DISQUS

Jim,

What's your position on DNSSEC?

If Verizon's sale of typos conflicts with user security, who do you support?

This provides an apt visual metaphor for the effect of the Progress clause on the power granted to Congress by the Commerce clause.

Read very broadly, the Commerce clause power might be construed to encompass the grant of power explicitly provided by the Progress clause. But this very broad reading would be an error. This is a constitution being construed. The several clauses of Article I, Section 8 must be read in the context of the entire section. The Commerce clause may not be read to render the Progress clause superfluous.

The grant of Congressional power in the Commerce clause omits the powers granted by the Progress clause.

And where the Progress clause contains a limitation on the grant of Congressional power, the Commerce clause must not be read to circumvent that restriction.

Jim S,

If you have a specific duty of confidentiality towards me, created by contract, privilege or otherwise, then I decline to waive your duty.

But in the general case, absent a specific duty, then there is simply no remedy against a member of the general public for their publication of a truthful fact.

In the specific case under discussion here, AACS LA, their agents, and others operating under their authority knowingly, willfully and voluntarily published their supposedly "secret" number. They have no right at all to object to the public's discussion of their revealed "secret".

Publishing a truthful fact is not civil disobedience. Not in America.

Civil disobedience is a protest against an unjust law. But Congress simply lacks the power to abridge people's freedom to print truthful facts. Hence, no law broken—and no civil disobedience.

One of the weaknesses of newspapers is that I have to buy the entire newspaper, which comes bundled with the work of dozens of different writers.

Actually, if subscription revenues are to survive at all, then imho news organizations need greater consolidation.

I'm unlikely to ever subscribe to Times Select.

But I'd be strongly tempted to subscribe to a package of what is today at least 200 major news outlets: Two or three flagship “global” news outfits, a few more “national” publications, plus print and video from all 50 state capitals and at least 50 national capitals in the developed world. Add in to that mix 10 or 20 magazines, and some short fiction, and you've got something I'd pay for even though I'd probably read less than one-hundredth of one per cent of it.

A few major newspapers in partnership with the wire services almost have the scale to bring something like this off. But they really seem stuck in the teletype age—still losing ground to their bitter enemies from the upstart TV competition.

Arggh, obvious (I hope) markup problem with my previous comment. Three (partial) paragraphs were quoted from the DOJ Amicus brief.

It looked good in preview.

So, since State Street, what new subject matters besides business methods and software have inventors been granted patents for? I'm just curious.

For example, see the DOJ Amicus Brief in LabCorp v Metabolite:

[...] In sum, the court of appeals held that anyone who thinks about the relationship between elevated total homocysteine and cobalamin or folate deficiency after obtaining the results of a total homocysteine assay infringes the patent claim.

The claim's breadth is further underscored by the jury's findings and the relief awarded, which suggest that doctors infringe the patent claim whenever they review the results of total homocysteine assays, regard less of the purpose for which they ordered the assays. The district court instructed the jury that it should find petitioner liable for contributory infringement if, among other things, the total homocysteine assays performed by petitioner were not "capable of substantial noninfringing use." By finding petitioner liable for contributory infringement, the jury necessarily concluded that no substantial non-infringing uses of the total homocysteine assays had been proven on the trial record.

In so concluding, the jury implicitly rejected peti tioner's contention that many of the assays did not in fringe because doctors ordered them for purposes other than diagnosing cobalamin or folate deficiency. Petitioner had argued that the assays were used primarily to diagnose other conditions, especially heart disease. Respondents' witnesses countered that, whatever the motivation for the assay, it would be "malpractice" for a physician not to perform the correlation upon viewing a total homocysteine assay, and that the other conditions associated with elevated total homocysteine are treated with supplements of cobalamin or folate in any event. [...]

(citations omitted)

Also see Justice Breyer's
dissent (joined by Justices Stevens and Souter).

So, roughly, a patent has been granted on a medical doctor's diagnosis of a patient.

[...] the VHDL for a patented ASIC [...]

Is your argument that Pellegrini v Analog Devices was wrongly decided?

Or are you arguing that Congress should revisit 35 USC �§ 271(f)(1)?

Further, what do you mean “intrinsic part”? How do propose to distinguish between VHDL and MP3's?

And, more generally, how do you propose the courts should deal with the consequences of Rice's theorem? Pretend it doesn't exist? Or implement a depth-limited search followed by flipping a coin? Wouldn't that be intrinsically arbitrary, capricious and unreasonable?

And by the other way, homeomorphisms should have the status of physical identities under the law, of course.

If any graph A is homeomorphic to some graph B, then THE LAW should regard A exactly as if it were B? Under all circumstances, or only in the context of patent law?

Please explain further.

The Supreme Court allowed software patents provided the software meets a funky �§ 101 requirement.

From the oral arguments (p.13):

<pre>
11 JUSTICE SCALIA: You can't patent, you know,
12 on-off, on-off code in the abstract, can you?
13 MR. OLSON: That's correct, Justice Scalia.
14 JUSTICE SCALIA: There needs to be a device.
15 MR. OLSON: An idea or a principle, two plus
16 two equals four can't be patented. It has to be put
17 together with a machine and made into a usable device.
</pre>

And on p.27:

<pre>
17 JUSTICE STEVENS: Your time is up, but I
18 want to ask you one yes or no question. In your view is
19 software patentable?
20 MR. JOSEFFER: Standing alone in and of
21 itself, no.
</pre>

And on p.29

<pre>
10 MR. WAXMAN: ... [F]irst of all, we all agree
12 that software code in and of itself, removed from a
13 physical structure, cannot be patentable ...
</pre>

So petitioner, respondent and the United States all agree that software is not patentable in the abstract.

[A]n FPGA straddles that fuzzy line: a series of ones and zeros rewires the device's components.

Can we agree that in an SRAM-based FPGA, charges on the gates of CMOS devices control the operation of the transmission gates comprising the interconnect fabric?

Can we further agree that the arrangement of these charges, at a sufficient level of abstraction and generality can be modelled by the elements in a boolean algebra?

And finally, can we agree that while money may be fungible, and electrons may be quantum indistinguishable, and the elements of a set may be unique—notwithstanding all that, a homeomorphism is not necessarily a physical identity?

My favorite part of the Philips brief came on p.8 (p.13 in PDF) where the brief quotes from Eolas Techs. Inc. v. Microsoft Corp.:

On a functioning computer, software morphs into hardware and vice versa at the touch of a button. In other words, software converts its functioning code into hardware and vice versa.

The implied gloss on this “morph” seems to be “PFM” (pure magic).

Latest news...

From US ACM Policy Blog TGDC Reverses Course, Finishes Meeting (5 Dec 2005):

As I suggested in yesterday's post the Technical Guidelines Development Committee (TGDC) did revisit the software independent proposal during today's session. It was the first item, and by unanimous consent a revised resolution was approved requiring that the next generation of voting machines approved under the next Voluntary Voting System Guidelines (VVSG). The revisions, as best as I can tell, were meant to address two main concerns from yesterday's session.

Anne Broache, CNET, confirms this news under the headline “Panel changes course, approves e-voting checks”. (Hat tip Jim Horning.)

And Michael Hickins, internetnews.com, reporting under the headline “Election Officials Adopt Compromise on Standards”, adds that:

According to persons familiar with the situation, Rivest spent the evening lobbying members of the TGDC and crafted compromise language that was passed unanimously this morning.

So a cheer for Ron Rivest.

[I]t's equally clear that the governor didn't intend to make the files publicly available. So it's not crazy to argue that it's unethical to release them public. But I don't think that argument really works.

Slow down.

If there wasn't any notice that the governor's staff intended to keep the files private, then whatever they may have thought is utterly immaterial. Iow, it may very well be crazy to argue that it's “unethical”—let alone criminal— to release them publicly.

According to Laura Kurtzman's September 12th AP report, the governor's communications director has claimed that the files were protected by a pop-up, but this claim has been denied by the
Angelides campaign:

[Adam] Mendelsohn said the Angelides campaign staffers should have encountered a pop-up warning before downloading the audio file.

Amanda Crumley, communications director for the Angelides campaign, said the researcher who downloaded the file never received such a warning.

"If they have a pop-up window, that's something they've added now," she said.

There aren't any further details on the mechanics of this supposed pop-up window, but imho, just for instance, it's unreasonable to assume that everyone must browse with javascript turned on.

Anyhow if turns out that there wasn't any real notice, then calling the CHP to investigate a “hacking incident” was at best a waste of time.

As Anderson acknowledges, Instapundit, Daily Kos, Atrios, and other blogs at the top of the blogospheric totem pole link and quote one another promiscuously, with nary a word about copyright protection.

I seldom frequent the huge “shopping mall” blogs like Glenn Reynolds &c, so I'm not exactly sure just what “quote one another promiscuously” really means. But how is quoting an excerpt even from a New York Times editorial, for the purpose of commentary and criticism, anything other than a fair use? Why is copyright even entering the picture here?

Thanks for the pointer, Tim.

I'm still reading, but I note that on p.118 (p.18 in PDF), Professor Wu observes:

[A]s our Japanese friends found out, the personal computer did not merely complement the mainframe, but ultimately replaced it.

This is simply wrong.

See, for example, just from the first result of a quick Google search, Stephen Shankland's article “IBM's 'T-Rex' bites into server market” (CNET, 27 Feb 2004):

In the market for servers costing $250,000 and up, IBM's mainframe revenue increased 30 percent to $1.8 billion from the fourth quarter of 2002 to the fourth quarter of 2003, according to Gartner. In contrast, the overall market for servers of that price grew 8 percent to $4.9 billion, the market researcher said.

Mainframes just keep on rockin'.

[W]ould it be more profitable to let all VoIP services deteriorate so consumers place a higher value on traditional phone services?

The ability to profitably reduce output may indicate market power in an antitrust analysis.

1 s/Hearland/Heartland/

Hi Hance,

Do you write your essays using emacs or vi?

Perry,

"Plagiarism" is a serious charge in journalism.

What exactly, are you alleging that The Register's Thomas C. Greene "plagiarized" from your post?

Noel,

Thanks for the url. It looks like an interesting book.

[...] I'm trying to grasp what everyone one here, as Libertarians, refers to [...]

Fwiw, I don't mind being called a Libertarian—might even vote that way, on occasion, depending on the candidate. But I don't usually idenify myself as a Libertarian. And I'm not sure that most others would identify me that way either.

Instead, if I sound like I have libertarian attitudes, it's more that I spent a good number of my formative years growing up in Alaska. That probably might have left me with some ingrained politico-cultural biases, so to speak. You can take the boy out of the last frontier....

The Open Source people are concerned with a business model.

Seth,

I'd agree that most of the core open source promoters are concerned with a business model. But I'd say that the majority of open source developers are more concerned with a software engineering model.

Ms. Daly:

Tim Lee sent me a very nice email Saturday night. I'm afraid I only just read it a few minutes ago—that delay is my fault.

I'm sorry I got mad at you and I apologize for calling you a bully.

My understanding is that the 5,442,758 patent, (issued August 15, 1995, and assigned to Sequent before acquisition by IBM), was licensed rather than donated. But if that's close enough, then here's a starting point.

Ms. Daly:

You are protecting the Timothy Berners-Lee brand name. "Sir Tim" is a valuable property. I can sympathize with your endeavor.

I sincerely appreciate that you have not yet abused the courts with some baseless and frivolous lawsuit—like so many other rights-holders have over the past several years. Thank you for
explaining your position.

If Tim B. Lee wishes, out of kindness and graciousness, to burden his political speech by attaching some disclaimer to his own name, then
that is his affair. And I apologize to him if I may have abused the hospitality of his forum by exchanging harsh words with you here.

But it is manifestly unfair to oblige him to speak or write in furtherance of your goals under
these circumstances. You have no right to compell him to carry your speech at his cost.