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LAW PUNDIT Friday, June 29, 2007 6/29/2007 03:01:00 PM [Home] [Print]

Knowingly Linking to Infringing Websites: MPAA PeekVid YouTVpc : USA Europe : Illicit Links
 

A good argument can be made that it is or should be illegal - in principle - to knowingly link to infringing content on the internet.

Chris Tew has drawn my attention to his article at WebTVWire concerning the Motion Picture Association of America (MPAA) copyright infringement lawsuit against PeekVid and YouTVpc, as also discussed by Nate Anderson at ars technica (digg) and Scott M. Fulton, III, at BetaNews.

As written at The Register by Lucy Sherriff in MPAA unleashes legal eagles on YouTV and PeekVid:

"Civil lawsuits were filed against YouTVpc and Peekvid in US District Court in Los Angeles for "damages and injunctive relief" for violations under the United States Copyright Act of 1976....
    The MPAA alleges that the two sites "contribute to and profit from massive copyright infringement by identifying, posting, organizing and indexing links to infringing content found on the internet"."
See Chris Tew on
Linking to infringing content is probably illegal in the US
and
Linking law expert Dr Stephan Ott talks about linking to pirated video
where Stephan Ott is quoted as follows:

"In my opinion linking to infringing content is unlawful and that is also what most of the courts say....

In the USA there are Safe Harbour provisions for hyperlink providers. You receive a take down notice and you comply with it, th[e]n there is no liability. So far we have nothing that is compar[a]ble to that system in Europe. I think we need a simil[a]r system and there are discussions on the European level."

See also the Stephan Ott website at
Links and Law


LAW PUNDIT Thursday, June 28, 2007 6/28/2007 04:20:00 PM [Home] [Print]

The New Apple iPhone by the NY Times and David Pogue
 

Via CaryGEE, Thank you.

Let's see . . . is this the new grammar?

iPhone
you iPhone
she iPhones

See the latest hype on Apple's new iPhone at the New York Times and David Pogue's YouTube video about the coming biggest thing since the iPod.

Here are the links:

http://www.youtube.com/user/thenewyorktimes

http://www.youtube.com/watch?v=VcRfAaIb2Ro

http://gizmodo.com/gadgets/nytimes-pulpbite/pogues-iphone-video-review-272554.php


The iPhone DOES LOOK very good in terms of appearance and features, just like the iMAC design makes Microsoft's Vista look like an old man with a beard.

Listen,
Apple can send us a test iPhone or iMac here to LawPundit at any time for review.
Thank YOU.


LAW PUNDIT Friday, June 22, 2007 6/22/2007 01:56:00 PM [Home] [Print]

Lawyers Think More & Stay Younger Longer : Know a Good Think When You See It
 

Professor Taiju Matsuzawa discovered some years ago, through a study of ca. 1000 persons [we can not find the original paper online that relates this discovery, only this indirect reference, so take this with a grain of salt], that lawyers stay mentally fit longer than other professions because lawyers think more than counterparts in other jobs. It is all a question of the level of blood circulation in the brain, which is a function of brain use:

"If you want to stay young, sit down and have a good think. This is the research finding of a team of Japanese doctors, who say that most of our brains are not getting enough exercise - and as a result, we are ageing unnecessarily soon.

Professor Taiju Matsuzawa
[Emeritus, Tohoku University, Japan] wanted to find out why otherwise healthy farmers in northern Japan appeared to be losing their ability to think and reason at a relatively early age, and how the process of ageing could be slowed down.

With a team of colleagues ... he set about measuring brain volumes of a thousand people of different ages and varying occupations.

Computer technology enabled the researchers to obtain precise measurements of the volume of the front and side sections of the brain, which relate to intellect (智能 ) and emotion, and determine the human character. The rear section of the brain, which controls functions like eating and breathing, does not contract with age, and one can continue living without intellectual or emotional faculties (功能).

Contraction of front and side parts - as cells die off - was observed in some subjects in their thirties, but it was still not evident in some sixty-and-seventy-year-olds.

Matsuzawa concluded from his tests that there is a simple remedy to the
contraction normally associated with age - using the head.

The findings show in general terms that contraction of the brain begins sooner in people in the country than in the towns. Those least at risk, says Matsuzawa, are lawyers, followed by university professors and doctors. White collar workers doing routine work in government offices are, however, as likely to have shrinking brains as the farm worker, bus driver and shop assistant.

Matsuzawa's findings show that thinking can prevent the brain from shrinking. Blood must circulate properly in the head to supply the fresh oxygen the brain cells need. "The best way to maintain good blood circulation is through using the brain, " he says. "Think hard and engage in conversation. Don't rely on pocket calculators. "" [emphasis added]

Now we here at LawPundit know why we have so much trouble with the faulty research being done by the other professions : it is the thought that counts.


LAW PUNDIT Thursday, June 21, 2007 6/21/2007 02:44:00 PM [Home] [Print]

A Dichotomy in Invention : Finders Seekers
 

Are innovators "seekers" ? or "finders" ?
and does it make a difference ?

We refer here to the website Arts of Innovation
and its sister Arts of Innovation blog
which are described as follows:

"The author
Colin Stewart, innovation columnist for the Orange County Register, runs this Web site and the associated Arts of Innovation blog. He can be reached by e-mail at cestewart (at) cox.net.

The researcher

ArtsOfInnovation.com and the Arts of Innovation blog elaborate on research into the careers of experimental and conceptual innovators by University of Chicago economist David Galenson."
[links added]

Galenson is the author of
Old Masters and Young Geniuses:
Two Life Cycles of Artistic Creativity


which has been reviewed by Malcolm Gladwell as follows in Age Before Beauty:

"There’s a really wonderful book that’s come out by a guy named David Galenson, who’s an economist at the University of Chicago... There’s something very interesting and important to be learned about the way our minds work by entertaining the notion that there are two very different styles of creativity, the Picasso and the Cézanne."

Definitely worth a read and we have blogrolled them at Literary Pundit and LawPundit.

See also Inside Innovation


LAW PUNDIT Monday, June 18, 2007 6/18/2007 03:34:00 PM [Home] [Print]

Images and Pettifoggers : It Is Done With Mirrors
 

In Vanity Fair, William Makepeace Thackeray writes:*

"The world is a looking-glass, and gives back to every man the reflection of his own face." (p.8)

By the same token, society for its part rewards most highly those who mirror its own image:

"Vanity Fair -- Vanity Fair! Here was a man, who could not spell, and did not care to read -- who had the habits and the cunning of a boor : whose aim in life was pettifogging : who never had a taste, or emotion, or enjoyment, but what was sordid and foul : and yet he had rank, and honours, and power, somehow : and was a dignitary of the land, and a pillar of the state. He was high sheriff, and rode in a golden coach. Great ministers and statesmen courted him ; and in Vanity Fair he had a higher place than the most brilliant genius or spotless virtue." (p. 77)

Not those who are "better" or "worse" are loved, but those who are mirrored faces of the beholder.

By the same token, our views of the rest of humanity and of the groups within that humanity are often merely reflections of ourselves.

Just a thought.

*From William Makepeace Thackeray, Vanity Fair, Penguin Popular Classics, 1994, first published in 1877


LAW PUNDIT Tuesday, June 12, 2007 6/12/2007 06:39:00 PM [Home] [Print]

NCAA Outlaws Live Blogging from Press Boxes : Are Sports Bloggers Broadcasting?
 

Have you seen these blog postings at Deadspin about the NCAA outlawing live blogging from press boxes?

So a Blogger and a Pig Walk Into a Press Box ...

The NCAA Hates the Series of Tubes

The reason for the NCAA rule is found at the June 8, 2007 posting at BaseballAmerica.com, where Aaron Fitt writes in NCAA Stifles Supra-Regional Coverage of College Baseball World Series:

"Word came down today that the NCAA will no longer allow blogging from the press box during super-regionals because blogging “is considered a live representation of the game” and all live representations of the games are the exclusive property of the NCAA’s official rights holders."

The specific reason for the rule is the NCAA contract with ESPN, as Josh Centor at the Double-A- Zone, a blog close to the NCAA, writes:

"On Sunday, Louisville Courier-Journal reporter Brian Bennett was kicked out of the press box at the NCAA Baseball Super Regional. Bennett wasn’t drunk, rowdy or naked, instead getting the boot for his despicable blogging habit.

Due to the NCAA’s broadcasting agreement with ESPN, bloggers are not permitted to update their sites with in-game coverage from the baseball press box. In-game updates include providing readers with the score, inning of the game, roster moves, etc. The policy was enacted at a baseball game, but applies to all NCAA championship events.....

I find all of this quite unnecessary. The world of media has changed and I think this policy makes my organization look arcane because journalists now publish their thoughts in real time on the Internet. I don’t know anybody in their right mind who would choose in-game commentary on a blog over a television broadcast, so I don’t see how there’s competition between our partners and independent bloggers who have received credentials."

That this is an unfortunate - or at least from the standpoint of public relations, poorly managed and snap - NCAA decision is beyond question. In our modern day of mobile devices, much more information is leaving the stadiums during the games than in the days when you had to run to a pay telephone in the depths of the stadium to pass on live information to persons elsewhere.

Nevertheless, many modern college sports could not be financed as they are without TV money, so that when TV broadcasting companies holding exclusive broadcasting rights to sports events speak up, the NCAA listens.

This holds true even if ESPN's argument that "blogging" is "broadcasting" is a matter of definition that surely has not been decided by the courts, though it has been written in the blogging world by some that blogging is broadcasting. Obviously, it will be up to the lawyers to include "realtime blogging" in their broadcasting definitions when broadcasting contracts are made in the future.


LAW PUNDIT 6/12/2007 06:23:00 PM [Home] [Print]

Just Stringing Along - String Theory as Epicycles - The World as a Rubber Band
 

We posted the following comment to Cosmic Variance but the string was "snipped" after the word and which is marked below in orange - but what else could we expect from string theory? [actually, the snip was caused by the way html commands are handled as text]

"snip"

that word describes our double-edged scissored view of string theory, which seems like a postmodern system of epicycles .... or ... do branes have brains?

At
http://www.lawpundit.com/blog/2005/01/belief-without-proof-evidence-and.htm
we write:

"What are the main logical problems with string theory (alleged physical laws) from our point of view?

a. Perceived physical reality in physics is always a function of the system of measurement. Measurements are by definition relations presupposing frames of reference to be measured by some sort of "measurement ruler". Thus, "measured" reality is

1) a function of the frames of reference chosen for the relationships being measured (for example, particles, waves or "strings") and

2) the means of measurement (motion, inertia, velocity, weight, dimension, extension, contraction, etc.) "....

Speaking of "measure", has anyone considered the rather simple idea that "God" did not "make" the universe, but that God "is" the measured universe....

Perhaps the world is an "ultimate" string - but no string ever vibrates by itself, but needs to be plucked by something - frankly, we think that the idea of an infinitely extensible and unsnippable vibrating "rubber band" is better than simple string theory because it would more accurately reflect a yo-yo world alternating between the impossibles of absolute something and absolute nothing ....

For the math freaks this means that the Universe U could conceivably be defined by the formula
U = > 0 and < 1
where U is greater than 0 and less than 1 and where 0 and 1 both represent totality and singularity, i.e. absolute mass and absolute void, neither of which, apparently, are possibilities... which then results in the world that we "appear" to have....


LAW PUNDIT Friday, June 01, 2007 6/01/2007 06:28:00 PM [Home] [Print]

KSR v. Teleflex Podcast at Holme Roberts & Owen LLP
 

Holme Roberts & Owen LLP have an information page on KSR v. Teleflex which includes:

1. a link to an excellent KSR podcast (7.2 MB) at W3W3.com by Blaine Benard and Dave Seeley at this .mp3 file which covers the precedential significance of the KSR decision and its impact on:
  • district courts
  • patent litigators
  • the USPTO
  • the Federal Circuit
2. a link to a brief summary of KSR
3. a link to the May 3, 2007 USPTO statement on KSR.

We have added a link to Holme Roberts & Owen legal publications to our law publications list at LawPundit.


LAW PUNDIT 6/01/2007 03:13:00 PM [Home] [Print]

McKesson v. Bridge Medical - Patent Unenforceable : Nondisclosure is Inequitable Conduct
 

The recent May 18, 2007 Federal Circuit decision in McKesson v. Bridge Medical mirrors the trend found in information technology decisions ushered in by KSR v. Teleflex and followed in Leapfrog Enterprises, Inc. v. Fisher-Price, Inc. and Mattel, Inc. and Perfect 10 v. Google and Amazon (A9.com).

That trend is that the courts are starting to come down hard on the various existing abuses of the patent and copyright system, something which the courts must do in order to keep that same patent, trademark and copyright system functioning viably.

As written by Kevin E. Noonan at Patent Docs regarding McKesson v. Bridge Medical:

"[T]he Federal Circuit significantly increased the extent to which the duty of candor extends to activities occurring during prosecution of related applications. At the same time, the Federal Circuit lowered the standard for deciding that activities during patent prosecution could be inferred to be intentional, making it easier for a patent to be found unenforceable due to inequitable conduct. The effects of this decision are likely to be felt disproportionately by biotech patent applicants, in view of the high frequency with which applications in this technology area are required to file divisional and continuation applications."


Patently-O cites hopefully - and, in our opinion, unfortunately - to the woeful dissent of Judge Pauline Newman (see picture here) in McKesson, a Judge who will turn 80 this month, June, 2007, and whose current lack of good judgment - in our opinion - is evidenced by the fact that she has not gone into a timely retirement, but selfishly continues to hold on to her position to the detriment of the court, the country and patent law. What is needed - soon - is a modernly-oriented successor.

The patent system consists of "cogs" and "clogs" and Judge Newman in recent years has become one of the main clogs in a patent system desperately in need of reform. Judge Newman has through her backward opinions opposed nearly every type of patent reform and has even campaigned actively against patent reform in Congress. See IPBiz and Judge Pauline Newman urges caution in patent reform.

Nothing sensible has been done in patent law reform for the last 20 years, thank you Judge Newman, and it is time to move forward with desperately necessary intellectual property law reform before the entire IP system collapses of its own ponderous antiquity and inertia.

Senior Circuit Judge Raymond C. Clevenger III delivered the opinion of the Court, writing:

"As set forth in considerable detail below, this case involves McKesson's nondisclosure of three items of information during prosecution of the '716 patent in a setting where the applicant had co-pending applications. The district court found each of the three nondisclosures individually and collectively material to prosecution of the application that led to the '716 patent. With regard to deceptive intent regarding each nondisclosure, the district court found circumstantial evidence strongly supports an inference of deceptive intent. After assessing all the facts, the district court held that McKesson failed to provide a credible explanation for the material nondisclosures. As the district court noted, this was not a case of mistake or negligence—the prosecuting attorney testified that he would make all the same nondisclosure decisions again if prosecuting the same applications today.

The district court's thorough written opinion documents the court's correct understanding and application of the relevant precedent. The issues of materiality and intent are fact-driven. With regard to the issue of intent, the law recognizes that deceptive intent is virtually never shown or disproved by direct evidence. Instead, the ultimate fact finding on the issue depends on assessment of all the inferences, favorable and unfavorable, that can be drawn from pertinent evidence. To prevail on appeal, McKesson must demonstrate that the district court's findings of fact are clearly erroneous. After careful review of the record, we conclude that McKesson has not met its burden, and we therefore affirm."


For more material on McKesson v. Bridge Medical, see:

The Focal Point LLC : Litigation Graphics and Strategy

Eric M. Acker, Jose L. Patiño and Katherine L. Parker, Morrison & Foerster LLP, United States: Patent Prosecutors Beware, Litigators Take Note: Federal Circuit Affirms Novel Inequitable Conduct Ruling, 25 May 2007

Gehrke Law

Peter Zura's 271 Patent Blog


LAW PUNDIT 6/01/2007 09:47:00 AM [Home] [Print]

Dolmens of the Caucasus Russia Deciphered : Evidence and Megalithic Sites
 

This posting is especially for our friends in the Baltic, Russia, Eastern Europe and the Caucasus or for anyone interested in the prehistory and early history of mankind. We also have some tidbits here on research doctorates (Ph.D.) and the J.D. degree.

The LawPundit has recently succeeded in deciphering the megalithic dolmens of the Caucasus in Russia as representing a gigantic sky map of the heavens, i.e. they are a planisphere of the stars, as shown in the graphic below (as particularly and easily seen at Leo) and as initially posted to the LexiLine Newsletter on the History of Civilization:


Dolmens Megaliths Caucasus Russia Deciphered Astronomy Kaulins


EVIDENCE and MEGALITHIC SITES


One of our major projects in "Evidence" is the study of the world's megalithic sites. The Law Pundit has been studying megaliths, menhirs, dolmens, petroglyphs and their like for over 30 years using the method of critical Socratic analysis that only the law provides (see J.D.).

Because other academic disciplines are not trained to examine evidence critically but rely principally on "authorities" (where copious citation and extensive crony-reviewed publication rather than sound analysis are the keys), the existing megalithic evidence concerning man's history has not been properly evaluated by the archaeological community and related disciplines (here we include e.g. Archaeology, History of Western Civilization, History of Astronomy, Egyptology, Assyriology, Ancient Near Eastern Studies, Biblical Studies, Historical Linguistics, mainstream Archaeoastronomy).

For example, Archaeology and the related disciplines tend to examine megaliths and megalithic sites as isolated historical monads, which is why megaliths are even called monoliths "single stones". Megalithic sites are not only examined by mainstream archaeologists primarily in isolation, but are often erroneously identified as tombs, for which there is often no evidence on-site whatsoever. Indeed, their ostensibly later use as tombs by subsequent generations often seems to post-date their actual date of construction.

The idea that megalithic sites were somehow sensibly related to each other at their inception, and that many were not originally tombs but served other purposes, presents a simple alternative explanation which the oft monopoly-seeking mainstream scholars who study these things generally simply ignore under the motto "to each his stone".

FAILING RESEARCH SKILLS IN MAINSTREAM ACADEMIA

As a Berkeley study recently found, scholars in the humanities prefer to teach concepts rather than facts - which is all fine and good, but it is a disastrous strategy if the concepts taught do not match the actual facts, which is the present situation in many areas of these fields.

We thus continue to hammer away at the establishment of the archaeological community and related disciplines in the hope that younger scholars of critical mind in these fields will ultimately change the current tide of outdated, backward and sometimes blindered mainstream research.

See in this regard Research Skills, Law Evidence and Archaeology, and flawed Archaeology and Chronology (1, 2, 3, 3, 4, 5, 6, 7, 8, 9, 10).

We read with some amusement that the research doctorate is regarded by some to be the highest earned academic degree in U.S. postsecondary education". Our comment to that is, surely you jest.

Many of the most capable students (e.g. Stanford, Harvard, Yale) often went on to get J.D. "law student" or M.D. "med student" degrees rather than move on to a more comfortable and surely overinflated Ph.D. "research doctorate" degree as a "grad student". In fact, "Pre-Med" and "Pre-Law" students are often not only the leaders in their undergraduate college academic ranks, but their graduate courses of study are in no way inferior to those of the research doctorates, quite the contrary.

Society as a whole is run to a great deal by those holding a J.D. or the previously comparable LL.B. degree (Presidents of the USA, members of the US Congress, CEOs of the top 1000 corporations are primarily MBAs at 42%, and the JD degree follows with 25%) . Only rarely do PhDs reach these leadership positions. There is also presumably a reason for the large discrepancy in salaries among those holding J.D. versus Ph.D. degrees, and it is simply not the case here that those who earn less are better educated or more competent. Sorry.

We do not mean to denigrate the Ph.D. degree, but the idea that a research doctorate is allegedly academically superior to a J.D. or M.D. is one of those strange erroneous ideas floating around in academia and surely fed by those in academica holding a Ph.D.

As a matter of university politics, there is by the way no reason that Ph.D. study should not also be limited to three viz. maximally four years, just as the J.D., rather than having graduate students vegetate at their superiors' whims for years on end until they are over age 30 and unemployable.

MEGALITHIC SITES ARE RELATED TO ASTRONOMY

Speaking of years....

For years now, we have been demonstrating in countless postings and publications that many megalithic sites are astronomical in nature and that these sites in the main served as ancient hermetic (as above, so below) land markers, sited (and sighted) by astronomy. Yet,
  • as far as many archaeologists are concerned, Astronomy is a discipline from Mars, and the "earthy" science has nothing to do with the "airy" ones;
  • as far as many astronomers are concerned, Heaven and Earth are separated by an invisible barrier called Archaeology, whereas Astronomy itself allegedly started only with the Ancient Greeks, as if mankind could not map the stars of the sky prior to that era; and
  • as far as the Egyptologists, mostly linguists, are concerned, nothing in Egypt is related to anything else, even though hieroglyphic texts clearly indicate that boundary stones were set "like the sky", i.e. according to hermetic principles (as above, so below - just as the stars were arranged above, so also were the boundary stones placed below).
But what are "facts" to conceptual theorists?

PLACEMENT OF THE WEST CAUCASUS DOLMENS ON THE MAP

Our decipherment of the West Caucasus Russian dolmens relies on the placement of the position of the dolmens as found on a map published by Dr. Viktor Trifonov of the West Caucasus Dolmens Project (Institute for History of Material Culture, Russian Academy of Sciences , Dvortsovaya nab., 18, St.-Petersburg, 191186 Russia.; Tel. +7 (812) 571-50-92, fax +7 (812) 571-62-71; e-mail: admin@archeo.ru .

The map of the positions of the dolmens is found at:

http://www.archeo.ru/eng/themes/dolmens/index.htm and http://www.archeo.ru/eng/themes/dolmens/map.1.jpg .

INTERPRETATION OF THE DOLMENS AS A SKY MAP

In addition to our graphic above, our interpretation of the positions of these dolmens as representing the stars of the major northern stellar constellations has been posted to the LexiLine Files under Russia Karelia and Eastern Europe as the file

caucasusdolmensrussiadecipheredbykaulins.png

We will be adding some explanatory materials at LexiLine soon, supporting our decipherment with additional decipherments.

INTERNET WEBSITES ON THE CAUCASUS DOLMENS

For more information on the dolmens of the West Caucasus, the two major websites which document the megalithic sites in the Caucasus are:

1. Viktor Trifonov, Prehistoric Megaliths in the Western Caucasus (West Caucasus Dolmens Project), at http://www.archeo.ru/eng/themes/dolmens
2. Serg Valganov, The Dolmen Path - Russian Megaliths, at http://megalith.ru/articles/

The Dolmens of Russia are described as follows at the Wikipedia :

"These dolmens cover the Western Caucasus on both sides of the mountain ridge, in an area of approximately 12.000 square kilometres.... The monuments date between the end of the 4th millennium and ....

While generally unknown in the rest of Europe, these Russian megaliths are equal to the great megaliths of Europe in terms of age and quality of architecture, but are still of an unknown origin. In spite of the variety of Caucasian monuments, they show strong similarities with megaliths from different parts of Europe and Asia, like the Iberian Peninsula, France, Great Britain, Ireland, Netherlands, Germany, Denmark, Sweden, Israel and India. A range of hypotheses has been put forward to explain these similarities and the building of megaliths on the whole, but still it remains unclear. Approximately 3000 of these megalithic monuments are known in the Western Caucasus, but more are constantly being found, while more and more are also being destroyed. Today, many of these monuments are in great disrepair and will be completely lost if they are not protected from vandals and general neglect."

And what, dear archaeological community worldwide, are you doing about this, other than hoarding your pots in your vaults?




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