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Comment: This can't be about the Fourth Amendment... (Score 1) 96

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

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

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

Comment: This is a radical decision (Score 1) 303

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

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

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

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

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

Comment: Unimpressive (Score 2, Informative) 438

by werdna (#39716873) Attached to: Will Write Code, Won't Sign NDA

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

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

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

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

Comment: Re:Obama nominee, of course (Score 1) 333

by werdna (#35670728) Attached to: RIAA Lobbyist Becomes Federal Judge, Rules On File-Sharing Cases

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

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

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

Comment: Microsoft Patent No Defense to i4i (Score 1) 146

by werdna (#29121817) Attached to: i4i Says OpenOffice Does Not Infringe Like MS Word

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

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

Polymer physicists are into chains.

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