Tiffany's has lost its bid to hold eBay liable for trademark infringement of Tiffany's brands taking place on eBay. After a lengthy bench trial (i.e. a trial where the judge, rather than the jury, decides the factual questions), Judge Richard J. Sullivan has issued a 66-page decision (PDF) carefully analyzing the facts and legal principles, ultimately concluding that 'it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites'.

I'm not a huge fan of the GPL. While I agree with the FSF on most things, I can't help feeling that the GPL shows a certain lack of faith in the whole idea - if the open source development model is so much more efficient, and Free Software is so much more valuable, then why do they need such a mass of legalese to protect them?

From a more pragmatic standpoint, the GPL is about the most incompatible Free Software license around. If you write GPL code, you can't use it in a BSD, Apache, X11, MIT, or Mozilla licensed project.

I was fairly happy with the LGPL until recently, however. It is a bit more restrictive than I'd have liked, but as long as you dynamically link to it it doesn't taint your own code. This is a story about the pain caused when lawyers get in the way of writing code.

It turns out that the LGPL, as it stood, wasn't restrictive enough for the FSF's ideology. You can't have freedom without a lot of restrictions (apparently) and so they added a load more to the venerable LGPL 2.1, and created the new, improved, twice as restrictive, LGPL 3.0, and encouraged all GNU projects to upgrade.

One such project, which I'm directly involved with, GNUstep, did so. Then we started having problems. It turns out there's this other license that has a clause stating that it may not be used with any conditions that are not in the license itself. This is the (GNU) GPL. Version 2 of the GNU GPL is incompatible with version 3 of the GNU LGPL, and since it's viral you can't even link code under the two licenses.

That's okay though, right? The FSF has been telling everyone that they should use the 'or later versions' clause when they use the GPL, just in case they want to make it more restrictive in the future. And everyone's done that, right? Well, it turns out, xpdf didn't. And the xpdf code was extracted to form the Poppler library. And the Poppler library, in turn, was wrapped in PopplerKit, an Objective-C framework for rendering PDFs. And so, by the transitive property, all of these GNUstep apps were GPL 2. Which is incompatible with LGPL 3. Which meant that suddenly they couldn't use the latest GNUstep. By the way, PopplerKit isn't the only GPL2-only library used by GNUstep apps.

This is a bit of a problem. So big, in fact, that Debian decided not to carry the latest GNUstep, because it would have meant dropping a load of GNUstep applications from the next release. The eventual outcome? GNUstep has reverted to LGPL2.

This isn't an unusual situation, by the way. A number of big libraries, such as GNU libc (an abomination that needs to die, but for technical, not legal reasons) is having the same problem - the FSF wants to 'upgrade' it to LGPL version 3, but that will mean any Linux distro that ships the new glibc will not be able to ship any GPL 2 apps.

And people wonder why I prefer the BSD license family.

According to commentator Therese Polletti at Dow Jones MarketWatch, "the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers." Among other things she cites the extortionate nature of their 'settlement negotiations' pointed out by Prof. Bob Talbot of the University of San Francisco School of Law IP Law Clinic, whose student attorneys are helping private practitioners fight the RIAA, the illegality of the RIAA's use of unlicensed investigators, the flawed evidence it uses, and the fact that the RIAA thinks nothing of jeopardizing a student's college education in order to make their point, as support for the MAFIAA/Mafia analogy.

Recommended reading for all interested in the RIAA's litigation war against p2p file sharing is the amended class action complaint just filed in Oregon in Andersen v. Atlantic. This landmark 109-page document (pdf) tells both the general story of the RIAA's campaign against ordinary folks, and the specific story of its harassment of Tanya Andersen, and even of her young daughter. The complaint includes federal and state RICO claims, as well as other legal theories, and alleges that "The world's four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music." The point has been made by one commentator that the RIAA won't be able to weasel its out of this one by simply withdrawing it; this one, they will have to answer for. If the relief requested in the complaint is granted, the RIAA's entire campaign will be shut down for good.

Although based in San Francisco, and only an amicus curiae in the Phoenix, Arizona, case of Atlantic v. Howell, the Electronic Frontier Foundation is sending its senior intellectual property lawyer Fred Von Lohmann to Phoenix to argue the Howell case, on behalf of the defendant, who is not represented by counsel. Due to the RIAA's attempt to take advantage of Mr. Howell's being undefended to try to convince the judge that merely 'making files available for distribution' -- i.e., just having them on one's computer in a manner that is accessible to sharing -- and that copying files from one's cd onto one's computer in mp3 format is itself "unlawful", EFF filed an amicus brief in January. Now it's taking the unusual step of actually sending someone to the courthouse to orally argue the motion.

A technology battle is raging in UMG v. Lindor in Brooklyn over whether the RIAA's investigator, SafeNet (formerly known as MediaSentry), which has produced certain *txt printouts, now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the other side. SafeNet and the RIAA say no, the information is "proprietary and confidential". Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought is here (pdf). MediaSentry has produced 'none of the above'. "Put up or shut up" says one commentator to MediaSentry. What do you say?

A federal judge in Connecticut has rejected the RIAA's "making available" theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion (pdf), Judge Janet Bond Arterton held that the RIAA needs to prove "actual distribution of copies", and cannot rely -- as it was permitted to do in Capitol v. Thomas -- upon the mere fact that there are song files on the defendant's computer and that they were "available". This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior.

"A student law clinic is about to cause a revolution" says p2pnet. For the first time in the history of the RIAA's ex parte litigation campaign against college students, a university law school's legal aid clinic has taken up the fight against the RIAA in defense of the university's college students. Student attorneys at the University of Maine School of Law's Cumberland Legal Aid Clinic, under the supervision of law school prof Deirdre M. Smith, have moved to dismiss the RIAA's complaint in a Portland, Maine, case, Arista v. Does 1-27, on behalf of 2 University of Maine undergrads. Their recently filed reply brief (pdf) points to the US Supreme Court decision in Bell Atlantic v. Twombly, and the subsequent California decision following Twombly, Interscope v. Rodriguez, which dismissed the RIAA's "making available" complaint as mere "conclusory", "boilerplate" "speculation". The 2 students represented by Cumberland join the 8 students represented by a prominent Portland law firm, bringing to 10 the number of University of Maine students fighting back in this case.

The RIAA is apparently having an allergic reaction to the request by the State Attorney General of Oregon for information about the RIAA's investigative tactics, in Arista v. Does 1-17, the Portland, Oregon, case targeting students at the University of Oregon. See The Oregonian, December 1, 2007 ("UO suspects music industry of spying") and p2pnet, November 29, 2007 ("RIAA may be spying on students: Oregon AG"). Not only are the record companies opposing the request (pdf), they're asking the Judge not to even read it. (pdf) Commentary: "RIAA scorns Oregon University request".

It's that time of year again, where I realise I'm paying more than I need to for my phone and think about switching providers. Currently I'm paying abut £14 a month, for 100 minutes of calls and 40MB of data. I rarely make more than 60 minutes of calls in a month (I hate telephones), but I'd like more data so I can use my 770 as intended.

For the last four years, I have been looking for a service like this, where it provides calls but is mainly focussed on data. I am looking (somewhat half-heatedly, I admit) for jobs and the moment and so I don't know how long I will be staying in the UK for, making any contract with a minimum period unacceptable. This shouldn't be a problem, since I already own a phone so no network needs to make and recoup any investment (and yet most of them still require a minimum period of a year for a contract, and Three don't even offer SIM-only contracts).

Does anyone know of a UK operator which doesn't suck, and does provide intermittent data use for a reasonable rate? I am starting to think I should invest in WiMAX companies; at this rate they're going to make a killing when they start deploying over here...

There is no way I could feel more disdain for Apple's QA department than I do right now. It seems that, in spite of the fact Leopard was in development for over two years, no one bothered to test what happened when you updated an account using FileVault from Tiger. My experience was:

1. The installer worked fine.
2. I logged in, and used the OS for a day.
3. The kernel paniced.
4. On rebooting, my home directory was inaccessible, and Disk Utility was unable to repair the disk image.

Oh well, I thought. It's an occupational hazard when using an encrypted disk image for your home directory; if you don't get a clean shutdown then you can lose data. So, mindful of this, I restored from a recent backup and rebooted. Sure enough, there I was logged in again. Then, a few weeks later, I upgraded to 10.5.1, shut down cleanly, rebooted, and... couldn't log in. Apparently the disk image was corrupted. Worse, it turns out this is a known fault: Leopard always leaves FileVault home directories created with Tiger in an unmountable state when you log out.

I'm going to say that again:

Leopard always leaves FileVault home directories created with Tiger in an unmountable state when you log out.

What kind of monumentally incompetent design is this? I have no idea. Anyway, enough of the ranting. I'm sure what people really want to know is 'what do I do when my shiny new OS has just eaten 30GB of personal data.' Step one is to swear at Apple. A lot. Step two is to realise that this 'corrupt' disk image, with a 'bad superblock' actually mounts fine in Tiger still. Fortunately, I haven't 'up'graded my Powerbook to Leopard. I booted the MBP in target mode, mounted it on the PowerBook, mounted the disk image and copied all of the files out.

I now had /Users/theraven/theraven.sparseimage containing the disk image that Leopard was too inept to use and /Users/tr containing my files. After swapping these over, I rebooted. Could I log in? No. Now it didn't think that the disk image was corrupt, it just couldn't find it. A problem.

This lead to the question of how to tell OS X that I was no longer using FileVault. Apparently this isn't documented anywhere I could find via Google and so I had to spend a long time hunting through the filesystem. Thanks again Apple.

It turns out that the relevant file is /var/db/dslocal/nodes/Default/users/theraven.plist (where theraven is my username). To edit this, you have to log in as root. I did this by booting to single user mode (hold command-s on boot). Inside this file, you will find a key-value pair where the key is home_loc and the value is an array. If you delete this key, then it will fall back to using the home directory as a directory, rather than a mount point. You can then reboot (or just exit from single user mode) and log in. You can probably then reenable file vault and have it re-encrypt your data, but I think I want some confirmation from Apple that they are only mostly incompetent, rather than completely inept before doing this.

Once upon a time, Apple was known for attention to detail and thorough testing. I suppose their current activities are good news for Étoilé, but I'd rather we competed by raising our standards than by Apple lowering theirs.

The RIAA's latest anti-college round of "early settlement" letters targets 7 out of 8 Ivy League schools, but continues to give Harvard University a wide berth. This is perhaps the most astonishing display of cowardice exhibited to date by the multinational cartel of SONY BMG, Warner Bros. Records, EMI, and Vivendi/Universal (the "Big Four" record companies, which are rapidly become less "big"). The lesson which other colleges and universities should draw from this latest of many acts of cowardice: "All bullies are cowards. Appeasement of bullies doesn't work. Standing up to bullies and fighting back has a much higher success rate."

Someone just sent me the best link I've seen in a long time: http://freerice.com/index.php.

It's a simple vocabulary game which asks you to pick the closest synonym for a word from four options. It shows you adverts, and for every word you get right they donate 10 grains of rice to the UN World Food Program. It adjusts the difficulty based on how many you've got right so far, up to a maximum of 50. I seem to be hovering around he 40±2 mark at the moment.

EDIT: I got to 47 for a bit, but then dropped down again. Still haven't made it to 48, which they claim few people beat.

Ohio University, in Athens, Ohio, has found the key to getting the RIAA to stop inundating it and its students with "settlement" letters. According to the university's student online publication, the university paid $60,000, plus $16,000 per year "maintenance", to Audible Magic, the business partner of the RIAA's all-purpose expert witness Dr. Doug Jacobson, for its "CopySense" filtering software. Once it made the payments, the letters stopped. This of course raises a lot of questions as to the 'disinterestedness' of Dr. Jacobson, whose deposition in the UMG v. Lindor case was the subject of interesting Slashdot commentary.

Judge David G. Larimer, presiding in Rochester, New York, has denied an RIAA application for default judgment on the ground that the RIAA's evidence was insufficient, in that it contained no details of actual downloads or distributions, and no sufficient evidence that defendant was in fact Kazaa user "heavyjeffmc@KaZaA". The decision (pdf) concluded that "there are significant issues of fact regarding the identification of the defendant from his alleged "online media distribution system" username". (In case you're unfamiliar with the term "online media distribution system", that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else.) In August a similar RIAA default judgment motion was denied on the ground that the pleadings failed to allege sufficient factual details supporting a claim of copyright infringement, in a San Diego, California, case, Interscope v. Rodriguez.