It seems, after much surreptitious deliberation, the attorneys for both Apple and Cisco have decided to set aside their intellectual corporate marketing claims and combine their strategic ploys by permitting Apple unfettered usage of Cisco's registered trademark, 'iPhone'. This conjoining of corporate intellectual rights seems unprecedented in the legal sense, because there appears to be no other alleged infringement violations that has led to a corporate hybrid of new technological ideas.
From my perspective, what do I know? What's fair to say is Cisco's registered trademark VoIP (Voice over Internet Phone ), at first glance, does not come close to the contested infringement of what's alleged to be Apple's early expected released of the iPhone, which is the graduated achievement of Apple's iPod. See the similarities: iPone versus iPod and Apple's iTunes downloadable music and podcast store, and then size this up against the VoIP. The differences are utterly striking! Again, for those not so temporarily inclined--iPhone, iPod and iTunes versus the VoIp. Where is the infringement? Are the differences so similar to the average eye or intellegence, that somebody would be confused about the VoIP's or iPhone's features or their respective manufactures? I am highly doubtful! Thus, if anybody deserves the rights to register and market an iPhone, it would be a resounding Apple.
Now I can understand why Cisco was eager to settle this case! If the case had proceeded through its natural federal civil docket course, perhaps Apple would have prevailed. Why? because whose product line is much closer to "iPhone" than Cisco's product of Voice over the Internet Phone? You guessed it, Apple's iPhone. If I were sitting on a jury, and of course not having read any portions of the complaint, oral testimony or the benefit of reading what those deposed influential corporate figures had to say, I would find in Apple's favor.
In the final analysis, however, this was a brilliant corporate and legal maneuver by Apple, deciding to settle with Cisco. Now Apple can move ahead with the iPhone as expected, and with the added benefit of having Cisco's technology & legal departments involve in the process, they can claim a court and product victory (the iPhone remains in the 'i' family). Instead of these departments confusing the issue, they now allow Apple to cash in on the product's successes without paying royalties to Cisco (I think) or stalling its release until a bench or jury trial concluded, which could have been years from now. And with the way technology seems to be traveling at today's warp speed, this would have been financially catastrophic for both the plaintiff and defendant.
More to come!
BRIAN C. MARQUIS
Saturday, February 24, 2007
Friday, February 16, 2007
In a prior posting I made reference to the "Equal Access to Justice Act" when I should have been referencing the Civil Justice Reform Act. The latter merely makes it possible for those who wish court access to afford doing so by paying a fee that at least appears within everybody's economic reach. At this time it cost a plaintiff $350.00 to file a federal civil cause of action. It doesn't stop there, however, because district court local rules require additional fees for everything from the hard copying of filed documents to placing the case on appeal.
If the bourgeois folks had their way, they would move to discourages those lesser-class status members from filing any civil complaint by pricing the filing fee into a out of reach sphere. I am thinking a complaint filing, under their scheme, would reach upwards to two or three thousand dollars. With this price tag, only the rich and their law firms would be able to file complaints against us lower-upper middle class.
More to come.
If the bourgeois folks had their way, they would move to discourages those lesser-class status members from filing any civil complaint by pricing the filing fee into a out of reach sphere. I am thinking a complaint filing, under their scheme, would reach upwards to two or three thousand dollars. With this price tag, only the rich and their law firms would be able to file complaints against us lower-upper middle class.
More to come.
Wednesday, February 14, 2007
What a Cyberday
Today, Elli Lilly attempted to persuade a U.S. District Court judge to issue an injunction against a website, who, apparently, are in possession of confidential internal business documents. The questionable documents seem to be of an incriminating nature to Elli Lilly, a national leader in the sale of drugs. They demonstrate just how far a drug company will go to market their products. Moreover, the documents show how paradoxicalness and defrauding Elli Lilly has been with its dealing towards the American Public and the governmental regulatory agency, Federal Drug Administration (FDA).
What's far more relevant to the cyberspace argument is the district court's ruling regarding injunctive relief when the core merits involve the "internet." Here is an excerpt from the 14 February 2007 issue of a BNA report, "..the court concluded that it is unlikely that the court can now effectively enforce an injunction against the internet in its narrow manifestation and it would constitute a dubious manifestation of public policy were it attempt to do so." WOW! If this opinion is upheld on appeal, think of the undulatory effects on similar appeals all across the country, especially when sister circuits, who have yet to take up this matter, may be looking for outside guidance.
Remember, this case involved the leaking of sensitive, internal confidential documents (intellectual property) to the public by scanning and posting them on the internet. What a case to claim "whistle blower!" Are you to be applauded for whistle blowing or guilty of the unlawful copying and dissemination of others intellectual property? Is there a greater public interest to be served in releasing potential harmful documentation in contra to the legal rights of one's intellectual property?
http://www.eff.org/news/archives/2007_02.php#0051227
More to come!
BRIAN C. MARQUIS
What's far more relevant to the cyberspace argument is the district court's ruling regarding injunctive relief when the core merits involve the "internet." Here is an excerpt from the 14 February 2007 issue of a BNA report, "..the court concluded that it is unlikely that the court can now effectively enforce an injunction against the internet in its narrow manifestation and it would constitute a dubious manifestation of public policy were it attempt to do so." WOW! If this opinion is upheld on appeal, think of the undulatory effects on similar appeals all across the country, especially when sister circuits, who have yet to take up this matter, may be looking for outside guidance.
Remember, this case involved the leaking of sensitive, internal confidential documents (intellectual property) to the public by scanning and posting them on the internet. What a case to claim "whistle blower!" Are you to be applauded for whistle blowing or guilty of the unlawful copying and dissemination of others intellectual property? Is there a greater public interest to be served in releasing potential harmful documentation in contra to the legal rights of one's intellectual property?
http://www.eff.org/news/archives/2007_02.php#0051227
More to come!
BRIAN C. MARQUIS
Sunday, February 11, 2007
Just a brief posting on an important subject:
Legal Issues: Do I have the copy rights to post this intellectual material (somebody else's writings and thougts) on a public blogboard? Am I violating Section 117 of the Copyright Act? (hint: software infringment or written materials) or the First-Sale Doctrine? Are neither, or only one or both applicable here?
"ProCD, Inc. v. Zeidenberg and Article 2B: Finally, the Validation of Shrink-Wrap Licenses
Joseph C. Wang
In ProCD, Inc. v. Zeidenberg, the Seventh Circuit validated a licensor’s shrink-wrap license. This court was one of the first courts to validate such licenses. The case involved a graduate student, Zeidenberg, who purchased ProCD’s telephone directory software program which contained the shrink-wrap license at issue. After Zeidenberg took the software home, he downloaded the information in the software into his computer and put the information onto a website, despite the language on the computer screen prohibiting such dissemination of the software’s contents. Then, Zeidenberg allowed Internet users to use his website to access the directory originally located on the software for free.
ProCD sued Zeidenberg in the U.S. District Court for the Western District of Wisconsin. The district court held in favor of Zeidenberg because it concluded that federal Copyright laws preempted the license agreement. On appeal, the Seventh Circuit reversed the lower court and held the license agreement to be valid and enforceable, and not preempted by Copyright laws. The Seventh Circuit reasoned that a contract was formed in compliance with sections 2-204 (contract formation) and 2-606 (acceptance of contracts) of the Uniform Commercial Code. In other words, the contract was formed when: (1) Zeidenberg purchased the software; and (2) Zeidenberg failed to reject the contract after learning of the license restrictions displayed on the computer screen -- in essence "accepting" the contract restrictions. The court also compared the agreement in the case to other types of agreements that are enforceable, such as forum-selection clauses. Further, the Seventh Circuit held that the Copyright Act did not preempt the license agreement because copyright law restricts third parties, while contract law only restricts the parties to the agreement.
This case agrees with section 208 of the proposed Article 2B of the U.C.C. which deals with formation of "mass-market licenses". This section should be read with other sections of Article 2B that require license terms to be "conspicuous" (U.C.C. § 2B-102(7)) while giving the licensee an "opportunity to review" (U.C.C. § 2B-113) the terms and, thereafter, "manifesting assent" (U.C.C. § 2B-112) to such terms. Only then would a licensee be bound by mass-market licenses. In ProCD, Zeidenberg formed such a mass-market license with ProCD because: (1) the license terms were "conspicuously" placed on the software package and displayed on the computer screen during usage of the program; (2) Zeidenberg had multiple "opportunities to review" the license agreement-- i.e., during the initial software purchase and while download ProCD’s program onto his computer; and (3) Zeidenberg "manifested his assent" to the terms of the agreement by affirmatively downloading the software. Thus, it is plain to see that Zeidenberg satisfied the requirements to form a mass-market agreement with ProCD, and the Seventh Circuit properly held that he was bound by the terms of the agreement.
The ProCD case is seminal in that it anticipates problems arising from agreements formed on the Internet, which is the exact problem that section 2-208 of U.C.C. Article 2B was designed to solve. Hence, before the adoption of U.C.C. Article 2B by each state, the ProCD decision validating shrink-wrap licenses should be the standard by which other courts apply in determining whether similar licensing agreements are enforceable."
Legal Issues: Do I have the copy rights to post this intellectual material (somebody else's writings and thougts) on a public blogboard? Am I violating Section 117 of the Copyright Act? (hint: software infringment or written materials) or the First-Sale Doctrine? Are neither, or only one or both applicable here?
"ProCD, Inc. v. Zeidenberg and Article 2B: Finally, the Validation of Shrink-Wrap Licenses
Joseph C. Wang
16 J. Marshall J. Computer & Info. L. 439 (1997)
Abstract
Abstract
In ProCD, Inc. v. Zeidenberg, the Seventh Circuit validated a licensor’s shrink-wrap license. This court was one of the first courts to validate such licenses. The case involved a graduate student, Zeidenberg, who purchased ProCD’s telephone directory software program which contained the shrink-wrap license at issue. After Zeidenberg took the software home, he downloaded the information in the software into his computer and put the information onto a website, despite the language on the computer screen prohibiting such dissemination of the software’s contents. Then, Zeidenberg allowed Internet users to use his website to access the directory originally located on the software for free.
ProCD sued Zeidenberg in the U.S. District Court for the Western District of Wisconsin. The district court held in favor of Zeidenberg because it concluded that federal Copyright laws preempted the license agreement. On appeal, the Seventh Circuit reversed the lower court and held the license agreement to be valid and enforceable, and not preempted by Copyright laws. The Seventh Circuit reasoned that a contract was formed in compliance with sections 2-204 (contract formation) and 2-606 (acceptance of contracts) of the Uniform Commercial Code. In other words, the contract was formed when: (1) Zeidenberg purchased the software; and (2) Zeidenberg failed to reject the contract after learning of the license restrictions displayed on the computer screen -- in essence "accepting" the contract restrictions. The court also compared the agreement in the case to other types of agreements that are enforceable, such as forum-selection clauses. Further, the Seventh Circuit held that the Copyright Act did not preempt the license agreement because copyright law restricts third parties, while contract law only restricts the parties to the agreement.
This case agrees with section 208 of the proposed Article 2B of the U.C.C. which deals with formation of "mass-market licenses". This section should be read with other sections of Article 2B that require license terms to be "conspicuous" (U.C.C. § 2B-102(7)) while giving the licensee an "opportunity to review" (U.C.C. § 2B-113) the terms and, thereafter, "manifesting assent" (U.C.C. § 2B-112) to such terms. Only then would a licensee be bound by mass-market licenses. In ProCD, Zeidenberg formed such a mass-market license with ProCD because: (1) the license terms were "conspicuously" placed on the software package and displayed on the computer screen during usage of the program; (2) Zeidenberg had multiple "opportunities to review" the license agreement-- i.e., during the initial software purchase and while download ProCD’s program onto his computer; and (3) Zeidenberg "manifested his assent" to the terms of the agreement by affirmatively downloading the software. Thus, it is plain to see that Zeidenberg satisfied the requirements to form a mass-market agreement with ProCD, and the Seventh Circuit properly held that he was bound by the terms of the agreement.
The ProCD case is seminal in that it anticipates problems arising from agreements formed on the Internet, which is the exact problem that section 2-208 of U.C.C. Article 2B was designed to solve. Hence, before the adoption of U.C.C. Article 2B by each state, the ProCD decision validating shrink-wrap licenses should be the standard by which other courts apply in determining whether similar licensing agreements are enforceable."
BRIAN C. MARQUIS
Thursday, February 8, 2007
Hi, everyone,
The most interesting aspect of cyberspace and its newly drafted laws (very few) that pertain to same is somewhat perplexing by its true nature. What happens to the notion of privacy, for example, when uniformed or plain dressed law enforcement enter our private residences executing a(n) (im)proper search warrant in conta to the Fourth Amendment, and when Congress passes a statute declaring that every residence or place of a computer fixture is subject to immediate search by agents of social control, with or without the expressed approval of the infamous FISA court or a court of lesser jurisdiction? Nothing, because we now live in the era of computerized searches. (this is another glorious reason to dislike Osama bin ladin). Your personal computer is no longer forbidden fruit. The government has direct access to any computer they deem necessary. Instead of the National Security Agency (NSA) tapping your hard-phone-line, now life has been made easier by selling the idea of PCs to everybody, giving them access to the very heart of every user. Although most search and seizures court challenges have survived summary judgment, and eventually become precedent, where is the cyberspace search and seizure precedents.
What's meant by this? At the heart of any successful legal argument or cause of action is 'precedent'. And since, here, precedent is entirely devoid of any meaning, and we live in a very sophisticated technological era, what becomes of the system when sybercases become precedent (I anticipate the time will come when Westlaw, for example, begins to restrict users from accessing certain cases because they bear a 'red, white and blue' national security confidentially flag). Who will qualify to access these cases? Are they accessible only to those who are computer literate or a have a government security clearance? Will the government abandon its "Equal Access to Justice" cause in the nomenclature of national security?
Although rhetorical in nature, these are just a few concerns I have about the way things are going. Thus, anyone who suggests to you the U.S. is lagging behind the times in technological surveillance is not totally with it. Who do you think has had computers in their possession for the last 50 years, not me, I submit, not you. You guessed it: the U.S. government. The government has been in the computer business for so long they know more than the pros, like Bill Gates. Where do you think the idea of the PC came from? It didn't come to Mr. Gates while sipping pina colottas on his back deck. No, from the U.S. government!
Not many realize this but the U.S. government can invade your computer machine at any time and without your permission or knowledge. All that's necessary is a phone line connected to one's modem (for those still accessing by dial up), nothing else. Irrespective of your computer in shut down mode, the fact remains your cord line is still connected to the right connectors. Huhhhh, good question, what about us broadband users? Simple, AWACs airplanes can and have conducted what I referred to as personal ground surveillance for so long it's so wonder the operators don't call up and invite us out to our favorite restaurant.
Remember, anytime you make a cell call, access another computer by Bluetooth, access the Internet via the handy-dandy pocket PC, just remember the micro-waves floating around aimlessly in space (and I say space because this area is unclaimed) and readily available to anybody who can snatch them from the airwaves. Congress has all ready declared that waves are not one's personal property but subject to any one able to retrieve them (public domain). This declaration is interesting because I own many electronic machines, but, what I don't own is a wave snatcher (my wife shutting me up in mid-stream could be construed a wave snatcher), leaving the government to corner the market on them. No doubt a brilliant deduction has befallen Mr. Gates about the marketability of such a device, but since the government is motoring full speed ahead with its war on terror, I doubt we'll ever see one.
More to come!
BRIAN C. MAQUIS
The most interesting aspect of cyberspace and its newly drafted laws (very few) that pertain to same is somewhat perplexing by its true nature. What happens to the notion of privacy, for example, when uniformed or plain dressed law enforcement enter our private residences executing a(n) (im)proper search warrant in conta to the Fourth Amendment, and when Congress passes a statute declaring that every residence or place of a computer fixture is subject to immediate search by agents of social control, with or without the expressed approval of the infamous FISA court or a court of lesser jurisdiction? Nothing, because we now live in the era of computerized searches. (this is another glorious reason to dislike Osama bin ladin). Your personal computer is no longer forbidden fruit. The government has direct access to any computer they deem necessary. Instead of the National Security Agency (NSA) tapping your hard-phone-line, now life has been made easier by selling the idea of PCs to everybody, giving them access to the very heart of every user. Although most search and seizures court challenges have survived summary judgment, and eventually become precedent, where is the cyberspace search and seizure precedents.
What's meant by this? At the heart of any successful legal argument or cause of action is 'precedent'. And since, here, precedent is entirely devoid of any meaning, and we live in a very sophisticated technological era, what becomes of the system when sybercases become precedent (I anticipate the time will come when Westlaw, for example, begins to restrict users from accessing certain cases because they bear a 'red, white and blue' national security confidentially flag). Who will qualify to access these cases? Are they accessible only to those who are computer literate or a have a government security clearance? Will the government abandon its "Equal Access to Justice" cause in the nomenclature of national security?
Although rhetorical in nature, these are just a few concerns I have about the way things are going. Thus, anyone who suggests to you the U.S. is lagging behind the times in technological surveillance is not totally with it. Who do you think has had computers in their possession for the last 50 years, not me, I submit, not you. You guessed it: the U.S. government. The government has been in the computer business for so long they know more than the pros, like Bill Gates. Where do you think the idea of the PC came from? It didn't come to Mr. Gates while sipping pina colottas on his back deck. No, from the U.S. government!
Not many realize this but the U.S. government can invade your computer machine at any time and without your permission or knowledge. All that's necessary is a phone line connected to one's modem (for those still accessing by dial up), nothing else. Irrespective of your computer in shut down mode, the fact remains your cord line is still connected to the right connectors. Huhhhh, good question, what about us broadband users? Simple, AWACs airplanes can and have conducted what I referred to as personal ground surveillance for so long it's so wonder the operators don't call up and invite us out to our favorite restaurant.
Remember, anytime you make a cell call, access another computer by Bluetooth, access the Internet via the handy-dandy pocket PC, just remember the micro-waves floating around aimlessly in space (and I say space because this area is unclaimed) and readily available to anybody who can snatch them from the airwaves. Congress has all ready declared that waves are not one's personal property but subject to any one able to retrieve them (public domain). This declaration is interesting because I own many electronic machines, but, what I don't own is a wave snatcher (my wife shutting me up in mid-stream could be construed a wave snatcher), leaving the government to corner the market on them. No doubt a brilliant deduction has befallen Mr. Gates about the marketability of such a device, but since the government is motoring full speed ahead with its war on terror, I doubt we'll ever see one.
More to come!
BRIAN C. MAQUIS
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