I don't see anything at risk at all. Anyone can apply for a trade mark the issue is will they get it?
Having a domain name has nothing to do with the TM application. Given the proir existance of the language etc I would think they have no chance of getting it. Makes me wonder what sort of legal advice they are getting ....
Don't worry everone its either prior art or already covered by existing patents. e.g the idea of 'finger printing' hardware is well and truly covered by the Uniloc patent 5,490,216 (and variations) as Microsoft and others will attest. The fact they use an RFID tag and not on-line is not material from infringing the basic idea of finger printing hardware - if it was Microsoft could have saved themselves a lot of money.
I think you'll find the economists argument against cost pricing is more to do with the fact it doesn't maximise profits and not 'baking in' your cost structure as you put it.
eg if a widget costs $1 to make and you just set a 20 percent profit margin you sell it for $1.20 when in fact the market may have paid $5.
In this case the publishers are trying to do the same - extract as much out of the market as they can so in economic theory its more to do with demand and consumer surplus. In Australia it gets even worse for printed works with the publishers having an exclusive right (ie retail shops can't import from other sources) for a period and they still cry poor.
Using your argument you may as well do away with patents altogether? The very people paying up at the moment are the ones with large patent lists of their own so I hardly think they would think that's a good idea.
The integrity of the patent system depends on original inventors being able to protect their work. Corporations that put product to market without patent clearances do so at their own risk and when they are caught out fair and square we don't need to feel sorry for them!
re
>While the article linked here seems to make this out to be a big deal, it seems like the only really big deal is the
>fact that everyone forgot this was the way Apple originally planned for apps to be handled on the phone.
Yes funny that - human nature at work - tell someone they must do it one way and they kick and scream to do it another way even when there are obvious advantages in running your app via a browser - as it was intended! The whole point of the browser was to make the OS redundant so in 2009 for developer's to happily lock themselves into a single platform is all a bit strange for me ....
What is all this bull*** about cloud computing? Marketing guys thinking they have invented something? Racks full of servers in some data centre is hardly anything new and client server, thin client, application servers, hosted applications, network attached storage,web services etc are all part of the mix of things people do with computers and networks.
I'm not surprised Microsoft has turned its attention to leveraging its applications from servers for Internet users - networks are fast and robust enough for this to work well and 2) most of their biggest corporate clients do this already across their corporate networks so why wouldn't Microsft try to commoditise this?
Hmmn I'm another one who liked the ads. They could have done more with the scripts but the idea and the chemistry between Gates and Sienfeld worked for me.
Nothwithstanding the Scrabulous situation which was probably a bad move given the relatively easy work arounds and easy access to a market in many industrial situations it makes perfect sense to sue for copyright infringement.
I recall a case where industrial machinery was being manufactured in China and imported back to Australia and sold to mining company's undercutting the local manufacturer. The Australian company was able to prove the design was theirs (various design features that required significant research to perfect) and conversely the importer was not able to demonstrate any design processes.
(so the design appeared to be just be a copy of the original with minor variations).
Anyway the importer was stopped on the basis of copyright infringement in that they had been built to the same specifications or plan. Architects designs are similarly copywright protected as well and they usually are keen to pursue people who copy them - albeit its a grey area to prove at times.
Technically its possible but as pointed out it will need to be maintained etc so there would need to some greater structure in place to keep things working than individual householders themselves.
An analogy here in Australia would be that local councils ( so called local government authorities or LGA's) maintain local roads, paths, parks etc and the cost of this is shared by all people owning houses in that area.
So if this sort of basic infrastructre (ie the fibre and not the associated communications networks) was connected and maintained by say an LGA which essentially treats it as any other service to their ratepayers then the price gouging of Telco's would largely be elimated from equation?
I agree with the article that at some point we'd all be better off if householders owned the last mile - it's just a matter of how this can be sensibly achieved? Wireless may even be part of this mix?
Without reading the details I would suggest that this patent would not hold up if MS actually took someone to court for alleged infringement - both on the prior art and obviousness of the application from anyone reasonably skilled in the art I think is the term they use.
ie it's quite possible to be granted a patent for something that is easily struck out or ruled invalid under the closer examiniation of a court. So MS is likely not to want to pursue this one with too much vigour ....
In a nutshell how it works is someone in Australia (for example) signs up some manufacturer for the exclusive rights to distribute a product.
Then forever and a day after that the poor consumer has to pay some (in Austrlia its usually a *big*) markup because of these middle men who basically do bugger all for their money and think they are smart business men (and women).
Now in the new economy why would the consumer want to pay this extra when you can easily source yourself either from other markets (countries) or consumers via ebay etc.
So there is pressure on the manufactuers by their distributors to maintain the old business model and hence call in the lawyers.
In Australia a test case was (Montana Tyres Rims & Tubes Ltd vs Tyre Transport Sales Pty Ltd) where an Australian exclusive distributor of tyres attempted to use trade mark law to prevent a competitor importing those same tyres in competition with it ('parallel importation').
They arranged for the foreign manufacturer's Australian trade mark registrations to be transferred to it. This was a blatant attempt to prevent parallel importation on the basis of TM infringement. Since the tyres were from the one manufacturer this seems to me to not be what trade mark law is for?
As far as I know the attempt failed and it is not a TM infrignment to import genuine goods from a third country.
(why wouldn't this also be the case in the various free trade agreements around the place?).
However like all legal cases this particular dispute had a few technical reasons that won't be the case in general and you will see plenty of distribors trying to hold back the tide!
Try looking at trading post (that name with .com.au on the end). Owned by Telstra and backed by their Yellow pages etc they have the to potential to do well - in terms of money they can throw at this project they have very deep pockets.
The execs at ebay that tried this on should be sacked because there are now plenty of people voting with their feet when they wouldn't have bothered to look for alternatives if ebay hadn't pulled such a dumb, dumb stunt .....
I agree totally with the ACCC position as well. You can't have a situation where a small market (like Australia) is picked off to implement something so anti competitive when clearly if it were such a great thing for consumers they would do it world wide off the bat? Whay are we to be so lucky to get this great new "service"?
They thought they could get away with it here and force themselves into consumers bank accounts - well think again!
They are not a law unto themselves and the ACCC has a role to play in monitoring these sorts of dubious business practices in the Australian market (especially given their dominant position).
The Music industry milked the Australian market for decades but that's another story ....
I wouldn't rely on the meta data to establish the authenticity who made a submission. I could make a sumbission and put whatever I like in the meta data of a pdf file!
And in anycase you have to wonder where is the pay off for M$$$? Scanning books is expensive both in terms of time and resources so working out how they get a return on that investment is not obvious to me? It's not exactly riviting must have content for most people ....
The library's are in a better position to at least leverage what they already being funded for .... and google have a shotgun approach but even for them I don't think it will be something they will grow into a significant revenue stream.
I think MS$$$ dodged a bullet by not shovelling out all the extra cash when its improved offer was rejected. Really what were those Yahoo guys thinking? I think shareholders will be pretty pissed with what happens next. They are going backwards from here ... when they could have walked away on the top end of the market.
And as for google - more time to establish applications as services so at least they have had a win!
I think you are correct in what is happening in the market but in Australia read below for some surprises. I think its an idea waiting for a time/place/niche - all technologies that their strengths and weaknesses.
From report:
"Trials of the service in two of Australia’s more remote communities, Tasmania and Victoria, as well as a handful of customers closer to Melbourne and Canberra. The ease of installation on both ends was a huge selling point, and the two year initial trial received rave reviews from customers. Everyone liked how easy it was, how far it reached and the speed (as much as 200mbps in some cases)."
So why didn't it go ahead?
From Report:
"In order to work at its maximum efficiency, the technology needs a repeater station every kilometer or so. This is no big deal, until you think about how large Australia is, how scattered the towns are, and how many the utilities would have to build in order to service them all. Even if the government subsidized it, the cost of a full roll out would be prohibitive. The very nature of what the technology is designed to do, serve remote and underpopulated areas, makes the return on the cost negligible.
Without a significant return / cost ratio it isn’t worth full deployment. If all of their cash is sunk into a roll out, utilities wouldn’t be able to compete with companies like Telstra to get the market share they’d need in urban areas to be successful in outlying areas. Once again big telcos win the battle before it even starts, and so a brilliant technology dies."
See for full story google out "broadband-over-power-lines-dies-a-quiet-death" at freeaccess.com.au
In Australia (and we tend to follow US IP law from what I see) you have the provision of 'fair use' which essentially lets you directly use up to 10 percent of copyrighted material for specific purposes - study being one of them.
So in the first instance the professor must not breach copyright of the book by using it in an unlawful manner.
Now if the Professor hasn't breached any copyrights in creating his lecture then it becomes a matter between him and Einstien Notes as to whether they are breaching his copyright.
The Professor being the creater of the work (lecture) owns the copyright of his work unless there is a specific work contract that assigns the copyright to his employer (the University).
There is an implied right for students to use his entire work for the purposes that it was created - study, take notes, research, keep as reference etc.
It is not clear to me that this right would extend to a third party like Einstien Notes so if I were EN I would negotiate directly with the good Lecturers and offer them a royalty on their work. The book publisher doesn't have a leg to stand on in my opinion so don't bother with them.
There is a general principle in trade mark law (or at least here in Australia) where a term that may have been able to be trademarked once has fallen into 'common use' or has become a 'common descriptive term'. Such words are not capable of being registered as a trade mark.
I would suggest 'cyberlaw' along with 'Internet' would be in this category. It is also possible for registered marks to effectively lose their status through this process - and example is the word 'lite' that seems to pop up everywhere these days.
I would have thought the Trade Mark was more to do with protecting the manufacturer from others building cars and sticking a Ford logo on it in the same way you expect Fender Stratocasters for example to me made by Fender and not someone else. It's a simple matter of preventing confusion in the market place between various car makers.
So if you actually own a genuine Ford vehicle and choose to either drive it, sleep in it, take it to a fan club show or make a calendar out of it I don't see how you are infringing the Trade Mark even if they consider the mark extends into other areas?
There is no condition that you are sold the car for the sole purpose of driving it is there? So my point is as long as it's what the maker (Ford) produced you can do what you dam well like with the car - even heaven forbid crash it!
I don't see anything at risk at all. Anyone can apply for a trade mark the issue is will they get it?
Having a domain name has nothing to do with the TM application. Given the proir existance of the language etc I would think they have no chance of getting it. Makes me wonder what sort of legal advice they are getting ....
More fool sony
Don't worry everone its either prior art or already covered by existing patents. e.g the idea of 'finger printing' hardware is well and truly covered by the Uniloc patent 5,490,216 (and variations) as Microsoft and others will attest. The fact they use an RFID tag and not on-line is not material from infringing the basic idea of finger printing hardware - if it was Microsoft could have saved themselves a lot of money.
Cost Pricing
I think you'll find the economists argument against cost pricing is more to do with the fact it doesn't maximise profits and not 'baking in' your cost structure as you put it.
eg if a widget costs $1 to make and you just set a 20 percent profit margin you sell it for $1.20 when in fact the market may have paid $5.
In this case the publishers are trying to do the same - extract as much out of the market as they can so in economic theory its more to do with demand and consumer surplus. In Australia it gets even worse for printed works with the publishers having an exclusive right (ie retail shops can't import from other sources) for a period and they still cry poor.
Patent is a Patent.
Using your argument you may as well do away with patents altogether? The very people paying up at the moment are the ones with large patent lists of their own so I hardly think they would think that's a good idea.
The integrity of the patent system depends on original inventors being able to protect their work. Corporations that put product to market without patent clearances do so at their own risk and when they are caught out fair and square we don't need to feel sorry for them!
Psychology at Work
re
>While the article linked here seems to make this out to be a big deal, it seems like the only really big deal is the
>fact that everyone forgot this was the way Apple originally planned for apps to be handled on the phone.
Yes funny that - human nature at work - tell someone they must do it one way and they kick and scream to do it another way even when there are obvious advantages in running your app via a browser - as it was intended! The whole point of the browser was to make the OS redundant so in 2009 for developer's to happily lock themselves into a single platform is all a bit strange for me ....
Client Server Rides Again
What is all this bull*** about cloud computing? Marketing guys thinking they have invented something? Racks full of servers in some data centre is hardly anything new and client server, thin client, application servers, hosted applications, network attached storage,web services etc are all part of the mix of things people do with computers and networks.
I'm not surprised Microsoft has turned its attention to leveraging its applications from servers for Internet users - networks are fast and robust enough for this to work well and 2) most of their biggest corporate clients do this already across their corporate networks so why wouldn't Microsft try to commoditise this?
They were ok!
Hmmn I'm another one who liked the ads. They could have done more with the scripts but the idea and the chemistry between Gates and Sienfeld worked for me.
Here is an example.
Nothwithstanding the Scrabulous situation which was probably a bad move given the relatively easy work arounds and easy access to a market in many industrial situations it makes perfect sense to sue for copyright infringement.
I recall a case where industrial machinery was being manufactured in China and imported back to Australia and sold to mining company's undercutting the local manufacturer. The Australian company was able to prove the design was theirs (various design features that required significant research to perfect) and conversely the importer was not able to demonstrate any design processes.
(so the design appeared to be just be a copy of the original with minor variations).
Anyway the importer was stopped on the basis of copyright infringement in that they had been built to the same specifications or plan. Architects designs are similarly copywright protected as well and they usually are keen to pursue people who copy them - albeit its a grey area to prove at times.
It would be great but
Technically its possible but as pointed out it will need to be maintained etc so there would need to some greater structure in place to keep things working than individual householders themselves.
An analogy here in Australia would be that local councils ( so called local government authorities or LGA's) maintain local roads, paths, parks etc and the cost of this is shared by all people owning houses in that area.
So if this sort of basic infrastructre (ie the fibre and not the associated communications networks) was connected and maintained by say an LGA which essentially treats it as any other service to their ratepayers then the price gouging of Telco's would largely be elimated from equation?
I agree with the article that at some point we'd all be better off if householders owned the last mile - it's just a matter of how this can be sensibly achieved? Wireless may even be part of this mix?
Patent is not the Last Word
Without reading the details I would suggest that this patent would not hold up if MS actually took someone to court for alleged infringement - both on the prior art and obviousness of the application from anyone reasonably skilled in the art I think is the term they use.
ie it's quite possible to be granted a patent for something that is easily struck out or ruled invalid under the closer examiniation of a court. So MS is likely not to want to pursue this one with too much vigour ....
Distributors are the Problem I Think?
In a nutshell how it works is someone in Australia (for example) signs up some manufacturer for the exclusive rights to distribute a product.
Then forever and a day after that the poor consumer has to pay some (in Austrlia its usually a *big*) markup because of these middle men who basically do bugger all for their money and think they are smart business men (and women).
Now in the new economy why would the consumer want to pay this extra when you can easily source yourself either from other markets (countries) or consumers via ebay etc.
So there is pressure on the manufactuers by their distributors to maintain the old business model and hence call in the lawyers.
In Australia a test case was (Montana Tyres Rims & Tubes Ltd vs Tyre Transport Sales Pty Ltd) where an Australian exclusive distributor of tyres attempted to use trade mark law to prevent a competitor importing those same tyres in competition with it ('parallel importation').
They arranged for the foreign manufacturer's Australian trade mark registrations to be transferred to it. This was a blatant attempt to prevent parallel importation on the basis of TM infringement. Since the tyres were from the one manufacturer this seems to me to not be what trade mark law is for?
As far as I know the attempt failed and it is not a TM infrignment to import genuine goods from a third country.
(why wouldn't this also be the case in the various free trade agreements around the place?).
However like all legal cases this particular dispute had a few technical reasons that won't be the case in general and you will see plenty of distribors trying to hold back the tide!
Re: Alternatives to Ebay in Australia
Try looking at trading post (that name with .com.au on the end). Owned by Telstra and backed by their Yellow pages etc they have the to potential to do well - in terms of money they can throw at this project they have very deep pockets.
The execs at ebay that tried this on should be sacked because there are now plenty of people voting with their feet when they wouldn't have bothered to look for alternatives if ebay hadn't pulled such a dumb, dumb stunt .....
Re: Are you kidding....
I agree totally with the ACCC position as well. You can't have a situation where a small market (like Australia) is picked off to implement something so anti competitive when clearly if it were such a great thing for consumers they would do it world wide off the bat? Whay are we to be so lucky to get this great new "service"?
They thought they could get away with it here and force themselves into consumers bank accounts - well think again!
They are not a law unto themselves and the ACCC has a role to play in monitoring these sorts of dubious business practices in the Australian market (especially given their dominant position).
The Music industry milked the Australian market for decades but that's another story ....
Don't rely in meta data
I wouldn't rely on the meta data to establish the authenticity who made a submission. I could make a sumbission and put whatever I like in the meta data of a pdf file!
Show me the money
And in anycase you have to wonder where is the pay off for M$$$? Scanning books is expensive both in terms of time and resources so working out how they get a return on that investment is not obvious to me? It's not exactly riviting must have content for most people ....
The library's are in a better position to at least leverage what they already being funded for .... and google have a shotgun approach but even for them I don't think it will be something they will grow into a significant revenue stream.
Lose Lose
I think MS$$$ dodged a bullet by not shovelling out all the extra cash when its improved offer was rejected. Really what were those Yahoo guys thinking? I think shareholders will be pretty pissed with what happens next. They are going backwards from here ... when they could have walked away on the top end of the market.
And as for google - more time to establish applications as services so at least they have had a win!
Horses for courses
I think you are correct in what is happening in the market but in Australia read below for some surprises. I think its an idea waiting for a time/place/niche - all technologies that their strengths and weaknesses.
From report:
"Trials of the service in two of Australia’s more remote communities, Tasmania and Victoria, as well as a handful of customers closer to Melbourne and Canberra. The ease of installation on both ends was a huge selling point, and the two year initial trial received rave reviews from customers. Everyone liked how easy it was, how far it reached and the speed (as much as 200mbps in some cases)."
So why didn't it go ahead?
From Report:
"In order to work at its maximum efficiency, the technology needs a repeater station every kilometer or so. This is no big deal, until you think about how large Australia is, how scattered the towns are, and how many the utilities would have to build in order to service them all. Even if the government subsidized it, the cost of a full roll out would be prohibitive. The very nature of what the technology is designed to do, serve remote and underpopulated areas, makes the return on the cost negligible.
Without a significant return / cost ratio it isn’t worth full deployment. If all of their cash is sunk into a roll out, utilities wouldn’t be able to compete with companies like Telstra to get the market share they’d need in urban areas to be successful in outlying areas. Once again big telcos win the battle before it even starts, and so a brilliant technology dies."
See for full story google out "broadband-over-power-lines-dies-a-quiet-death" at freeaccess.com.au
In Australia (and we tend to follow US IP law from what I see) you have the provision of 'fair use' which essentially lets you directly use up to 10 percent of copyrighted material for specific purposes - study being one of them.
So in the first instance the professor must not breach copyright of the book by using it in an unlawful manner.
Now if the Professor hasn't breached any copyrights in creating his lecture then it becomes a matter between him and Einstien Notes as to whether they are breaching his copyright.
The Professor being the creater of the work (lecture) owns the copyright of his work unless there is a specific work contract that assigns the copyright to his employer (the University).
There is an implied right for students to use his entire work for the purposes that it was created - study, take notes, research, keep as reference etc.
It is not clear to me that this right would extend to a third party like Einstien Notes so if I were EN I would negotiate directly with the good Lecturers and offer them a royalty on their work. The book publisher doesn't have a leg to stand on in my opinion so don't bother with them.
doug
Re Trademarks
There is a general principle in trade mark law (or at least here in Australia) where a term that may have been able to be trademarked once has fallen into 'common use' or has become a 'common descriptive term'. Such words are not capable of being registered as a trade mark.
I would suggest 'cyberlaw' along with 'Internet' would be in this category. It is also possible for registered marks to effectively lose their status through this process - and example is the word 'lite' that seems to pop up everywhere these days.
Trade Mark not being violated?
I would have thought the Trade Mark was more to do with protecting the manufacturer from others building cars and sticking a Ford logo on it in the same way you expect Fender Stratocasters for example to me made by Fender and not someone else. It's a simple matter of preventing confusion in the market place between various car makers.
So if you actually own a genuine Ford vehicle and choose to either drive it, sleep in it, take it to a fan club show or make a calendar out of it I don't see how you are infringing the Trade Mark even if they consider the mark extends into other areas?
There is no condition that you are sold the car for the sole purpose of driving it is there? So my point is as long as it's what the maker (Ford) produced you can do what you dam well like with the car - even heaven forbid crash it!