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Submission All Malibu Media subpoenas in Eastern District NY put on hold

NewYorkCountryLawyer writes: A federal Magistrate Judge in Central Islip, New York, has just placed all Malibu Media subpoenas in Brooklyn, Queens, Long Island, and Staten Island on hold indefinitely, due to "serious questions" raised by a motion to quash (PDF) filed in one of them. Judge Steven Locke's 4-page Order and Decision (PDF) cited the defendant's arguments that "(i) the common approach for identifying allegedly infringing BitTorrent users, and thus the Doe Defendant, is inconclusive; (ii) copyright actions, especially those involving the adult film industry, are susceptible to abusive litigation practices; and (iii) Malibu Media in particular has engaged in abusive litigation practices" as being among the reasons for his issuance of the stay.

Comment Re:Without government... (Score 0) 470

You know the only thing worse than an Uber driver? A hippie bicyclist complaining about the Uber drivers.

Free market, bro. Surge pricing works because there is a limited availability, high demand, and the company is charging what they can get away with.

Scheduling pickups? As someone who travels every week, I can certainly relate to this. But then what's stopping you from canceling and just paying the $5 fine or whatever? Or what happens if Uber is unable to have a driver pick you up? Given the complexity involved in scheduling systems, they probably find it easier to do "point in time" scheduling, which works for their business model. 80/20, and the number of folks who want to schedule are much, much smaller and the effort required to arrange for it is probably significantly larger.

Seriously, though. I am glad that Uber is here to disrupt the cab industry, with their dirty cabs, rude drivers, and propensity to hate credit cards.

Comment Re:You're naive. (Score 1) 411

Given the emissions requirements for a '59, I'm skeptical.

Kind of like naming the coal exports from North America---in 1491 . . .

(for those of you younger than the cars I prefer to drive, a '59 isn't exempt from emissions for being old enough; it doesn't have to, as there *were* no emissions standards or tests until a few years later. [now, if he put in an engine from a later year, he has to meet *those* emissions, but then the year of manufacture is irrelevant. ])


Comment Re: How is this paid for? (Score 1) 1291

That's why their leaders come to the USA for treatment.

As an American, I don't see how I benefit from a health care system that according to you is good at providing care to the wealthy and powerful of the world, but which we also know is crappy at providing care to the rest of us. Are you suggesting that good health outcomes for select individuals trickle down?

If a health care system that worked better for the vast majority of Americans happened to also discourage the elite from treatment here, I'm prepared to live with that. In no small part this is because under the current system I might not wind up living at all.

Comment Re:Uh, okay (Score 1) 142

I am a lawyer, but this is not legal advice. If you want legal advice from me, pay my retainer. If you get legal advice on slashdot, may God have mercy on your soul.

Most (I believe almost all) other english speaking countries tend to follow the English Rule where it diverges from the American Rule. They may have areas which are largely changed, but I think the US is pretty much alone in the variations on defamation, contingency fees, and loser pays.

hawk, esq.

Comment Re:If I were king.... (Score 5, Informative) 70

The last time somebody tried this was the Library of Alexandria which required the dictates and commands of several kings. Even then they had to pay money to the Athenians to get some documents.

Well, that was because the Library wanted to make a copy of the original manuscripts of Aeschylus, Sophocles and Euripides. Athens was reluctant to allow the manuscripts to be sent to Alexandria (presumably they would've preferred to have them copied in Athens), but ultimately allowed it provided that the Library provided a cash deposit to ensure the safe return of the manuscripts.

Instead, predictably, the Library kept the originals and returned the copies, and was happy to forfeit the money, which was almost 500 kilograms of silver.

The normal M.O. of the Library was just to require that all documents going through Alexandria be available for copying by the Library, and to be a major port and trading hub so that a lot of documents happened to pass through.

It all worked pretty well (for a library that relied on hand-copying, the printing press not being invented yet) until some assholes burned the place down.

Comment Re:Sorry, but Apple still deserves most of the cre (Score 2) 354

Eject a disk by moving it from my desktop to the trash with all the files I want to delete? Makes sense.

Well, to understand this, you have to recall that early Macs had to be able to run off of a single floppy drive. Users might buy a hard drive or a second floppy drive (or if they had a dual-floppy SE, a third floppy drive for some reason) but it couldn't be relied on. Yet they still had to be able to tolerate having the OS disc ejected at times.

So there was a distinction between physically ejecting a disc while keeping it mounted (which was represented onscreen by a greyed out disc icon) so that you could copy to it, and both physically ejecting _and_ dismounting a disc.

The formal way that you were supposed to do this was by using menu commands. The Eject command was for eject-but-keep-mounted while the generally ignored Put Away command was for eject-and-dismount. It was also possible to use Put Away on an already greyed out, ejected-but-mounted disc icon.

User testing showed that this was inconvenient, and one of the OS developers eventually created a shortcut for the Put Away command, which was to drag a disc icon to the trash. It wound up being so popular that it shipped.

Apparently there had been some thought at the time about changing the Trash icon into some sort of Eject icon in the case of ejecting a disc, but apparently this was felt to be confusing or too difficult, so it wasn't done. In OS X the idea was revisited, and now the Trash icon does turn into a standard Eject icon when you're dragging a disc.

In any case, in real life, whatever confusion dragging disc icons to the trash might have caused, everyone got over it basically immediately.

Switching tiled applications makes the one menu bar change? Sure. It's not like moving the cursor half the screen for each click is a waste of time.

It's not; since there's nothing above the menubar, you can just slam the mouse up. It turns out to be faster and easier than having multiple menu bars. The Mac and Lisa groups did consider per-window menubars, but having tested the idea, it was rejected. For example, here's some polaroids of a screen from 1980 showing a Lisa with a menu attached to the bottom of a window: Later that year, the menu had moved to the top of the windows: And early the next year, it finally settled at the top of the screen:

Comment Re:Half the story (Score 1) 213

For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much of a chance.

Ha, no. They would destroy you so utterly that even brave men would only whisper about you when safe behind locked doors, and as for the store itself, it would be smitten so hard that nothing but twisted weeds would ever grow on that spot again. You might want to read up on trademark dilution.

Comment Re:Half the story (Score 2) 213

It depends.

There's really no such thing as a copyright on a character; there's just copyrights on works, which characters may be part of. Also, where more than one work is at issue, note that the copyright for derivative works only applies to new material added in the derivative work; it doesn't protect the pre-existing material at all.

Not all characters are defined well-enough to be protectable by the copyright to begin with. The degree of characterization matters. A character that's nothing more than a chessman could get reused pretty freely. An extremely well-defined character probably couldn't be. This is like the difference between a butler that did it, but about whom nothing else is told in the book, and a well-defined butler (well, valet, technically) like Jeeves, where we know a lot about him (preferred foods, what he reads, his club, things he knows about, etc.)

So assuming a protectable character, the issue basically boils down to whether the first work in which that character appeared is in the public domain. If it is, then the character -- as he was defined in the public domain material -- is fair game. Otherwise, you'd just be making a derivative of a copyrighted work, which is infringing. Remember, character attributes that first appear in works that are still copyrighted are not available.

As for a trademark, it would unavoidably be lost in this scenario. A trademark can only exist where it serves to indicate that goods bearing the mark originate from a particular source. Since copyright law would allow anyone to make copies or new works which included the mark, and since in the event of conflicts, copyright law trumps trademark law (many people in this discussion have noted the Supreme Court's opinion in Dastar on this point), the mark could no longer indicate that copies shared a common source, and so it would become an unprotected generic mark. If that were not so, the trademark would act like a copyright, which would be unconstitutional.

Comment Re:Half the story (Score 1) 213

Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.

Actually, it's usually not a problem. Here's the Supreme Court, weighing in in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003). The thing to know about the case is, there was a tv series based on a book; the book was copyrighted, but the tv series' copyright hadn't been renewed (back when that was a thing), so it had entered the public domain. Dastar made copies of the public domain tv show and sold them. Meanwhile, Fox got the tv rights to the book, then made copies of the tv show and sold them. Fox sued on trademark grounds (specifically section 43 of the Lanham Act).

It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product -- one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing off (or reverse passing off) of his creation as does the publisher. For such a communicative product (the argument goes) "origin of goods" in 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or -- assertedly -- respondents).

The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938). "In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying." TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23, 29 (2001). The rights of a patentee or copyright holder are part of a "carefully crafted bargain," Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150-151 (1989), under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution. Thus, in construing the Lanham Act, we have been "careful to caution against misuse or over-extension" of trademark and related protections into areas traditionally occupied by patent or copyright. TrafFix, 532 U. S., at 29. "The Lanham Act," we have said, "does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity." Id., at 34. Federal trademark law "has no necessary relation to invention or discovery," Trade-Mark Cases, 100 U. S. 82, 94 (1879), but rather, by preventing competitors from copying "a source-identifying mark," "reduce[s] the customer's costs of shopping and making purchasing decisions," and "helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product," Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (1995) (internal quotation marks and citation omitted). Assuming for the sake of argument that Dastar's representation of itself as the "Producer" of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under 43(a) for that representation would create a species of mutant copyright law that limits the public's "federal right to 'copy and to use'" expired copyrights, Bonito Boats, supra, at 165.

When Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the Lanham Act's ambiguous use of "origin." The Visual Artists Rights Act of 1990, 603(a), 104 Stat. 5128, provides that the author of an artistic work "shall have the right ... to claim authorship of that work." 17 U. S. C. 106A(a)(1)(A). That express right of attribution is carefully limited and focused: It attaches only to specified "work[s] of visual art," 101, is personal to the artist, 106A(b) and (e), and endures only for "the life of the author," 106A(d)(1). Recognizing in 43(a) a cause of action for misrepresentation of authorship of noncopyrighted works (visual or otherwise) would render these limitations superfluous. A statutory interpretation that renders another statute superfluous is of course to be avoided. E. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988).

[The Court found that the Lanham Act did not prevent Dastar from selling copies of the public domain video, and then said:]

To hold otherwise would be akin to finding that 43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U. S. 186, 208 (2003).

If it has syntax, it isn't user friendly.