composite and their "value added" portions. It is
true, Lexus' copyright statement appears to be way more encompassing than it is
legally allowed. Westlaw at least acknowledges that portions of their web site
are in the public domain.

However, if I publish a book which consists of the U.S. Constitution, I am 100%
within my rights to copyright the book and prevent other people from duplicating
_my_ book. They are free to publish _their own_ compilation of the U.S.
Constitution with no need to ask for my permission.

In a like manner, Lexus and Westlaw spent considerable time and effort creating
their compilation of law cases. It is perfectly reasonable and, IMHO 100%
legal, for them to copyright their _compilation_. If Jurisline wants to provide
a free version, they are 100% within their rights to do so, as long as they
abide by the law with respect to copyrights: i.e. they may not directly copy
Lexus and/or Westlaw's compilation.

Now what Jurisline ran afoul of was *NOT* copyright, but was instead the
Lexus/Westlaw access license. Jurisline was free to copy the public domain
portions from other sources, but chose to use Lexus/Westlaw's access method,
which included *ACCEPTING* their licensing terms (which they subsequently
violated).

PJ rails against Lexus/Westlaw's copyright stance and laments that Jurisline
lost their case, implying that they are one and the same. This is not true:
Jurisline lost a licensing battle. If Jurisline had never accepted
Lexus/Westlaw's license terms, they (probably - IANAL) would not have lost a
_copyright_ case (assuming they only copied the public domain parts). Of
course, it appears that Jurisline would not have been able to copy the public
domain information out of Lexus/Westlaw's databases _without_ accepting their
license.

So fine. If Jurisline wants the public domain information, they should get it
_legally_ from sources other than Lexus/Westlaw. After all, that is exactly
what Lexus/Westlaw did.

[ Reply to This | # ]

I have a way to break the 2 copy limitation
Authored by: Anonymous on Wednesday, July 07 2004 @ 10:02 AM EDT
Unless Microsoft Reader uses a print method other than standard, you can
redirect any print output to an insecure format, such as PostScript, PDF, or
dump to a printer file and use an older MS Windows OS to create multiple copies.
You might want to use of some unix command-line utilities from SCO Unix to make
the multiple copies too.

Once you capture the entire printout, the technology should not restrict you as
to the amount of copies you can or can not make.

Does this action violate the DMCA or any MS EULA? Does this posting of the
method violate the DMCA or any MS EULA?

If it does, come and get me. I'll be waiting.

[ Reply to This | # ]

What's the fuss???? Really
Authored by: Anonymous on Wednesday, July 07 2004 @ 10:17 AM EDT
I'm sorry, I'm not trolling, but I am having a little trouble grasping what the fuss is about.

Individuals and Companies have been building works on top of public domain works forever.

You can see all kinds of documentaries and movies containing government WW2 footage

There are all kinds of plays, books and movies that are based on public domain works which are public domain by virtue of the copyright expiring (Shakespeare, Dickens, Grimms, etc)

There are all kinds of concerts, books (scores), CDs, etc., that are based on public domain classical music which are public domain by virtue of the copyright expiring (Mozart, Bach, Beethoven, etc)

Some of the above are very similiar to the originals - whereas others add new elements (e.g. compare the old black and white version of Dickens' Christmas Carol to the Bill Murray movie Scrooged). etc.


The fact that they are, seems to me one of the benefits of having a large public domain. Sure, some (90% as usual?) of the individuals' and companies' works will be rubbish with restrictive or unusable terms. But some *other* individuals' and companies' works will be good valuable and have reasonable terms. And it's the good new works part (quite apart from that you may find not everybody agrees what the good part is) that is part of the benefits of a public domain.

The new (built on top) versions are copyright protected.

The *original* version remains in the public domain

Do you think that if you attended a concert of the New York Philharmonic playing Mozart, that they'd let you bring in a tape recorder, just because Mozart is public domain. Do you think if you saw a Broadway stage version of Hamlet, they'd let you video it, just because Shakespeare is public domain.

If you want to produce your own version, you can always go back to the *original* public domain source


And there have been cases relating to this type of thing going back for decades.


As to Microsoft's US constitution ebook. If you don't like the terms, don't buy it. Just like if you don't like not being able to video a broadway stage version of Shakespeare, don't buy a ticket fot that.

I'm sure there are, infact the article says there are, other less restrictive ebook versions available. And that is my whole point. Public domain means individuals and companies can build on top of the public domain to produce new works (and the built on top additions are subject to copyright). Some of the works will be bad. Some of the works will be good. Some will be rather like the original public domain source. Some will add many new modifications, features, etc. And we as consumers or readers, can choose for ourselves which of the new works we like.


Regards
Quatermass

P.S.

Regarding the Boies case cited in the main article, it seems to me that another way to look at is, is that Boies firm likes to argue that other people's (i.e. people other than BSF clients) copyrights etc., don't matter.

They argued this in Napster (do you think if somebody have ripped off the Napster program that they would have argued that Napster itself should be subject to compulsory licensing, or is not protected by a putative Napster-Ripoff not doing the copying itself but merely encouraging others to do so).

They argue this in SCO v IBM (where they want IBM's and other's copyrights in Linux to be unenforceable)

And, I think if you look at the Westlaw case in this light, you might see it not as something different, but part of BSF pattern.

[ Reply to This | # ]

OT: Microsoft needs to save money
Authored by: Anonymous on Wednesday, July 07 2004 @ 10:25 AM EDT
http://www.forbes.com/infoimag ing/feeds/infoimaging/2004/07/07/infoimagingcomtex_2004_07_07_ak_0000-7645-.dstf ront_07.html
http://www.itworld.com/ Career/1699/040707mssaves/
http://news.bbc.co.uk/1/h i/business/3872717.stm
http://seattletimes.nwsource.com/html/businesstechnology/2001973671_ microsoft07.html

From BBC: "Software giant Microsoft wants to slash annual costs by $1bn after detecting a sharp rise in spending over the past three years, reports say. The cost cut target was set out by Microsoft chief executive Steve Ballmer in a memo sent to each of the company's 57,000 staff this week."

[ Reply to This | # ]

The Electrical Code - lost its copyright
Authored by: tz on Wednesday, July 07 2004 @ 10:52 AM EDT
I forget where (it may have been an old /. story), but there was a court case
mentioned when a state adopted the electrical code that was published in a book
which was copyrighted.

Someone "published" the book as law and there was a court case and the
court found that BECAUSE the book was now law, the text could not be copyrighted
(I don't know about trademarks, or details about the collection). Since it was
"law", it became freely redistributable, just like any other law.
Apparently emminent domain doesn't apply to intellectual property.

Lexis and Westlaw have a subtle difference. The original texts aren't
copyrighted, so they have the license. Of course if the courts and legislatures
put all their decisions on the internet, Google, or similar search engines
should be able to get them.

Searchability and linkage might be something value-added that would be
copyrightable.

In one sense, Lexis/Westlaw should have the right to license things just like
the GPL. The GPL puts restrictions on redistribution. It takes time and money
(or at least before inexpensive computers and broadband) to transcribe court
decisions. If I spend thousands of dollars compiling a CD of public domain
works, I might want to license that CD so that you can use it but not have a 3rd
party benefit without paying me. I might want to do a GPL like license (so you
could redistribute the collection but not change it), or some other variant.

But that shouldn't apply if the collection becomes "law". I shouldn't
have to pay a private party to determine what does or does not comply or what
the law says.

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 10:57 AM EDT
I wonder if the LexisNexis and other law databases are copyrighted as collective
works, rather than as individual documents.

I remember a discussion on CompuServe years ago about the collected posts to a
forum being covered under a collective copyright, in that the collection
couldn't be copied to another source without CompuServe's express permission;
but individual posts were the property of the posters themselves.

If it's not that, maybe it's some variant of that.

[ Reply to This | # ]

Westlaw
Authored by: Anonymous on Wednesday, July 07 2004 @ 11:27 AM EDT
I am not intending this to be flame bate, a troll or anything to incite flames.

So that said...

Back in the late 90's I worked for West Publishing (later West Group, now
"West a Thomson Company". During that time there were many high
profile
and low profile law suits related to the date both on Westlaw and Lexis-Nexis.

The way it was always explained to "the employees" when these things
came
up is that West does not, and will not exert copyright over the statutes and
(public) court cases/decisions. However, they fully intended to state
copyright on all of the editorial notes, legislative history notes, and other
"value added" things. In addition, the organization (when dictated by
West)
was a copyrightable thing. (This refers to citations, key numbering, key cites

and other West "created" numbering systems.)

The best way to look at this is.. I can go (through fair use/or public domain)

and grab pictures and other material. The material itself I do not have the
copyright on.. but the second I put it into a collage and make a "new"
work
from it. The copyright on the new work belongs to me. The whole work is
the copyrighted material, not the parts that made it up.

While I don't always agree with the views of my former employeer, I know for
a fact they do a hell of a lot of work to get the laws/cases in, process them,
annotate (and number) them, and finally make them available to their
customers under a contract that basically says you can use this information,
but don't "steal" the whole thing.

What some companies had done was to "steal" the information, and thus
the
considerable amount of work done by West (and Lexis-Nexis) especially on
the processing and annotation/numbering forum.

If some company wants to come in and get the original laws (or court
decisions), spend the up front work to scan, process and create a work based
on those. Then I am all for additional competition. But bootstrapping a
company by taking 100+ years of work is IMHO amount to stealing.

(If you think it's easy, try reading a federal social security law and figuring
out
what it adds or modifies and how it should be added into an existing law
book... and BTW thats an "easy" read compared to some of the stuff
enacted
by legislatures.)

Anyway. I think you get the idea from someone who has been involved with
the work of actually processing these laws/cases.

[ Reply to This | # ]

  • Westlaw - Authored by: Anonymous on Wednesday, July 07 2004 @ 12:51 PM EDT
    • Westlaw - Authored by: Anonymous on Wednesday, July 07 2004 @ 04:06 PM EDT
It's days like this...
Authored by: inode_buddha on Wednesday, July 07 2004 @ 11:46 AM EDT
That I am *so* glad for good old paper and ink. That's how I got my copy of the
Constitution anyway. Now to blay the devil's advocate a bit, the only way I
could justify any of this is: the law (and other decuments) may be public
domain, but the cost of publishing them sure isn't.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

Royce Funds under Internal Investigation
Authored by: Anonymous on Wednesday, July 07 2004 @ 11:47 AM EDT
from the yahoo scox board ->

"I own some of one of the ING funds that are managed by Royce, and I got a
letter from them a couple of weeks back explaining that they are making some
changes in their managers. Seems there is some kind of investigation in the way
they have been doing their investments, and there are some holders in this fund
who may have lost money due to possible criminal actions on their part. I guess
we will see what will happen."

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 12:49 PM EDT
I think the confusing part is this:

"you can now buy, for $2.99, Microsoft's proprietary version of the US
Constitution"

While technically this may be correct, it would be less misleading to say:

"you can now buy, for $2.99, an eBook version of the US Constitution in
Microsoft format", possibly adding " published by [or from] the US
Government".

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 12:52 PM EDT
Or this part:

"What does all this have to do with Microsoft and the US
Constitution?"

It has nothing to do with Microsoft - any more than Scott Paper is responsible
for a draconian EULA printed on its paper.

[ Reply to This | # ]

to be fair, a question
Authored by: qcubed on Wednesday, July 07 2004 @ 12:56 PM EDT
the amazon page doesn't say who it's published by, merely that it can be read by
microsoft ebook reader. furthermore, the acrobat version is similarly
limited... now, it appears to me that in this case, microsoft really isn't the
bad guy, because they're not really publishing, or selling the constitution with
such restrictions. at least, they're no more the bad guy than adobe is for
allowing the same such drm restrictions... whoever the publisher is, be it
amazon or whatever, i believe they should be the ones getting more of our ire...
not just the enablers microsoft and adobe.

[ Reply to This | # ]

Oregon claims copyright to administrative rules, bars derivative works
Authored by: marbux on Wednesday, July 07 2004 @ 12:59 PM EDT
Add the State of Oregon to the list of governments not only claiming copyright over its state administrative rules, but also barring derivative works or commercial copying without permission. Oregon Secretary of State's terms and conditions of use.

To my mind, this was always an abuse of copyright probably intended to raise revenue and to reduce competition for established companies that republish legal authorities.

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 01:11 PM EDT
People pay for stuff that they can get for free all the time. In downtown San
Jose, California all the city owned parking lots are free after 6pm and at
weekends. Yet people pay to park in the privately owned lots (perhaps because
they don't know about the free lots, or perhaps becuase they don't want to walk
an extra block). If Amazon/Microsoft want to make $2.99 from people who want to
buy a copy of the constitution, then more power to them.

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 01:15 PM EDT
US Constitution for $2.99 from Microsoft. And what else did anyone expect? SCO
owns anything that looks like unix and Microsoft owns anything that could be or
has been typed into Microsoft Word. What else is new.....

[ Reply to This | # ]

OT: Big days ahead
Authored by: Anonymous on Wednesday, July 07 2004 @ 01:45 PM EDT
Tomorrow is a big day, SCO's opposition memo to IBM's summary judgement motion
is due

The next day is also a big day, we get to see if SCO tries to replead special
damages in the Novell cases.

(And by the way, does anybody have Daimler's reply in support of their summary
disposition memo. Please post a link if you do.)


Some predictions (please remember I am NOT agreeing with these, but I don't
agree with SCO or their arguments, but I do think this will be their
arguments):


Predicted SCO v IBM opposition to summary judgement motion

1. IBM's 10th counterclaim is not compulsory, so should be dismissed by
discertion of the court
[IBM have already argued it is compulsory]

2. IBM's 10th counterclaim seeks to inject activities of third parties (non IBM
contributions), so should be dismissed by discertion of the court [IBM have
already argued that IBM's 10th counterclaim is only about IBM's conduct]

3. IBM's 10th counterclaim is already subject of the AutoZone case, so should be
dismissed or stayed by the court for judicial economy or SCO's interpretation of
first-filed ruled. [IBM have already argued first filed doesn't apply, and if it
did it would support IBM going first]

4. IBM's 10th counterclaim is unnecessary as SCO's 2nd amended complaint doesn't
sue IBM for copyright infringements in Linux, so should be dismissed or stayed
by the court. [IBM have already argued against this, re: compulsory issue, res
judicata, etc.]

5. IBM's have failed to join the third parties whose activities IBM seeks to
inject into the case, so should be dismissed by the court. [this is a likely new
SCO argument I think, again IBM have implicitly argued against this saying IBM's
10th counterclaim is only about IBM's conduct]

6. Failing 1-5: IBM's 10th counterclaim seeks to inject activities of third
parties, so further discovery is necessary, requesting rule 56f relief. [IBM
have implicitly argued against this saying IBM's 10th counterclaim is only about
IBM's conduct]

7. Failing 1-5: SCO needs discovery of all iterations of AIX and the associated
programmer notes, etc., so further discovery is necessary, requesting rule 56f
relief. [IBM have argued against this citing Gemisys]

8. Failing 1-5: SCO have identified copyright infringements by IBM (I have no
idea what), but they might just claim to have. Rule 56e, a fact in dispute.



Predicted SCO v Novell:

They won't replead special damages.

They have to identify a writing transfering copyrights, they have lost their
preferred state court venue, their parole evidence is not likely to be
applicable, and Judge Kimball has indicated the writings they have so far
identified don't cut it.

I think SCO would prefer no resolution (on copyright ownership) to a resolution
against them.

And I think SCO knows (see correspondance with Novell) that they are not
supposed to enter any new System V licenses, or amend existing System V
licenses. If their special damages are going to be lost SVRX licenses in the
guise of Linux IP licens, they are opening themselves to new problems, problems
that I don't think that they'll be brave enough to risk.

This is a close call though, as SCO's hyper-aggressiveness, may over-ride any
rational self-preservation instinct that they might have.


[ Reply to This | # ]

Jurisline kind of crazy...
Authored by: GLJason on Wednesday, July 07 2004 @ 01:54 PM EDT
It's too bad someone didn't copy Jurisline's database prior to them going down.
Any of the material in there that is public domain could then be made available.
If they didn't agree to Lexis's license and they got the public domain material
from another source, there would be nothing that could be done about it. Maybe
Lexis could sue Jurisline for doing making that information available, but
without agreeing to Lexis's license, those public domain materials have no
protection.

[ Reply to This | # ]

Government should use the GNU FDL for documents
Authored by: GLJason on Wednesday, July 07 2004 @ 02:07 PM EDT
If laws and decisions could be copyrighted by the US Government but released under the GNU Free Documentation License. That would guarantee our rights to freely (or commercially) distribute them.

[ Reply to This | # ]

Here's something we can all get our teeth into:
Authored by: Anonymous on Wednesday, July 07 2004 @ 02:51 PM EDT
"Pira tes Prey On World's Software"

hmm.. "world" == "Microsoft"?

    "...Thirty-six percent of all computer software installed worldwide last year was pirated, costing the industry $29 billion in lost revenue, an industry alliance said Wednesday."

    "The problem is worsening, in part because of increased file-swapping over the Internet, said Jeffrey Hardee, Asian regional director for the Business Software Alliance, backed by industry giants such as Microsoft and IBM."

From the BSA's own mouth:

    "...Lowering the piracy rate will stimulate local economic activity, generate government revenue, create job growth and cultivate future innovation...?

Yeah.. the local economies of China, Viet Nam, Singapore... I'm sure that's where the BSA has the focus of its concern.

Maybe if the BSA could stamp out software piracy, Ballmer wouldn't have had to announce $1,000,000,000.00 in budget cuts for poor, cash-strapped Micro$oft just recently...

t_t_b

---
Release the missing Exhibits!

[ Reply to This | # ]

Okay here's a question
Authored by: Anonymous on Wednesday, July 07 2004 @ 02:54 PM EDT
After reading Lessig's blog and the discussion about the applicability of the
DMCA to this particular work, and more to the point whether the 1st clause of
the DMCA allows for circumventing the protections because this the constitution
is not copyrightable, I have this question:

If the DMCA prohibits reverse engineering of copy protection because that
reverse engineering could be used illegally, how can it be legal to encapsulate
a PD work in DRM? Just because Microsoft sticks a PD work inside a vehicle with
controls doesn't mean the PD work is now legally inaccessible to me. What has
Microsoft added that makes this copyrightable? Isn't DRM supposed to protect
copyrighted works from misuse?

I think LFN is right, this is a great opportunity for some enterprising
tehcnologist to hack the DRM and print/distribute copies of the Constitution to
others. I'd love to see someone get sued for distributing copies of the US
Constitution. I think it would point out the major problem with DRM and possibly
get a court to deal with it? One can only hope...

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"De-proprietizing" proprietary public-domain works?
Authored by: Dr.Dubious DDQ on Wednesday, July 07 2004 @ 02:56 PM EDT

I've been thinking about this for years now, actually. If a proprietary company puts out, say, a DVD of a public-domain movie (say, the 1923 silent film "Metropolis")...what does one have to do to be able to legally copy and redistribute it?

Obviously it's not generally feasible to track down an original film reel to copy (and even if you do, and the original reel is still in condition that can be safely run through a projector, and even if the owner of the original is willing to allow it, the equipment necessary to make the copy doesn't strike me as being readily available to normal people), so for very old works (which for the most part is all that the US and the EU seem will ever allow to be public domain ever again) the only way normal people can get them to exercise their public-domain rights is through a proprietary company...

DMCA issues pushed aside for later, in the "Metropolis" example, presumably the DVD publisher has added a soundtrack, and possibly has colorized the video, so those elements would make the DVD a derivative work, much as formatting and fonts and so on make a new version of a book from a public-domain text a protected derivative work.

In the case of the book, the "contents" are public domain, but certain "protected" elements (font, layout, etc.) being "mixed with" the public domain portion means you can't simply photocopy it and pass out the copies (because you'd be redistributing the copyright-protected elements along with the public domain content), so it is necessary to 'filter out' the proprietary part from the public-domain part in order to legally redistribute the book.

So - I can't photocopy the book, but I can re-type it by hand...or presumably I COULD scan each page and feed the images to an OCR program, and redistribute the resulting recombined text, which would no longer have the fonts, page numbers, layout, etc. of the printing from which I made it.

What I want to know is - what parts of the new "Metropolis" DVD (for example) need to be filtered out to make a legally-redistributable work? Certainly, it's quite simple to leave out the soundtrack and 'strip out' the colorization to return to a silent black-and-white video. But unlike the book, there are other issues - is the file format part of the "derived work"? Are the blocky artifacts (old B&W video with the highly variable brightness and so on seems not to compress too well...) inadvertently introduced into the picture part of the "derived work"? If the DVD company uses some sort of proprietary algorithm to sharpen or clean up the picture is THAT copyright-protectable? (and if the proprietary algorithm is such that I either don't know or can't legally use the algorithm to exactly reverse its effects, is it presumed that there is no way to actually "remove" it? If I use some other algorithm to "de-enhance" the image is it still "built on" the original enhanced image and therefore a violation of copyright to redistribute?)...

I keep thinking it'd be nice to be able to find that out, but as far as I can tell in the US, the best you can reasonably do is to pay a lawyer to give you an "opinion" on whether or not something is legal. In order to get an actual judicial opinion, you seem to have to actually DO the act in question and THEN you can apply for a declaratory judgement (or wait for a lawsuit). So, in other words, it seems like if you want to know if something is legal in the US, you have to do it and then go to court. If you don't lose a civil suit and/or end up in jail, then it was legal, and if you're not bankrupt maybe you can afford to continue doing it. (Why am I reminded of the stories of witch trials in the 1700's?....)

Incidentally, I've been hoping to find places where I might get good quality copies of public-domain works that I could redistribute at will or maybe even try to make derivatives of, but so far the best I have found (other than the "ephemera" at archive.org) is "retrofilm.com", who refuse to make the works available in 'consumer-accessible' formats - you need to have broadcast-studio-quality equipment, and presumably be able to pay them broadcast-studio-sized fees for reproducing the works. (As a private business, I respect their right to choose to operate this way - I just regret strongly that there appear to be no equivalent alternatives that *I* can use...). This leaves me with only the possibility of finding DVD's or (less desirable, harder to use) old VHS's of public domain works, which is of course the impetus behind my wondering about all of this...

Browsing retrofilm.com, I see a lot of works, including a number of classic cartoons* [some in color, including, much to my amusement, some Disney(r) cartoons - including something entitled "W onderful World of Color], are ones that are still available on VHS and sometimes DVD. It'd be nice to be able to redistribute and/or build off of them.

Of course, the fact that even if I find a way to certainly strip all added copyright-protectable elements that the DVD publisher added to "Metropolis", the DVD publisher can STILL sue me senseless for violating the DMCA, because I dared to decode the video for an "unnapproved" use...perhaps connecting my VHS player to my video capture card is the only thing I can do?...

(Is it possible to digitally 'de-macrovision' a signal after it has been read from an analog source, or is a macrovision-ruined signal lacking too much of the original to be able to reconstruct?)

* - When I was a child, I resented being told to stop watching cartoons and, for example, go clean my room. I promised myself that when *I* was and adult, I'd watch cartoons whenever I wanted. And, hey, if I can't keep a promise to myself, who else could possibly trust me?...

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More Canopy Shell Games?
Authored by: Anonymous on Wednesday, July 07 2004 @ 03:09 PM EDT
<a
href="http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1
600684464&tid=cald&sid=1600684464&mid=151733"
>
http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&a
mp;tid=cald&sid=1600684464&mid=151733
</a><p>

Help investigate MTI which appears to be implementing some of the same executive
sheltering as SCO. They share many of the same board members. They are the
only other publically traded Canopy Group company.

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GREED IS... well.. you know.
Authored by: Asynchronous on Wednesday, July 07 2004 @ 04:43 PM EDT
RFID is coming.. and someone wants to cash in:
Intermec Technologies, a division of UNOVA that specializes in supply chain technology around barcoding and radio frequency identification (RFID) technology, began litigation against RFID tag and reader manufacturer Matrics last month...

"If the intellectual property claim is upheld, Intermec will want to extract licensing fees from other manufacturers."... Wills is at pains to emphasize Intermec's measured approach (in contrast, for example, to the Linux fight involving SCO)...

The Line56 Article.

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Microsoft and money
Authored by: Anonymous on Wednesday, July 07 2004 @ 05:00 PM EDT
CEO Steve Ballmer of Microsoft said this in a company broadcast...

"Some employees have asked why we can't use some of our $56 billion in cash
to avoid making the benefits changes. Using the cash reduces profits, which
reduces the stock price. The cash is shareholders' money, so we need to either
invest in new opportunities or return it to them," he said.

I say watch this amount carefully. Given the right motivation, they will stop at
nothing to touching this cash. Return it to them? Or Invest? How so? Through
litigation?

Their time is not now. But I suspect it is coming soon.

"Nothing breeds confidence like success—success in the hearts and minds of
our customers, and success versus competitors, be they established, open source
or startups. We must continue to compete as relentlessly as ever, while also
reflecting our industry leadership responsibilities …"

Direct competition with Open Source. And nothing takes away Microsoft's
confidence (or Steve's for that matter) like sucessful implementation of Open
Source, say like in Germany?

"We gained server market share, as did Linux, and are poised for more
progress. Open-source software products have yet to provide meaningful customer
value on the client compared with our offerings."

Hah. You mean you are not able to come up with original FUD against Linux and
Open Source?

"Turning to the threat posed by the open-source Linux operating system,
Ballmer said Microsoft knows how to compete with Linux through innovation,
quality support execution and facts-based customer education."

And I know how to compete with Microsoft. Do what Steve says here, except tell
the REAL truth, not the perceived truth. I and every one of you needs to do that
truthfully. And you will walk on a street of gold in your heart. And Linux and
Open Source will win.

'Addressing the fact that many customers are shunning new products and
continuing to use their legacy systems, Ballmer said Microsoft needs to work to
change a number of customer perceptions, "including the views that older
versions of Office and Windows are good enough and that Microsoft is not
sufficiently focused on security.'

So they need to step up their FUD on Linux, Open Source, and tell their graphics
department to brighten up the screen on Longhorn and change it so it looks new
and improved.

I could go on and on... I have better things to do. Like write more open source
code.




[ Reply to This | # ]

Doesn't the law overide what i "sign"
Authored by: tizan on Wednesday, July 07 2004 @ 05:22 PM EDT
what copyrightable elements there could be in there, but it sounds like there might be some, from the description. But the real danger is that once you click, I agree, you are probably doomed. Companies have been systematically working to set up the laws and the tech to make sure you can't do anything without serious, mind-boggling risks. Isn't it that even if i sign that people are allowed to kill me....in the law killing me is still a crime ? If so should not the law overrides the "I agree" that i do ?

---
tizan: What's the point of knowledge if you don't pass it on. Its like storing all your data on a 1-bit write only memory !

[ Reply to This | # ]

My email to the state about this:
Authored by: davep on Wednesday, July 07 2004 @ 05:49 PM EDT
(Being an Oregon resident, I decided to write them about this.)

I am writing in regards to the copyright statement you have posted on your
website, at:

http://arcweb.sos.state.or.us/rules/terms.html

In this statement you claim that the Secretary of State holds the copyright to,
and can restrict the publication of, the Oregon Administrative Rules
Compilation.

Denying the public free, unrestricted access to the laws of the land does not
seem to be in the public interest. As a taxpayer who helped fund the creation
of these rules, I am appalled that the state feels it can restrict what I choose
to do with them.

The law is pretty clear that the regulations are not copyrightable. Federal
administrative rules are specifically excluded from copyright by 17 USC 105, and
the Supreme Court ruled in Banks v. Manchester (128 U.S. 244 9 S.Ct. 36 (1888))
that the State of Ohio could not obtain a copyright for judicial opinions and
court proceedings.

Although not in this district, I would direct you to the decision in Veeck v.
SBCCI (No. 99-40632) by the 5th Circuit Court of Appeals, available online at:

ftp://opinions.ca5.uscourts.gov/pub/99/99-40632.cv2.wpd.pdf

Citing Banks, the 5th circuit wrote: "Banks represents a continuous
understanding that 'the law,' whether articulated in judicial opinions or
legislative acts or ordinances, is in the public domain and thus not amenable to
copyright."

In light of the above, I would encourage you to reconsider the copyright notice
on your site. The law is pretty clear that the Oregon Administrative Rules are,
in fact, in the public domain, and the copyright notice on your site should
reflect this.

[ Reply to This | # ]

OT: software patents
Authored by: Anonymous on Wednesday, July 07 2004 @ 06:07 PM EDT
Software Patents Under Seige in Europe

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Wednesday, July 07 2004 @ 06:17 PM EDT
You can get high-resolution unecumbered tifs of the original documents from the National Archives. They also have transcripts available. All unprotected (gasp)

[ Reply to This | # ]

OT: Hatch Inducement Bill
Authored by: Anonymous on Wednesday, July 07 2004 @ 07:40 PM EDT
Big companies like Sun and Intel signed a letter to Hatch asking for hearings on the bill:

link

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OT: Ken Lay Indicted
Authored by: red floyd on Wednesday, July 07 2004 @ 07:47 PM EDT
OT, but may have relevance to the eternal question, "Will Darl ever do a perp walk?"...>

The LA Daily News has an AP story claiming: Ken Lay Indicted in Enron Collapse

---
The only reason we retain the rights we have is because people *JUST LIKE US* died to preserve those rights.

[ Reply to This | # ]

Fighting Back - The Grokster US Constitution Reader
Authored by: moogy on Wednesday, July 07 2004 @ 08:37 PM EDT

I'm very impressed that M$ can put their huge programming resources into providing the US Constitution with DRM! --- Not!

So, in a matter of a couple hours I threw this together.

The Grokster US Constitution Reader

Screenshots: PNG 9Kb    JPG 43Kb

Requires Tcl/Tk and uses the Guttenberg Project text (included).

Nothing fancy here. I was going to add a search utility and more, but it's really only to make a point. The point being is that I/we don't need such 'innovation' sold to us.

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi

[ Reply to This | # ]

OT: So what's fair?
Authored by: Jude on Wednesday, July 07 2004 @ 08:43 PM EDT
The FTC has admonished Gateway Learning (maker of "Hooked on Phonics") for providing
customer information to telemarketers after it had promised not to do so:

Hooked on Phonics caught selling info

What caught my eye was the quote from Howard Beales, head of the FTC's consumer
protection division: "Changing the rules after the game has been played is unfair".

I'll be writing a letter to Mr. Beales to point out that what he calls "unfair" is routine
procedure for Microsoft, who forces their customers to accept changes to the license
terms each time they install a patch.

It's bad enough that people can't read the product license until after they've paid and
left the store, but at least they have (in principle) the right to return it for a refund if
they don't like the license. Refusing patch EULA's isn't a viable option with a product as
buggy as Windows, so the customer is coerced into accepting new terms well after the
option of claiming a refund has passed.

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Microsoft, DRM, David Boies, and the US Constitution
Authored by: blacklight on Wednesday, July 07 2004 @ 08:46 PM EDT
"In short, it was a debacle, or as Matthew Bender's attorney put it, the
rulings "terminate the litigation very successfully for our clients."
That's how lawyers talk when they are gloating." PJ

We are sitting pretty, what with David Boies going after us: my worst nightmare
would have been David Boies on our side - It may be a hasty impression on my
part, but I am getting the feeling that the guy just doesn't believe in showing
up to court prepared.

Between Kevin McBride's track record of losing small cases (my unkind
speculation, folks) and David Boies' track record for losing high profile cases,
the SCOG legal team has all their bases covered and all possible outcomes taken
care of.

[ Reply to This | # ]

First Sale, was: Re: Microsoft, DRM, David Boies, and the US Constitution
Authored by: tanner andrews on Wednesday, July 07 2004 @ 10:14 PM EDT

Certainly there could be a problem if Jurisline agreed to a license or made some sort of representation to induce sale of cd-rom. A contract is a contract, and the agreement to give up a right which one might otherwise enjoy is recognized under the law as one form of consideration.

What would be necessary is to obtain a case law cd-rom, with the opinions in some usable form (e.g. text). Do not run any installer that requires one to say ``I agree'' in any form. Do not make representations beyond ``here is my money'' to purchase the cd-rom.

From that cd-rom, then, you might reasonably extract the portion that was in the public domain, e.g. government works such as the actual court opinions, without editorial enhancement. Clearly it would not be legal to copy the portion that was original, copyrightable work.

So long as no other contract terms are in effect, there is no reason to believe that you would want to agree to any sort of license. What consideration would you receive, beyond having the material you already have through First Sale? Surely, if I buy a copy of a work that is in the public domain, I may perform that work -- even if the seller or publisher wishes that I not do so. If the publisher has added pictures, I'm free to ignore them, or cut them out (since I own the book), burning them in the fire place and retaining only the public domain text.

I see no basis to distinguish between a dead-tree book of public domain material and a cd-rom of public domain material. Of course, I'm not a lawyer, and a real lawyer retained by a publisher would surely disagree with me.

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Public Access to Legislation
Authored by: Wesley_Parish on Thursday, July 08 2004 @ 12:23 AM EDT

I just found recently in New Zealand a copy of various laws online:

The Public Access To Legislation Project.

Interim Website of New Zealand Legislation

Statutes | Statutory Regulations | Local & Private Acts | Bills from the Knowledge Basket

Kia ora. This website provides free public access to unofficial versions of New Zealand statutes (Public, Local, and Private Acts) and Statutory Regulations. You can search and browse this material free of charge.

This website is provided by the New Zealand Parliamentary Counsel Office/Te Tari Tohutohu Paremata (PCO) in association with Brookers, as part of the Public Access to Legislation (PAL) Project. The website is hosted and maintained by Brookers, and is updated monthly.

The legislation on this website is sourced from Brookers. The New Zealand Government is not responsible for, and does not endorse, the material on this website or any of the services or products referred to on this website.

This is a temporary website. When the PAL Project is completed, this website will be replaced by an official PCO website that will provide free public access to New Zealand legislation, including Acts, regulations, and Bills.

Read more about the Public Access to Legislation (PAL) Project

It may be the sort of thing the grassroots in the States, etc, need to do. Still haven't got the cases online though - that should be the next step.

And better to do the hard yards yourself, rather than relying on the generosity of the well-heeled legal firms, since they also specialize in suing customers.

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

Microsoft, DRM, David Boies, and the US Constitution
Authored by: Anonymous on Thursday, July 08 2004 @ 02:13 AM EDT
The actions of the RIAA and similar using the word "Theft" incorrectly when refering to copyright matters makes the confusion worse - which is their intent no doubt.

I've noticed that the less something contriubtes to the world, the more it tends to be bound up and protected by IP law and restrictive licenses. The solution to this problem is very simple. Where ever possible, don't use overly restrictive IP. For instance, some of the newer CDs are using DRM to "protect" the music on the CD. Don't buy it. I never go to movies anymore. I can't stand to support the MPAA and their IP landgrab tactics.

Until John Q Public starts to gave a farthing about their IP rights, the MPAA, RIAA, and others will continue to eat away by using restrictive licenses, getting new laws passed, and using the FBI as their private police force.

The power to stop it is in your hands. Are you going to use it, or continue to be on the short end of the stick when Disney, Sony, and others want something more?

[ Reply to This | # ]

OT: EU software patent law votes in doubt
Authored by: cheros on Thursday, July 08 2004 @ 03:55 AM EDT
If you think the Dutch were brave pulling a vote - it turns out they actually opened quite a serious can of worms.

"PARIS. The adoption of a European Union law on software patents could be in doubt after accusations of missteps and mishaps during a May 18 meeting of the EU Competitiveness Council in Brussels.

Officials in a number of European countries say that votes cast by ministers during the meeting to hammer out political differences did not reflect the position of their governments."


= Ch =

[ Reply to This | # ]

IBM-190.pdf as text
Authored by: JeR on Thursday, July 08 2004 @ 05:27 AM EDT
http://www.xs4all.nl/~roo versj/IBM-190.pdf.html. Original is here. Proofreaders are welcome to attach their corrections to this comment.

Also available (but not transcribed yet): IBM-189.pdf. Who is taking this one? Claim it in a comment attached to this comment.

[ Reply to This | # ]

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