From murush at vsnl.com Sun Dec 1 20:55:11 2002 From: murush at vsnl.com (S Muralidhar) Date: Sun, 1 Dec 2002 20:55:11 +0530 Subject: [Commons-Law] demolition documentation Message-ID: <006001c2996a$0ea56a60$efec41db@murli> Delhi has been seeing a spate of a.. demolitions b.. violations of the Master Plan, e.g., where DDA enthusiastically constructs HIG houses in areas where construction is specifically prohibited c.. changed policies, including those that promise regularisation of unauthorised colonies, and the conversion into freehold of leasehold industrial and commercial properties which are to be accompanied by the right to convert it to any use as the owners may decide. Demolition of jhuggis and slum clusters has become state policy, spurred on by courts. The notion of the slum resident as `illegal' is flourishing. Thus far, there has been an unease about taking shelter behind this `illegality' while destroying habitat; so policies spoke about resettlement. The Supreme Court's lead in a.. characterising the slum dweller as an encroacher, and likening slum residents to pickpockets b.. laying the blame for Yamuna pollution on slum dwellers and c.. equating good governance with `slum clearance' and the High Court's unqualified equation of slum dwelling with slumlordism has dislodged anything that existed in the nature of a state conscience. This is a prolix prelude to suggesting a few exercises that may need to be urgently undertaken to work on some distortions that are deliberately being propagated. These are to do with a.. the distinction that is made between the `eligibles ' and the `ineligibles'. Eligibles are those entitled, by policy, to `re-settlement'. `Ineligibles' are not. Cut off dates, capacity to pay, documentary proof are some of the factors that distinguish an ineligible from an eligible. One question is, what happens to the `ineligibles'? Surely, having a corporeal existence, they cannot vanish. They are, in fact, visible in new settlements that spring up, often around the resettlement sites, or on sites that are marshy or otherwise inhospitable, from which their eviction may not be imminent because the land is not of immediate interest to the agencies. It may be an idea to build up photographic evidence of the conditions in which they now live and keep a record of their existence. I suspect that this will help challenge some ignorant hypotheses that pass off as fact, including a.. the denial of self-help that sustains their lives, b.. the process of investment in their homes, and c.. the land development that results from their efforts. Then there is the destruction of the lives that they craft over the years and the attendant more-than-and-different-from-impoverishment that results. If there is an economist who is curious about what the difference is between impoverishment and what this destruction produces, there is loads of room for work. The illegalities that the DDA and the state is everyday involved in, and the impunity that goes with it has to be exploded. We need to develop an information base that will address the use which the state and its agencies make of the law. This is a relatively recent guise in which the `rule of law' is being presented, and it has collusion and impunity as its fundaments. Anyone game? usha ramanathan -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20021201/0b13d781/attachment.html From tripta at sarai.net Mon Dec 2 13:49:28 2002 From: tripta at sarai.net (Tripta) Date: Mon, 2 Dec 2002 08:19:28 +0000 Subject: [Commons-Law] Microsoft OPEN vALUE INTIATIVE Message-ID: <200212020819.28212.tripta@sarai.net> Microsoft Unveils Licensing Discounts To Counter Linux Wed Nov 27, 1:43 PM ET Add Business - NewsFactor to My Yahoo! James Maguire, www.NewsFactor.com Microsoft (Nasdaq: MSFT - news) has unveiled a new policy to discourage its business customers from switching to Linux (news - web sites) or other open source alternatives. Called Open Value, the new offer is part of the software giant's Licensing 6 volume licensing program. Will Microsoft Play Nice Now? http://story.news.yahoo.com/news?tmpl=story&u=/nf/20021127/bs_nf/20105 What Is Lindows, Anyway? The Case for OpenOffice "What's happening is that Microsoft sales reps have been instructed to be on the lookout for any businesses that are migrating some of their machines to the Lindows OS," Yankee Group analyst Laura DiDio told NewsFactor. "If [the sales reps] think there's a real threat of some pretty large numbers of defections to open source, they can request authorization from Microsoft higher-ups to offer steeply discounted pricing." DiDio said that in some cases, the discounts could be as high as 50 percent. Price Hikes Microsoft instituted its Licensing 6 program this summer. The plan raised licensing fees for the company's business users from 33 to 107 percent, according to research firm Gartner. Although many of Microsoft's large enterprise customers complained about the increases, small businesses were particularly hard hit. Of those that declined to participate, the majority were small businesses. Now, with its new Open Value initiative, Microsoft is attempting to make participation in Licensing 6 easier for these small businesses. The plan allows small businesses to spread out payments over three years while still staying current with the latest Microsoft releases. The program will begin early next year, according to Microsoft. Additionally, Microsoft is offering zero percent financing until early 2003 for one of its Licensing 6 programs geared toward small business customers. Small Business, Hospitals and Schools From tripta at sarai.net Mon Dec 2 13:54:01 2002 From: tripta at sarai.net (Tripta) Date: Mon, 2 Dec 2002 08:24:01 +0000 Subject: [Commons-Law] the complete story://microsoft open value intiative Message-ID: <200212020824.01232.tripta@sarai.net> Sorry for spamming. this is the complete story. ____________________________________________________ Microsoft Unveils Licensing Discounts To Counter Linux Wed Nov 27, 1:43 PM ET Add Business - NewsFactor to My Yahoo! James Maguire, www.NewsFactor.com Microsoft (Nasdaq: MSFT - news) has unveiled a new policy to discourage its business customers from switching to Linux (news - web sites) or other open source alternatives. Called Open Value, the new offer is part of the software giant's Licensing 6 volume licensing program. Will Microsoft Play Nice Now? What Is Lindows, Anyway? The Case for OpenOffice "What's happening is that Microsoft sales reps have been instructed to be on the lookout for any businesses that are migrating some of their machines to the Lindows OS," Yankee Group analyst Laura DiDio told NewsFactor. "If [the sales reps] think there's a real threat of some pretty large numbers of defections to open source, they can request authorization from Microsoft higher-ups to offer steeply discounted pricing." DiDio said that in some cases, the discounts could be as high as 50 percent. Price Hikes Microsoft instituted its Licensing 6 program this summer. The plan raised licensing fees for the company's business users from 33 to 107 percent, according to research firm Gartner. Although many of Microsoft's large enterprise customers complained about the increases, small businesses were particularly hard hit. Of those that declined to participate, the majority were small businesses. Now, with its new Open Value initiative, Microsoft is attempting to make participation in Licensing 6 easier for these small businesses. The plan allows small businesses to spread out payments over three years while still staying current with the latest Microsoft releases. The program will begin early next year, according to Microsoft. Additionally, Microsoft is offering zero percent financing until early 2003 for one of its Licensing 6 programs geared toward small business customers. Small Business, Hospitals and Schools Although Lindows and other open source alternatives are less expensive than Microsoft products, making the switch is difficult for large businesses that have tens of thousands of users. "The folks who are most at risk to defect to Lindows are small and home office businesses, and also the small and mid-sized businesses with 1,000 to 1,500 users or less," DiDio said. "For them, it's easier to rip out and replace. They've got a centralized infrastructure, and they're saying, 'I can really cut my costs. I'm looking at huge licensing fees from Microsoft that could go up at any time.'" DiDio said there is also a risk of defection by academic users. "With the new Microsoft Licensing 6 scheme, they lost those hefty discounts they had before," she noted. "So we've heard a lot of school districts say, 'We don't have the money, we're thinking about going to Lindows.'" DiDio claims there is a similar feeling among hospitals that use Microsoft products. Microsoft representatives were not immediately available for comment. Licensing Strategy Under Microsoft's earlier licensing program, businesses could purchase upgrades, or decide not to, as suited their needs and budget. But the Licensing 6 program, which requires companies to pay up-front fees to ensure access to upgrades, has the effect of committing customers to Microsoft's products and upgrade schedules for a multiyear period. Once a company has paid up-front, it would be difficult for it to consider purchasing an alternative software solution. It is this need to commit, in addition to the price increase, that has most likely caused the greatest dissatisfaction among the software giant's business customers. In the face of this dissatisfaction, said DiDio, even some long-term Microsoft users are considering alternatives. "So when they do see an alternative that's appealing, they say, 'What's a little learning curve? From tripta at sarai.net Tue Dec 3 18:10:39 2002 From: tripta at sarai.net (Tripta) Date: Tue, 3 Dec 2002 12:40:39 +0000 Subject: [Commons-Law] Fwd: Resistance is futile (peer-to-peer) Message-ID: <200212031240.39229.tripta@sarai.net> Interesting. cheers tripta ---------- Forwarded Message ---------- Subject: Resistance is futile (peer-to-peer) Date: Mon, 2 Dec 2002 03:22:16 -0800 From: Steve Cisler To: nettime Resistance is Futile How Peer-to-Peer File Sharing Is Likely to Change Big Media By Robert X. Cringely Maybe you saw the story this week about a paper from Microsoft Research analyzing peer-to-peer file sharing networks with the conclusion that they can't be stopped -- not by the law, not by the movie studios and record companies, not even by mighty Microsoft and its Palladium initiative for trusted computing. Swapping songs and maybe movies is about to reach some critical mass beyond which it simply can't be stopped, or so the kids in Redmond think. The story is interesting, that it came from Microsoft is even more interesting, though the authors carefully disassociated themselves from their employer in the paper. But this all pales in comparison to the implications of their conclusions. These are smart folks, taking a stand that is surely not popular with their company, so I think there is a pretty strong reason to believe they are correct. If so, then what does it mean? Are record companies and movie studios doomed? Am I doomed, as a guy whose work is regularly ripped-off, too? And will the print publishers go away, leaving us with only weblogs to keep us warm? I don't think so, but the world is likely to change some as a result. Maybe it would help to deconstruct what publishers and broadcasters and movie moguls do that makes them significant contributors to our culture. They take financial risks by backing talented people in the hope of making money. Publishers and broadcasters and film makers and record executives have taken the time and spent the money to build both a commercial infrastructure and a brand identity. The most extreme version of such financial risk-taking is spending tens of millions -- sometimes hundreds of millions -- to make a movie. Forgetting for the moment that some of these media people are greedy pond dwellers, let's ask the important question -- how are peer-to-peer file sharing systems going to replace $100 million movies? Peer-to-peer systems can share such movies, but since there is no real peer-to-peer business model that can generate enough zeroes, such systems are unlikely to finance any epic films. Well, right there we have a problem. People LIKE epic films, but even with the best editing and animation software, there is no way some kid with a hopped-up Mac or PC is going to make "Terminator 4." One can only guess, then, that people will continue to go to movies and eat popcorn and watch on the big screen despite how many copies of Divx there are in the world. Peer-to-peer movie piracy is practical only in the manner that any organized crime is practical: it works only as long as the host remains strong enough to support the parasite. Tony Soprano can't run New Jersey because then everyone would be a crook and there would be nobody to steal from except other crooks. No more innocent victims. Same with movie piracy, which needs a strong movie industry from which to steal. If the industry is weakened too much by piracy, the pirates begin to hurt themselves by drying-up their source of material. It is very doubtful that this will happen simply because the pirates, too, want to go to movies. But the same is not true for records. This is simply because technology has reached the point where amateurs can make as good a recording as the professionals. The next Christina Aguilera CD could be as easily recorded at her house (or mine) as at some big recording complex out on Abbey Road. And text, well, text is even worse because it is easiest of all to steal. My columns are published in newspapers and websites and handed-in as college essays all over the world and there is almost nothing I can do about it because tracking down the perps costs me more than does their crime. From the perspective of the established publishers, there is also the horrible possibility that people might actually come to prefer material they find for free on the Internet -- not just pirated material but even original material. This column, after all, is free, and my Mother claims to find some value in it from time to time. So movies, while they may be hurt by peer-to-peer, won't be killed by it. But print publishing and music recording could be seriously hurt. Maybe this is good, maybe it is bad, but probably, it is inevitable. Of course, the recording and publishing executives, who often work for the same parent company, aren't going to go without a fight. We are approaching the end of the first stage of that fight, the stage where they try to have their enemy made illegal. But the folks at Microsoft Research now say quite definitively that legal action probably won't be enough. That's when we enter stage two, which begins with guerrilla tactics in which copyright owners use the very hacking techniques they rail against to hurt the peer-to-peer systems. This too shall pass when bad PR gets to the guerrillas. The trick to guerrilla or terrorist campaigns is to not care what people think, but in the end, Sony (just one example) cares what people think. That's when the record companies and publishers will appear to actually embrace peer-to-peer and try to make it their own. This will be a ruse, of course, the next step in the death of a corrupt and abusive cultural monopoly. They'll say they will do it for us. They'll say they are building the best peer-to-peer system of all, only this one will cost money and it won't even work that well. There is plenty of precedent for this behavior in other industries. My favorite historical example of this phenomenon comes from the oil business. In the 1920s, the Anglo-Persian Oil Company had a monopoly on oil production in the Middle East, which they generally protected through the use of diplomatic -- and occasionally military -- force against the local monarchies. Then the Gulf Oil Company of Pittsburgh, Pennsylvania, literally sneaked into Kuwait and obtained from the Al-Sabah family (who still run the place) a license to search for oil. The Anglo-Persian Oil Company did not like Gulf's actions, but they were even more dismayed to learn that Gulf couldn't be told to just go to hell. Andrew Mellon, of the Pittsburgh Mellons, was the U.S. Secretary of the Treasury, and he wasn't about to let his oil company be pushed around by the British Foreign Office. So Anglo-Persian and the Foreign Office did their best to delay Gulf, which worked for several years. They lied a little, lost a few maps, failed to read a telegram or two, and when Gulf still didn't go away, they turned to acting stupid. As the absolute regional experts on oil exploration, they offered to do Gulf's job, to save the Americans the bother if searching for oil in Kuwait by searching for them. The Anglo-Persian Oil Company searched for oil in Kuwait for 22 years without finding a single drop. Remember that Kuwait is smaller than Rhode Island, and not only is it sitting atop more than 60 billion barrels of oil, it has places where oil has been known for more than 3,000 years to seep all the way to the surface. Yet Anglo-Persian was able to fulfill its contract with Gulf and keep two oil rigs continually drilling in Kuwait for 22 years without finding oil. To drill this many dry wells required intense concentration on the part of the British drillers. They had to not only be NOT looking for oil, they had to very actively be NOT LOOKING for oil, which is even harder. Back to music and text publishing. Expect both industries to offer peer-to-peer systems that won't work very well, and will cost us something instead of nothing. In the long run, though, these systems will probably die, too, at which point, the music and the print folks will have to find another way to make their livings. This will not be because of piracy, but because of the origination of material within the peer-to-peer culture, itself. We're not that far from a time when artists and writers can distribute their own work and make a living doing so, which makes the current literary and music establishments a lot less necessary. But they won't die altogether because of the record company back lists of music, because peer-to-peer doesn't do a very good job of self-organizing, and indicating what is important, and because people won't take tablet computers with them to the bathroom. So we will have little movies and little records and little magazines on the Internet because the Internet is made up of so many different interest groups. For the larger population, there will still be Brittany Spears and Stephen King singing and writing for big labels. And that will only start to change when the first really big artists jumps from old media to new, trading 15 percent of $30 times 100,000 copies for 100 percent of $0.50 times 1 million copies. The Grateful Dead showed that it is possible to make a great living even in competition with some of their audience. This is a lesson all old media must learn in time. Either that, or die. # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- From lawrenceliang at vsnl.net Wed Dec 4 23:23:52 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Wed, 4 Dec 2002 23:23:52 +0530 (IST) Subject: [Commons-Law] Interesting papers from development by design Message-ID: <20021204175352.1F0ED114953@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20021204/64cbfdad/attachment.pl From tripta at sarai.net Thu Dec 5 01:23:22 2002 From: tripta at sarai.net (Tripta) Date: Wed, 4 Dec 2002 19:53:22 +0000 Subject: [Commons-Law] halfbakery/open source movie/conversations Message-ID: <200212041953.22426.tripta@sarai.net> Dear all, half bakery is a forum which also users to intiate discussions around Ideas. The following discussion on Open source movies is very interesting. Though it seems like a frivilous conversation at a superficial glance...it reflects on the understandings, sensibilities and entry of `Open Source' ideas into other social, cultural, artistic practices: the resistance posed, the arguements made and the future projections. cheers tripta _________________________________________________________________________________ http://www.halfbakery.com/idea/The_20Open_20Source_20Movie_20Project#1023483689 h a l f b a k e r y You could have thought of that. The Open Source Movie Project The Open Source Movie Project (-1, +5) [vote for, against] A movie where the script is public domain, and anybody can work on it (until it's filmed, of course). All contributions are considered public domain, and anybody can build on anybody else's ideas. Eventually, the best of everybody's contributions will be pieced together into a single, spectacular script. Of course, the acting will probably suck... ravenswood, Apr 26 2001 Planet Quake http://www.planetquake.com This site is a shining example of the wierd things people do when given enough open source style rights. [Aristotle] Because it says so in the script http://www.halfbake...n_20the_20script_22 [ravenswood] Have you heard of the Quake movie communities? They exist in much the same way as the Quake modelling communities but for movies. They could work like this just as people openly contribute models, skins, sounds and animations for Quake models. Aristotle, Apr 26 2001 I don't understand how open source works best, but it seems like it's really kicking when people choose to take and leave which features they want or invent entirely new ones. So, you end up with thousands of individualized programs cut, ostensibly, from the same cloth. "Open-sourcing" a movie seems like it would miss the point of the whole process, since you end up with one product to which everyone has contributed, but which no one likes. Or, perhaps, I'm missing the point. centauri, Apr 26 2001 Is this like a camel (A horse designed by a committee)? UnaBubba, Apr 26 2001 More like an elephant (a mouse designed by committee). sirrobin, Apr 26 2001 Great idea! It could be called "It's a Half-Baked Baked Baked World," and ... hey ... anybody else just get a chill down their spine? Dog Ed, Apr 26 2001 Yeah, I'm freezing and I think it would be called "It's a Half, Half, Half-baked World." The result would be something like the median of all the contributors. Reminding me of that stoopid show, Family Feud, wherein the contestants had to guess what an earlier polling of the audience showed to be the most average answer. Another analogy would be anyplace without zoning laws (think Houston). Sheesh. noggins, Apr 26 2001 I think this is a great idea! It would have to be a full fledged program in order to work... ... or it would make an interesting premiere plugin- I'm game, this would be hot-! wingo, May 22 2001 ((was mfd - mfd tag removed)) This is similar to Rods's idea (see link), but his is better, so I'm going to kill this one. I don't know if Rods had this in mind when he created his, but, if he did, then I'm glad that he was able to build upon the foundation I laid. If not, then I guess he's Leibnitz to my Newton (or something). This idea will be pruned by me on Monday. ravenswood, Jan 25 2002 Well hang on not so fast there sunny (with showers later and it'll be getting dark tonight). I think there's an important distinction between yours and mine, as it were. Yours sort of serves to highlight the chaos and free-for-all that true open source would offer, but it would also be a lot more variable than mine. It'd also be a movie, whereas mine's a tv series. What I really had in mind was an intentional 'process' that a participant would have to work through in order to participate, whereas yours offers solid gold easy access, in an almost direct manner. Mine's turned into an emphasis on the script being the end result medium - yours would (I'm confident) go that small step further and actually become a movie. I reckon they're discrete. Don't delete just because people see more of a similarity than I think there actually is. Rods Tiger, Jan 25 2002 I second that, I would like time to absorb both and see them develop. They may actually influence each other but what do I know? po, Jan 25 2002 OK, instead of mfd, I'll mark this one "gasping". ravenswood, Jan 25 2002 kiss of life, ravenswood..... po, Jan 25 2002 centauri, opensource isnt all the same. you could license something in such a way that new products could not be based on the existing one. ironfroggy, Apr 01 2002 An open source movie wouldn't have to only be a collaborative project. One could take the script, re-write it and shoot it themselves. The filming could even be open sourced. People could supply the source tapes of their film to anyone who wanted to edit all or part of the movie. There could be many different versions of the movie around. People could even take parts of each version they liked and make their own version. This could be possible since editing software and video equipment has gotten so much cheaper and simpler than it used to be. It would be like a fan film based on a movie or show, except it would be legal and neither the original or the derivitive work would be considered canon. It could be very messy but also very interesting. Jeremy S, Jun 07 2002 From tripta at sarai.net Thu Dec 5 17:06:23 2002 From: tripta at sarai.net (Tripta) Date: Thu, 5 Dec 2002 11:36:23 +0000 Subject: [Commons-Law] Fwd: law and theft Message-ID: <200212051136.23649.tripta@sarai.net> More on Law and it's theft... ---------- Forwarded Message ---------- Subject: law and theft Date: Wed, 04 Dec 2002 15:22:14 -0500 From: "McKenzie Wark" To: nettime-l at bbs.thing.net Richard writes that >Passing laws is not the same thing as making people obey them. The DCMA or >the EU Copyright Directive haven't stopped the sharing of information among >Net users. Just as privatising land and the means of production did not stop cattle rustling or hijacking trucks of cigarettes on the interstate. Not to mention the fabulous history of coastal smuggling.... The important thing is that until quite recently, this kind of info-sharing was not theft, for what was appropriated was not really property. In 19th century America, foreign authors had no protection at all. The idea that translations are copyrightable is also very recent. >As even the simplest versions of historical materialism point >out, the legal superstructure can - at best - only slow down the evolution >of the socio-economic base... I think this seriously underestimates law, and Marx's appreciation of law. What drives *changes* in the law is outside its provenance, and clearly comes in a large measure from "the evolution of the socio-economic base". That will do as a preliminary formulation. But law is much more than that. It creates a world of distinct objects that can be assigned criteria of owership and responsiblity. Without which there is no developed commodity economy. What is significant for our purposes is the creation of law that assigns rights to 'information'. On the basis of those rights, you can take your 'information' to market much as you would any other legally recognisable asset. This law, in its strict form, is very recent. It may be driven by technical-economic-social forces, but it legitimates the claims of those forces to a private right, and creates a much stronger basis for the commodification of new realms. As Jameson usefully points out, when Marx speaks of 'base' and 'superstructure', he is using railway terminology, for the tracks and the rolling stock. Its a much more useful -- and less dogmatic -- concept when undestood in those terms. # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- From alikyari10 at netscape.net Fri Dec 6 01:02:53 2002 From: alikyari10 at netscape.net (alikyari11@netscape.net) Date: Fri, 06 Dec 2002 01:02:53 Subject: [Commons-Law] KYARI Message-ID: <200212060802.gB682YW6031030@mail.sarai.net> STRICTLY CONFIDENTIAL FROM: ALI KYARI THE NETHERLANDS. Dear Sir, Compliment of the day, i am ALI KYARI the son of late General kubwa kyari of the Democratic Republic of Congo. my father was a General in the congolese Army.In his position (my father)with the office of the presidency during the regime of laurent kabila, he was assigned on a secret mission to source and acquire arms internationally in order to strenght the Government Force against the rebels which already had the support of Rwanda and uganda Army. Meanwhile, he was still negotiating for the purchase of the arms, he received on the 16TH january 2001 news of the assassination of Laurent kabila which force him to call off the assignment and deposited the sum of US$22.5M packed in a pravate security company in the Hague,the Netherlands,though he registered the content as precious stones,while the real content is (US$22.5M)Meant for the purchase of arms for the congolese Army. My father went home for the funeral of the late president, but on his arrival he was arrested,detained and tortured, unfortunately my father suffer cardiac arrest and died on the 17TH of march 2001.However,on one of our numerous visit my mother and i paid him while in prison,my father was able to reveal this secret to me and advice that i should proceed to the Netherlands to claim the money,he handed me all the relevant documents that will enable me claim the box from the security company. Already, i have made my first visit to the security compamy and the availability of this box have been comfirmed. On our arrival in THE NETHERLANDS few months ago, we sought for political assylum which was granted.My mother and I are making frantic effort on the best way to handle this money.We sought advice from an attorney who advised that we must seek for a trustworthy foreign business partner whom this money could be transfered into his /her (companys) account.This we view as the best option because our refugee status does not permit us to operate a bank account, hence we seek your assistance and hope you could be trusted. I got your contact from the commercial section of the congolese embassy in NETHERLAND.,meanwhile i sincerely ask for your assistance to get this money through your account, your share for assisting us will be 25% of the total sum 5% will be use for 70% that will be for me and my family.Also you stand to gain from any investment you might introduce us into after the conclusion of the transfer. Please keep this confidential until we finalise and get this money into your account for security reasons. THANKS AND GOD BLESS MR,ALI KYARI. From tripta at sarai.net Mon Dec 9 15:16:38 2002 From: tripta at sarai.net (tripta) Date: Mon, 9 Dec 2002 15:16:38 +0530 Subject: [Commons-Law] microsoft shared source Message-ID: <200212091516.38063.tripta@sarai.net> The following brings forth interesting reading and insight into the opensource licenses from within microsoft's license cell. The arguements made against GPL and other such licenses in order to protect information and intellectual property rights are particurlary interesting as it seems that they are using the same arguments made against them to strengthen their case. cheers Tripta ___________________________________________________________________ http://www.microsoft.com/licensing/sharedsource/ssfaq.asp http://www.microsoft.com/licensing/ Microsoft Shared Source Philosophy: Frequently Asked Questions February 8, 2002 On May 3, 2001, Microsoft stated our position regarding source licensing. The Commercial Software Model and the Shared Source Philosophy first outlined in a speech delivered by Microsoft Senior Vice President Craig Mundie and the accompanying white paper have generated a great deal of public discourse. We are pleased to be a part of this discussion and welcome all comments and constructive criticism. We subscribe to the Commercial Software Model which we believe to be more viable from a business perspective than the Open Source Software (OSS) model. We do not question the right of the OSS model to compete in the marketplace. The issue at hand is choice-companies and individuals have the choice of either model and we support their right to choose. This debate is about more than choosing a method of developing software. From a macro perspective, policy-makers need to assess the impact that open source software may have on the information technology industry as a critical driver of our global economy. In the year 2000, the worldwide packaged software industry employed 1.35 million people and produced tax revenues of approximately USD$28.2 billion (source: Business Software Alliance). The Commercial Software Model is the vehicle through which the global economy will continue to benefit from the software industry. Software providers need to assess the different business models to determine how sustainable, growth-oriented business can be built. Businesses built around a strong intellectual property (IP) base have a much greater chance to thrive. The contraction in the dot-com industry over the past few months came about, in part, due to the pervasive model of companies giving away valuable asset, like content, with the hope of making money selling something else later. The GNU General Public License (GPL), one of the most widely used OSS licenses, poses a significant threat to the IP base of companies seeking to build a business around GPL-covered software. Even businesses who may believe they are "mere users" of GPL software are threatened since they combine what they believe to be separate applications with GPL code. This licensing model has the effect of foreclosing a business's choice of what IP to share with the community and on what terms. In many cases there are far-reaching implications to policy decisions relating to this topic. We would like to address some of the core issues directly. The following are five of the most commonly raised questions/criticisms we received regarding our Shared Source Philosophy and our views on OSS. Q: What is Microsoft's Shared Source Philosophy? A: Shared Source is a balanced approach that allows us to share source code with customers and partners while maintaining the intellectual property rights needed to support a strong software business. Shared Source is a framework that creates business value and fosters technical innovation. It covers a variety of source licensing programs tailored to the diverse needs of customers and partners for source code access. Q: Why did Microsoft decide to highlight the Shared Source Philosophy at this time? A: We have reflected on this issue over a number of years and received requests from customers and partners to clearly state our position. It is important to have a framework to examine the debate from the business or technical perspective. The Commercial Software Model is based on the following classification: Community, Standards, Business Models, Investment (R&D), and Licensing. This is a debate about the importance of intellectual property in business and about the models being employed in the market today. Ultimately, it is individuals, businesses, the market and policy makers who together will decide the role of intellectual property in the economy. Q: Is Microsoft's Shared Source Philosophy a Response to Linux? A: Competition is a fundamental motivational force driving innovation and product improvements in many areas of business, ultimately benefiting the end consumer. Linux is one of Microsoft's many competitors. The issues that we are discussing in relation to the Commercial Software Model and Shared Source are much larger than Linux or Microsoft. There are fundamental concerns relating to the future of the software industry that need to be addressed. One such issue is the GNU General Public License. The wide use of Linux code and its licensing under the GPL presents a real threat to businesses and individuals who wish to obtain value from their intellectual property. Q: What is Microsoft's concern with the GNU General Public License? A: There is no question that the GPL is a complicated license that has led to a great deal of confusion. For the sake of clarity, we wish to reiterate our basic points in regard to the GPL and other OSS licenses: Some open source licenses are viral, that is, they require that all derivative works be licensed on the same terms as the original program. These licenses are described as viral because they "infect" derivative programs. Viral licenses vary in how infectious they are, depending on how they define which programs are derivative works. However, one of the dominant open source license-the GPL-is the most infectious. It attempts to subject any work that includes GPL-licensed code to the GPL. Thus, if a government or business uses even a few lines of GPL-licensed code in a program, and then re-distributes that program to others, it would be required to provide the program under the GPL. And, under the GPL, the recipient must be given access to the source code and the freedom to redistribute the program on a royalty-free basis. Open source licenses that are non-viral, on the other hand, permit software developers to integrate the licensed software and its source code into new products, often with much less significant restrictions. A prominent example of this type of license is the Berkeley Software Distribution (BSD) license. The BSD license allows programmers to use, modify, and redistribute the source code and binary code of the original software program, with or without modification. Moreover, programs containing code subject to the BSD license are subject to only limited obligations imposed by that license. This type of license gives users freedom to incorporate their own changes and redistribute them, without requiring them to publish the new source code or allow royalty-free redistribution. Q: How is intellectual property (IP) protection related to innovation? Why should society today rely on IP protection to foster innovation? A: We believe that for people to benefit from new ideas and realize the promise of innovation, a flow of data and information on a theoretical level must exist. This includes the protection of intellectual property on a practical level. In this way, companies investing in the creation of products and services can continue to innovate and differentiate in order to deliver new products and services to customers. Fundamentally innovation can be broken down into two parts: discovery and implementation. In the discovery phase, the flow of information and data is often necessary in order to experiment with, verify, and refute theories. Data is shared because it is an important part of the process required to replicate data and confirm the validity of theories. Neither copyright nor patent protections are available for abstract ideas or theories. This is how it should be. Copyright applies to the expression of an idea in a tangible medium, not to the underlying ideas themselves. Patents are issued for inventions-works that are non-obvious, novel, and useful-in exchange for enabling disclosures of the inventions, but can not claim the underlying theory. More generally, laws of nature, physical phenomena, and abstract ideas-the very stuff of science-are, by themselves, not patentable. Indeed, the great Albert Einstein himself worked in the Swiss patent office and considered himself to be an inventor. He held several patents from which he benefited financially. His patents covered a noiseless refrigerator, a hearing aid, a light intensity self-adjusting camera, and a gyrocompass. Many of his papers are (and remain) copyrighted, but he could neither have patented nor copyrighted the theory of relativity, even if he wanted to. A great idea on its own does not constitute innovation. The idea must also be implemented and take the shape of some tangible product or service that can deliver a benefit to a set of customers. This is where great inventors like Alexander Graham Bell, Thomas Edison, and Henry Ford excelled. They were able to build businesses around great ideas. They did this by delivering their innovations in unique, practical, useful implementation to a set of customers. Arguably, the amount of creativity and inventiveness that went into delivering their products and services was no less important than the underlying theory or discovery that made their business possible in the first place. Commercial product development draws upon discovery, invention, and new ideas based upon customer needs. The subsequent conversion of these elements into funds for additional innovation is a critical element of sustainable business practice. The Commercial Software Model provides the business model and research and development investment levels that will be the long-term choice for industries producing digital goods. From tripta at sarai.net Sat Dec 14 15:42:17 2002 From: tripta at sarai.net (tripta) Date: Sat, 14 Dec 2002 15:42:17 +0530 Subject: [Commons-Law] Fwd: FC: Request for articles for "Civil Liberties and Criminal Defense" Message-ID: <200212141542.17244.tripta@sarai.net> to whom it may interest. cheers tripta ---------- Forwarded Message ---------- Subject: FC: Request for articles for "Civil Liberties and Criminal Defense" Date: Thu, 12 Dec 2002 21:06:08 -0500 From: Declan McCullagh To: politech at politechbot.com --- Date: Wed, 11 Dec 2002 11:22:06 -0800 From: "Jordan" To: declan at well.com Hello Declan, On the off chance that your listees might be potential editorial contributors to our '03 debut issue dealing with "Civil Liberties and Criminal Defense," may I paste in our call for contributions? Let me know if there's something you might like to contribute as well. Best, Jordan Dear Friends of the Constitution! We very much share your concerns about the shredding of the Constitution and the increasingly unfortunate nature of the diminishment of civil liberties (and criminal defense) under the guise of the war against terrorism. —How on earth have we reached a point at which two American citizens can be held incommunicado without right to an attorney? Or the right to know the evidence against them? —How is that an American attorney (Lynne Stewart) is facing 40 years in prison for "providing material support to terrorists," by merely defending the interests of her client, who is in prison, and with whom all her conversations have been monitored by the Dept. of Justice? WHAT IS HAPPENING TO ATTORNEY-CLIENT PRIVILEGE? —Are the lower courts often defending the Constitution, while the higher courts are more often siding with the Justice Dept (as legal writer Jennifer Van Bergen found in an article published in CriminalDefense Weekly and truthout.org)? —What prevents the "terrorist" provisions of the PATRIOT and/or Homeland Security Act(s) from rolling over (eventually) to random criminal felons? Just as California's "three strikes" legislation was voted in as strict punishment against three "serious and violent felonies," but later prosecutors were making the third strike merely a "serious" felony, opting at times to make wobblers like shoplifting the third strike—just as we saw that kind of abuse on the government side, what would stop federal officials from taking advantage of these anti-terrorist provisions and applying similar methods and punishments to American felons? Is there a feature article, a how-to, or an op-ed column you would like to write for our "Civil Liberties and Criminal Defense" forum due out January 15? Please consider this and let me know. Deadline for receipt is Friday, Jan. 3. Best, Jordan Jordan Elgrably, Editor CriminalDefense.com Publishers of CriminalDefense Weekly (1st & 15th of the month) and CriminalDefense Review (Quarterly digest of CriminalDefense Weekly) "Crime, Punishment and the Constitution" 818/461-0937 ph. 818/461-0939 fx. editor at criminaldefense.com 12400 Ventura Blvd., Ste. 378 Studio City, CA 91604 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?qÞclan ------------------------------------------------------------------------- ------------------------------------------------------- From prashant20 at konzoo.com Sat Dec 14 23:43:19 2002 From: prashant20 at konzoo.com (Prashant Iyengar) Date: Sat, 14 Dec 2002 23:43:19 +0530 Subject: [Commons-Law] Fwd: FC: Request for articles for "Civil Liberties and Criminal Defense" In-Reply-To: <200212141542.17244.tripta@sarai.net> Message-ID: <000101c2a39c$7bd0c3a0$c5b2013d@srigit> Hi Junta, This is a mail from Eric Grimm who is the moderator of a Discussion Group called "Cyberia". It's a reaction to someone who said that Peer-to-peer file transfer would cripple industry. The counter argument makes for interesting reading. Prashant. Date: Tue, 3 Dec 2002 18:32:11 -0500 From: "Eric C. Grimm" Subject: Re: Labels Robert Helmer: ]> ]> He suggests for this reason p2p movie piracy's not a problem... To ]> take it to the next step: ]> ]> "If the industry is weakened too much by piracy, the pirates begin to ]> hurt themselves by drying up their source of material. It is very ]> doubtful that this will happen simply because the pirates, too, want ]> to go to movies." ]> ]> Give me a break...... On this point, I respectfully disagree with everyone who predicts apocalypse for the copyright industry (and there seem to be a lot of them, including Cringely in his last sentence) -- not only the lobbyists who use predictions of imminent cataclysm as a helpful tool to advocate more-restrictive DRM legislation, but also the so-called "cyber-anarchist" contingent that sometimes really does speak about the prospect of media apocalypse with seeming glee (although I'm unaware of any of them who advocates abolition of copyright entirely -- despite "straw man" industry assertions that they all do). The "media apocalypse" isn't going to happen. Never. Ever. Even if we abolish copyright altogether. Even if P-T-P file sharing becomes ubiquitous throughout the entire world, and *everybody* does it. (Both unlikely prospects, to tell the truth.) Things may change some. And perhaps even a company or two may be managed so badly that it goes out of business. But the industries will remain. And they'll be profitable. And they'll adjust. In many ways, I think it is helpful to avoid distractions such as debating whether it would be a good or bad thing for record companies and movie studios to collapse and vanish altogether, or whether they deserve it, or whether the prospect of such an outcome means that they deserve new and better laws to go after the people labeled "pirates" and "thieves" -- yet another unhelpful and distracting labeling exercise. The stakes of the debate just simply aren't so dire. Moreover, in light of the eagerness of movie studios and record companies to push discussions in the direction of debating the perceived utility of their imminent demise, I often question the wisdom of advocates for the other site who simply accept such premises about the magnitude of the stakes of the debate -- and then argue that such a future wouldn't be such a bad one. I don't care how good the software gets, or how big your personal "file-sharing" server grows, or how much bandwith you buy, beg, borrow, or steal to distribute files. You're not going to put these industries entirely out of business. And we'd all be better off if some of the effort that is being invested in file-trading could instead be invested in the production and distribution (for free or otherwise) of more cultural output to compete with the output of the media conglomerates. In other words, the last thing we need is people working night and day to propagate ***their*** memes (the media conglomerates' memes) more cheaply and more widely than those memes would be distributed if everyone had to pay for each copy. What we really need to do is invest more time and effort in making ***our*** memes more ubiquitous and accessible to everyone. The great thing that the Internet does is to make it easier for people, if they make a little effort, to access stuff other than the pure mainstream output of the media giants. That's the trend that is worth pushing. What really should terrify the media giants is the prospect that (like local newspapers losing market share to television, and as a result going out of business, or like television networks losing mindshare and market share to cable, and changing their business models as a result) the media giants might lose both marketshare and mindshare to sources of content (like us) who are not card-carrying members of their club. Some of us not only have industry-unapproved ideas, but ideas that are positively disapproved by "them." (Here's just one example -- only CNN's "Moneyline" show was willing to take a payment of several thousand dollars to run a "Buy Nothing Day" ad last Friday -- all the networks refused to take the money to run the ad because it was inconsistent with their business objectives and other advertisers might object to having their ads run alongside it. Expansion of the variety of opinions that can and should reach a wide audience is a much more exciting prospect than the vision of the future posited by a relatively small group of people who believe that the media giants need to lose marketshare only, as a result of competing with their own output -- just repackaged by someone who wants to give it away for free. One other thing I can state with certainty, on a related point, is that of all possible futures, I believe we'll all be better off in one with limited copyright terms (especially if even more limited than they are right now) -- much more than in the kind of future we would have in a world with copyright terms that span generations. After all, just imagine if the Disney corporation still had to pay royalties, for making the movie "Snow White" -- not only to a whole mess of people named "Grimm;" far too many to track down, really -- but also to the heirs of all the folk story-tellers from whom the Grimm Brothers got their material. What a nightmare if we lived in a world in which every performance or publication of a Shakespeare play needed to be accompanied by a royalty payment to the Shakespeare estate, and in which every Holy Bible ever sold needed to be properly licensed by ***all*** the authors' estates. Nevertheless, Jack Valenti tells us that, in the absence of royalty payments on such things as old movies, nobody will have any "incentive" ever to distribute or preserve artificts from the historic record. Which is tantamont to arguint that, in the absence of royalty payments to corporations or dead authors' estates, nobody would want to publish and sell the collected works of Shakespeare, or to protect and preserve the Dead Sea Scrolls, or very old Gutenberg Bibles (among other works and artifacts of historic merit). I think it is clear which side has the stronger argument. If only the two sides had comparable financial resources. ECG Also another debate on the group relating to the why "property" in intellect is oxymoronic... condensed below.. Date: Tue, 3 Dec 2002 20:27:43 -0500 From: Randall Subject: Re: Eric Grimm re: Zittrain: Call Off the Copyright War On Tuesday 03 December 2002 08:20 pm, Stephen C. Carlson wrote: > At 05:53 PM 12/3/02 -0500, Peter D. Junger wrote: > >If I infringe your patent or copyright there is nothing that I have > >taken from you that can be the subject of such a proprietary, i.e., > >restitutionary, action. You still have your copyright or your > >patent. > > I'm not sure I understand your point. If tresspass over your land, > you still have title to your land, no? If you trespass on his land, he cannot stand precisely where you are standing while you are standing there. From lawrenceliang at vsnl.net Sun Dec 15 10:46:53 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sun, 15 Dec 2002 10:46:53 +0530 (IST) Subject: [Commons-Law] The daily life of IPR Workshop Message-ID: <20021215051653.5A11A11498B@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20021215/bb073beb/attachment.pl From tripta at sarai.net Fri Dec 6 15:07:51 2002 From: tripta at sarai.net (Tripta) Date: Fri, 6 Dec 2002 09:37:51 +0000 Subject: [Commons-Law] [ilugd]: The FONT... Message-ID: <200212060937.51539.tripta@sarai.net> dear all, sorry for making a `technical' posting in this list. Avneesh and Shivaas are two school students who created fonts as part of a school competition and inspite of Microsoft's offer went a ahead and released under the Lesser general public license. Download the fonts and see the work in action. cheers Tripta ---------- Forwarded Message ---------- Subject: [ilugd]: The FONT... Date: 5 Dec 2002 16:27:04 -0000 From: "Avneesh / Shivaas" To: ilugd at wpaa.org hi, heres the latest font.. hope u like it:) sorry but i forgot to attach it in the previous mail Thanks, Avneesh Chhabra a.k.a. The Virus Shivaas Gulati a.k.a. MaRiAnZ Font Designers Font licensed Under LGPL(Free for every person, anywhere on the planet, present and future, forever) ------------------------------------------------------- ------------------------------------------------------- -------------- next part -------------- A non-text attachment was scrubbed... Name: hindi_latest.ttf Type: application/octet-stream Size: 74352 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20021206/d3952a45/attachment.obj From sudhir75 at hotmail.com Wed Dec 18 20:22:29 2002 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Wed, 18 Dec 2002 14:52:29 +0000 Subject: [Commons-Law] Fwd: POLITICS OF CODE - Conference at the University of Oxford, 6th February 2003 Message-ID: >From: "Oxford Internet Institute" >Reply-To: "Oxford Internet Institute" >To: >Subject: POLITICS OF CODE - Conference at the University of Oxford, 6th >February 2003 >Date: Wed, 18 Dec 2002 12:23:42 -0000 > >The Programme in Comparative Media Law and Policy and the Oxford >Internet Institute are convening a conference "Politics of Code - >Shaping the Future of the Next Internet" to be held in Oxford on >February 6th 2003. Speakers will include Prof. Larry Lessig and Esther >Dyson. > >To register and find more information please go to, >http://pcmlp.socleg.ox.ac.uk/code/ > >Apologies for cross-posting > >-- >Dr Victoria Nash >Policy and Research Officer >Oxford Internet Institute >1 St Giles, Oxford OX1 3JS > >01865 287231 > >1.To remove your name from the oii-news mailing list, please send an email >to: > majordomo at maillist.ox.ac.uk >with the following message in the body text: > unsubscribe oii-news >No subject line is necessary; it will be ignored by the system. > >2. To change your address in the mailing list you should first unsubscribe >as at 1. above and then re-subscribe by sending an email from your new >address to: > majordomo at maillist.ox.ac.uk >with the following message in the body text: > subscribe oii-news >Again no subject line is necessary. > >Any comments or enquiries about the OII can still be sent to >enquiries at oii.ox.ac.uk. Please note that the OII office will be closed from >5pm GMT on 20th December 2002 and re-open at 9am GMT on 2nd January 2003. _________________________________________________________________ MSN 8 helps eliminate e-mail viruses. Get 2 months FREE*. http://join.msn.com/?page=features/virus From tripta at sarai.net Mon Dec 16 17:08:54 2002 From: tripta at sarai.net (tripta) Date: Mon, 16 Dec 2002 17:08:54 +0530 Subject: [Commons-Law] MAI SYSTEMS CORP. v. PEAK COMPUTER Message-ID: <200212161708.54422.tripta@sarai.net> Dear all, I am new to this, the legal jargon, the cases and trying to understand what they mean, what they are saying to what end. This case, the refernce to which i got from a friend, particulary struck me! In this the case software code loaded on the Random Access Memory for more than few minutes is held for the purposes of copyright laws. ____________________________________________________________________ MAI SYSTEMS CORP. v. PEAK COMPUTER, INC., 991 F.2d 511 (9th Cir. 1993) BEFORE: PREGERSON, BRUNETTI, and FERNANDEZ, Circuit Judges. BRUNETTI, Circuit Judge: [1] Peak Computer, Inc. and two of its employees appeal the district court's order issuing a preliminary injunction pending trial as well as the district court's order issuing a permanent injunction following the grant of partial summary judgment. [2] I. FACTS [3] MAI Systems Corp., until recently, manufactured computers and designed software to run those computers. The company continues to service its computers and the software necessary to operate the computers. MAI software includes operating system software, which is necessary to run any other program on the computer. [4] Peak Computer, Inc. is a company organized in 1990 that maintains computer systems for its clients. Peak maintains MAI computers for more than one hundred clients in Southern California. This accounts for between fifty and seventy percent of Peak's business. [5] Peak's service of MAI computers includes routine maintenance and emergency repairs. Malfunctions often are related to the failure of circuit boards inside the computers, and it may be necessary for a Peak technician to operate the computer and its operating system software in order to service the machine. [6] In August, 1991, Eric Francis left his job as customer service manager at MAI and joined Peak. Three other MAI employees joined Peak a short time later. Some businesses that had been using MAI to service their computers switched to Peak after learning of Francis's move. [7] II. PROCEDURAL HISTORY [8] On March 17, 1992, MAI filed suit in the district court against Peak, Peak's president Vincent Chiechi, and Francis. The complaint includes counts alleging copyright infringement, misappropriation of trade secrets, trademark infringement, false advertising, and unfair competition. [9] MAI asked the district court for a temporary restraining order and preliminary injunction pending the outcome of the suit. The district court issued a temporary restraining order on March 18, 1992 and converted it to a preliminary injunction on March 26, 1992. On April 15, 1992, the district court issued a written version of the preliminary injunction along with findings of fact and conclusions of law. [10] The preliminary injunction reads as follows: A. Defendants [and certain others] are hereby immediately restrained and enjoined pending trial of this action from: 1. infringing MAI's copyrights in any manner and from using, publishing, copying, selling, distributing or otherwise disposing of any copies or portions of copies of the following MAI copyrighted computer program packages: "MPx," "SPx," "GPx40," and "GPx70" (collectively hereinafter, "The Software"); 2. misappropriating, using in any manner in their business including advertising connected therewith, and/or disclosing to others MAI's trade secrets and confidential information, including, without limitation, The Software, MAI's Field Information Bulletins ("FIB") and Customer Database; 3. maintaining any MAI computer system, wherein: (a) "maintaining" is defined as the engaging in any act, including, without limitation, service, repair, or upkeep in any manner whatsoever, that involves as part of such act, or as a preliminary or subsequent step to such act, the use, directly or indirectly, of The Software, including, without limitation, MAI's operating system, diagnostic, utility, or other software; (b) "use" is defined as including, without limitation, the acts of running, loading, or causing to be run or loaded, any MAI software from any magnetic storage or read-only-memory device into the computer memory of the central processing unit of the computer system; and (c) "computer system" is defined as an MAI central processing unit in combination with either a video display, printer, disk drives, and/or keyboard; 4. soliciting any MAI computer maintenance customer pursuant to Francis' employment contracts with MAI; 5. maintaining any contract where customer information was obtained by Francis while employed by MAI pursuant to Francis' employment contract with MAI; 6. using in any manner in their business, or in advertising connected therewith, directly or indirectly, the trademarks MAI, BASIC FOUR, and/or MAI Basic Four, the letters MAI (collectively, the "MAI Trademarks") or any mark, word, or name similar to or in combination with MAI's marks that are likely to cause confusion, mistake or to deceive; 7. committing any act which otherwise infringes any of the MAI Trademarks; 8. advertising, directly or indirectly, that MAI Basic Four is part of Peak's Product line, that Peak has "satellite facilities," and/or that Peak's technicians are "specifically trained on the latest hardware releases of MAI;" and 9. engaging in any other acts that amount to unfair competition with MAI. B. IT IS FURTHER ORDERED that Defendants [and certain others] shall hereby, pending trial in this action: 1. provide a full accounting of all MAI property, including all copyrighted works presently in their possession; and 2. retain any fees paid to them by any MAI maintenance client and place any such fees in an interest bearing escrow account pending final determination of the action at trial or further order of this Court. [11] We stayed the preliminary injunction in part by an order of June 9, 1992 which provides: The preliminary injunction issued by the district court on April 15, 1992 is stayed to the following extent: Section (A)(1), enjoining defendants from "infringing MAI's copyrights in any manner and from using, publishing, copying, selling, distributing, or otherwise disposing of any copies or portions of copies" or certain MAI software, is stayed to the extent that it prohibits defendants from operating MAI computers in order to maintain them. Section A(2), enjoining defendants from misappropriating MAI trade secrets, is stayed to the extent that it prohibits defendants from operating MAI computers in order to maintain them. Section A(3), enjoining defendants from "maintaining any MAI computer system," is stayed in its entirety, including subsections (a), (b), and (c). Section (B), ordering defendants to "provide a full accounting of all MAI property" and to retain fees paid to them by "any MAI maintenance client" in an escrow account, is stayed in its entirety, including subsections (1) and (2). The remainder of the district court's preliminary injunction shall remain in effect. This order shall remain in effect pending further order of this court. [12] In January, 1993, we denied a motion by Peak to stay the district court proceedings. The district court then heard a motion for partial summary judgment on some of the same issues raised in the preliminary injunction. The district court granted partial summary judgment for MAI and entered a permanent injunction on the issues of copyright infringement and misappropriation of trade secrets on February 2, 1993 which provides: A. Defendants [and certain others] are hereby permanently enjoined as follows: 1. Peak [and certain others] are permanently enjoined from copying, disseminating, selling, publishing, distributing, loaning, or otherwise infringing MAI's copyrighted works, or any derivatives thereof, including those works for which registrations have issued, and works for which registrations may issue in the future. The "copying" enjoined herein specifically includes the acts of loading, or causing to be loaded, directly or indirectly, any MAI software from any magnetic storage or read only memory device into the electronic random access memory of the central processing unit of a computer system. As used herein, "computer system" means an MAI central processing unit in combination with either a video display, printer, disk drives, and/or keyboard. MAI's copyrighted works, and their derivatives, for which registrations have issued include: Work Cert. of Reg. No. Date Issued BOSS/IX SOFTWARE VERSION 7.5B[*]20 TX 3 368 502 12/16/91 BOSS/VS LEVEL 7A[*]42 TXU 524 424 (Supp.) 7/01/92 DIAGNOSTICS TXU 507 015 (Basic) 3/09/92 BOSS/VS LEVEL 7.5B TXU 524 423 (Supp.) 7/01/92 DIAGNOSTICS TXU 507 013 (Basic) 3/09/92 Additional MAI copyright registrations are listed on Exh. A hereto. 2. (a) Peak and Francis [and certain others] are permanently enjoined from misappropriating, using in any manner in their business, including advertising connected therewith, and/or disclosing to others MAI's trade secrets, as that term is used in California Civil Code § 3426.1(d). MAI's trade secrets, for purposes of this injunction, shall include, but not be limited to the following: MAI's software, MAI's Field Information Bulletins ("FIB") and all information in such FIB's, and MAI Customer Database and all information in such Database. (b) In particular, the persons identified in subparagraph (a) herein are permanently enjoined from soliciting any MAI computer maintenance customer and from maintaining any contract with any former MAI computer maintenance customer where knowledge of any such customers was obtained by Francis during his employment with MAI. [13] We then stayed the permanent injunction in part by an order on February 4, 1993 which provides: Appellants' emergency motion for stay of the district court's permanent injunction is granted in part. The injunction entered by the district court on February 2, 1993 is stayed to the following extent: Section (A)(1), enjoining defendants from "infringing MAI's copyrighted works," is stayed to the extent that it prohibits defendants from loading MAI software or operating MAI computers in order to maintain them. Section A(2), enjoining defendants from misappropriating MAI trade secrets, is stayed to the extent that it prohibits defendants from loading MAI software or operating MAI computers in order to maintain them. The remainder of the district court's permanent injunction shall remain in effect . . . . [14] Since the permanent injunction covers some of the same issues appealed in the preliminary injunction, the appeal of those issues in the context of the preliminary injunction has become moot. See Burbank-Glendale-Pasadena Airport Authority v. Los Angeles, 979 F.2d 1338, 1340 n. 1 (9th Cir. 1992). Therefore, we grant MAI's motion to dismiss the appeal of the preliminary injunction relative to the issues of copyright infringement and trade secret misappropriation. Since other issues covered in the preliminary injunction are not covered in the permanent injunction,[n1] the appeals have been consolidated and both the permanent injunction and parts of the preliminary injunction are reviewed here. [15] III. JURISDICTION AND STANDARD OF REVIEW [16] We have jurisdiction over interlocutory orders granting injunctions under 28 U.S.C. § 1292(a)(1). In addition, an appeal under 28 U.S.C. § 1292(a)(1) brings before the court the entire order, and, in the interests of judicial economy the court may decide the merits of the case. The court, however, generally will chose to decide only those matters `inextricably bound up with' the injunctive relief. [17] Bernard v. Air Line Pilots Ass'n, Int'l, AFL-CIO, 873 F.2d 213, 215 (9th Cir. 1989) (citations omitted). [18] In this case, the district court's grant of the permanent injunction is "inextricably bound up" with the underlying decisions of that court on the merits of the copyright and trade secrets claims. Therefore, our review of the propriety of the permanent injunction is inextricably tied to the underlying decision, and this court has jurisdiction to review the entire order. Id. [19] A grant of summary judgment is reviewed de novo.[n2] We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992). The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Id. [20] A district court's grant of preliminary injunctive relief is subject to limited review. This court will reverse a preliminary injunction only where the district court "abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." However, "questions of law underlying the issuance of a preliminary injunction" are reviewed de novo. Glick v. McKay, 937 F.2d 434, 436 (9th Cir. 1991). [21] "To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the movant's] favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (internal quotations and citations omitted). [22] In other words, "[w]here a party can show a strong chance of success on the merits, he need only show a possibility of irreparable harm. Where, on the other hand, a party can show only that serious questions are raised, he must show that the balance of hardships tips sharply in his favor." Bernard v. Air Line Pilots Ass'n, Int'l, AFL-CIO, 873 F.2d 213, 215 (9th Cir. 1989). [23] IV. COPYRIGHT INFRINGEMENT [24] The district court granted summary judgment in favor of MAI on its claims of copyright infringement and issued a permanent injunction against Peak on these claims. The alleged copyright violations include: (1) Peak's running of MAI software licensed to Peak customers; (2) Peak's use of unlicensed software at its headquarters; and, (3) Peak's loaning of MAI computers and software to its customers. Each of these alleged violations must be considered separately. [25] A. Peak's running of MAI software licensed to Peak customers [26] To prevail on a claim of copyright infringement, a plaintiff must prove ownership of a copyright and a "`copying' of protectable expression" beyond the scope of a license. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir. 1989). [27] MAI software licenses allow MAI customers to use the software for their own internal information processing.[n3] This allowed use necessarily includes the loading of the software into the computer's random access memory ("RAM") by a MAI customer. However, MAI software licenses do not allow for the use or copying of MAI software by third parties such as Peak. Therefore, any "copying" done by Peak is "beyond the scope" of the license. [28] It is not disputed that MAI owns the copyright to the software at issue here, however, Peak vigorously disputes the district court's conclusion that a "copying" occurred under the Copyright Act. The Copyright Act defines "copies" as: material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. [29] 17 U.S.C. § 101. [30] The Copyright Act then explains: A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. [31] 17 U.S.C. § 101. [32] The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law. [33] Peak concedes that in maintaining its customer's computers, it uses MAI operating software "to the extent that the repair and maintenance process necessarily involves turning on the computer to make sure it is functional and thereby running the operating system." It is also uncontroverted that when the computer is turned on the operating system is loaded into the computer's RAM. As part of diagnosing a computer problem at the customer site, the Peak technician runs the computer's operating system software, allowing the technician to view the systems error log, which is part of the operating system, thereby enabling the technician to diagnose the problem.[n4] [34] Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." [35] After reviewing the record, we find no specific facts (and Peak points to none) which indicate that the copy created in the RAM is not fixed. While Peak argues this issue in its pleadings, mere argument does not establish a genuine issue of material fact to defeat summary judgment. A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials in pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989). [36] The law also supports the conclusion that Peak's loading of copyrighted software into RAM creates a "copy" of that software in violation of the Copyright Act. In Apple Computer, Inc. v. Formula Int'l, Inc., 594 F. Supp. 617, 621 (C.D.Cal. 1984), the district court held that the copying of copyrighted software onto silicon chips and subsequent sale of those chips is not protected by § 117 of the Copyright Act. Section 117 allows "the `owner'[n5] of a copy of a computer program to make or authorize the making of another copy" without infringing copyright law, if it "is an essential step in the utilization of the computer program" or if the new copy is "for archival purposes only." 17 U.S.C. § 117 (Supp. 1988).[n6] One of the grounds for finding that § 117 did not apply was the court's conclusion that the permanent copying of the software onto the silicon chips was not an "essential step" in the utilization of the software because the software could be used through RAM without making a permanent copy. The court stated: RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. Thus, the purchaser of [software] desiring to utilize all of the programs on the diskette could arrange to copy [the software] into RAM. This would only be a temporary fixation. It is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost. [37] Apple Computer at 622. [38] While we recognize that this language is not dispositive, it supports the view that the copy made in RAM is "fixed" and qualifies as a copy under the Copyright Act. [39] We have found no case which specifically holds that the copying of software into RAM creates a "copy" under the Copyright Act. However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act. See e.g. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988) ("the act of loading a program from a medium of storage into a computer's memory creates a copy of the program"); 2 Nimmer on Copyright, § 8.08 at 8-105 (1983) ("Inputting a computer program entails the preparation of a copy."); Final Report of the National Commission on the New Technological Uses of Copyrighted Works, at 13 (1978) ("the placement of a work into a computer is the preparation of a copy"). We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory ("ROM"). However, since we find that the copy created in the RAM can be "perceived, reproduced, or otherwise communicated," we hold that the loading of software into the RAM creates a copy under the Copyright Act. 17 U.S.C. § 101. We affirm the district court's grant of summary judgment as well as the permanent injunction as it relates to this issue. [40] B. Use of unlicensed software at headquarters [41] It is not disputed that Peak has several MAI computers with MAI operating software "up and running" at its headquarters. It is also not disputed that Peak only has a license to use MAI software to operate one system. As discussed above, we find that the loading of MAI's operating software into RAM, which occurs when an MAI system is turned on, constitutes a copyright violation. We affirm the district court's grant of summary judgment in favor of MAI on its claim that Peak violated its copyright through the unlicensed use of MAI software at Peak headquarters, and also affirm the permanent injunction as it relates to this issue. [42] C. Loaning of MAI computers and software [43] MAI contends that Peak violated the Copyright Act by loaning MAI computers and software to its customers. Among the exclusive rights given to the owner of a copyrighted work is the right to distribute copies of the work by lending. 17 U.S.C. § 106(3). Therefore, Peak's loaning of MAI software, if established, would constitute a violation of the Copyright Act. [44] MAI argues that it is clear that Peak loaned out MAI computers because Peak advertisements describe the availability of loaner computers for its customers and Chiechi admitted that the available loaners included MAI computers. However, there was no evidence that a MAI computer was ever actually loaned to a Peak customer. Paul Boulanger, a Senior Field Engineer at Peak, testified in his deposition that he was not aware of any MAI systems being loaned to Peak customers or of any customer asking for one. Charles Weiner, a Field Service Manager at Peak, testified in his deposition that he did not have any knowledge of MAI systems being loaned to customers. Weighing this evidence in the light most favorable to Peak, whether Peak actually loaned out any MAI system remains a genuine issue of material fact. [45] As a general rule, a permanent injunction will be granted when liability has been established and there is a threat of continuing violations. See, National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 732 (8th Cir. 1986); 3 Nimmer on Copyright § 14.06[B] at 14-88. However § 502(a) of the Copyright Act authorizes the court to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502(a) (emphasis added). While there has been no showing that Peak has actually loaned out any MAI software, the threat of a violation is clear as Peak has MAI computers in its loaner inventory. The permanent injunction is upheld as it relates to this issue. [46] V. MISAPPROPRIATION OF TRADE SECRETS [47] The district court granted summary judgment in favor of MAI on its misappropriation of trade secrets claims and issued a permanent injunction against Peak on these claims. The permanent injunction prohibits Peak from "misappropriating, using in any manner in their business, including advertising connected therewith, and/or disclosing to others MAI's trade secrets," including: (1) MAI Customer Database; (2) MAI Field Information Bulletins ("FIB"); and, (3) MAI software. [48] Peak argues that since MAI's motion for summary judgment only included argument regarding the customer database as a trade secret that the grant of summary judgment on the FIBs and software was overbroad. However, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court held that "so long as the losing party was on notice that she had to come forward with all of her evidence," summary judgment can properly be entered. Id. at 326, 106 S.Ct. at 2554. Although Celotex dealt with the court's authority to grant summary judgment sua sponte, its notice analysis is applicable to any summary judgment motion. [49] MAI argues that Peak had adequate notice because, while MAI only presented argument regarding the customer database, it moved for summary judgment on its claims of misappropriation of trade secrets generally, and, because MAI's Statement of Uncontroverted Facts included statements that the FIBs and software were trade secrets. We agree. However, we do not agree with MAI's contention that Peak has waived its right to appeal summary judgment on these issues by failing address the merits in the district court. Therefore, we reach the merits of the grant of summary judgment on each trade secret claim. [50] A. Customer Database [51] California has adopted the Uniform Trade Secrets Act ("UTSA") which codifies the basic principles of common law trade secret protection. Cal.Civ. Code §§ 3426-3426.10 (West Supp. 1993). To establish a violation under the UTSA, it must be shown that a defendant has been unjustly enriched by the improper appropriation, use or disclosure of a "trade secret." [52] Peak argues both that the MAI Customer Database is not a "trade secret," and that even if it is a trade secret, that Peak did not "misappropriate" it. [53] The UTSA defines a "trade secret" as: information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. [54] Cal.Civ. Code § 3426.1(d) (West Supp. 1993). [55] MAI contends its Customer Database is a valuable collection of data assembled over many years that allows MAI to tailor its service contracts and pricing to the unique needs of its customers and constitutes a trade secret. [56] We agree that the Customer Database qualifies as a trade secret. The Customer Database has potential economic value because it allows a competitor like Peak to direct its sales efforts to those potential customers that are already using the MAI computer system. Further, MAI took reasonable steps to insure the secrecy to this information as required by the UTSA. MAI required its employees to sign confidentiality agreements respecting its trade secrets, including the Customer Database. Thus, under the UTSA, the MAI Customer Database constitutes a trade secret. [57] We also agree with MAI that the record before the district court on summary judgment establishes that Peak misappropriated the Customer Database. [58] "Misappropriation" is defined under the UTSA as: (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;[n7] or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or by mistake. [59] Cal.Civ. Code § 3426.1(b) (West Supp. 1993). [60] Peak contends that Francis never physically took any portion of MAI's customer database and that neither Francis nor anyone under his direction put information he had obtained from working at MAI in the Peak database. However, to find misappropriation under the UTSA, this need not be established. [61] The UTSA definition of "misappropriation" has been clarified by case law which establishes that the right to announce a new affiliation, even to trade secret clients of a former employer, is basic to an individual's right to engage in fair competition, and that the common law right to compete fairly and the right to announce a new business affiliation have survived the enactment of the UTSA. American Credit Indem. Co. v. Sacks, 213 Cal.App.3d 622, 262 Cal.Rptr. 92, 99-100 (Cal. Ct.App. 1989). However, misappropriation occurs if information from a customer database is used to solicit customers. Id. [62] Merely informing a former employer's customers of a change of employment, without more, is not solicitation. Id. 262 Cal.Rptr. at 99 (citing Aetna Bldg. Maintenance Co. v. West, 39 Cal.2d 198, 246 P.2d 11 (1952)). However, in this case, Francis did more than merely announce his new affiliation with Peak. When Francis began working for Peak, he called MAI customers whose names he recognized. Additionally, Francis personally went to visit some of these MAI customers with proposals to try and get them to switch over to Peak. These actions constituted solicitation and misappropriation under the UTSA definition. We affirm the district court's grant of summary judgment in favor of MAI on its claim that Peak misappropriated its Customer Database and affirm the permanent injunction as it relates to this issue. [63] B. Field Information Bulletins [64] MAI argues summary judgment was properly granted on its claim of misappropriation of the FIBs because the FIBs are a valuable trade secret of MAI and the evidence showed that the FIBs were being used by Peak to operate a business competing unfairly with MAI. [65] We agree that the FIBs constitute trade secrets. It is uncontroverted that they contain technical data developed by MAI to aid in the repair and servicing of MAI computers, and that MAI has taken reasonable steps to insure that the FIBs are not generally known to the public. [66] However, whether Peak has misappropriated the FIBs remains a genuine issue of material fact. The only evidence introduced by MAI to establish Peak's use of the FIBs is Peak's advertisements claiming that "Peak's system specialists are specifically trained on the latest hardware releases on MAI Basic Four." MAI asserts that if Peak did not use FIBs that this claim would have to be false. However, Weiner and Boulanger testified in their depositions that they had never seen a FIB at Peak. Similarly, Boulanger, Robert Pratt and Michael McIntosh[n8] each testified that they did not have any FIB information when they left MAI. Weighing this evidence in the light most favorable to Peak, whether Peak used any of the FIBs remains a genuine issue of material fact, and the district court's grant of summary judgment on this claim of trade secret misappropriation is reversed and the permanent injunction is vacated as it relates to this issue. [67] C. Software [68] MAI contends the district court properly granted summary judgment on its claim of misappropriation of software because its software constitutes valuable unpublished works that allow its machines to be maintained. MAI argues that Peak misappropriated the software by loading it into the RAM. [69] We recognize that computer software can qualify for trade secret protection under the UTSA. See e.g., S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1089-90 (9th Cir. 1989). However, a plaintiff who seeks relief for misappropriation of trade secrets must identify the trade secrets and carry the burden of showing that they exist. Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 67 Cal.Rptr. 19, 22-24 (1968); see also Universal Analytics Inc. v. MacNeal-Schwendler Corp., 707 F. Supp. 1170, 1177 (C.D.Cal. 1989) (plaintiff failed to inform defendant or the court "precisely which trade secret it alleges was misappropriated"), aff'd, 914 F.2d 1256 (9th Cir. 1990). [70] Here, while MAI asserts that it has trade secrets in its diagnostic software and operating system, and that its licensing agreements constitute reasonable efforts to maintain their secrecy, MAI does not specifically identify these trade secrets. In his Declaration, Joseph Perez, a Customer Service Manager at MAI, stated that the diagnostic software "contain valuable trade secrets of MAI," however, the Declaration does not specify what these trade secrets are. Additionally, we find no declaration or deposition testimony which specifically identifies any trade secrets. Since the trade secrets are not specifically identified, we cannot determine whether Peak has misappropriated any trade secrets by running the MAI operating software and/or diagnostic software in maintaining MAI systems for its customers, and we reverse the district court's grant of summary judgment in favor of MAI on its claim that Peak misappropriated trade secrets in its computer software and vacate the permanent injunction as it relates to this issue. [71] VI. BREACH OF CONTRACT [72] The district court granted summary judgment in favor of MAI on its breach of contract claim against Eric Francis. It is clear from the depositions of Francis and Chiechi that Francis solicited customers and employees of MAI in breach of his employment contract with MAI, and we affirm the district court's grant of summary judgment on this issue and affirm the permanent injunction as it relates to this claim. [73] VII. PRELIMINARY INJUNCTION [74] A. Trademark Infringement [75] In granting the preliminary injunction, the district court found that Peak advertisements that "MAI Basic Four" computers are part of "Peak's Product Line" imply that Peak is a MAI dealer for new computers and constitute trademark infringement. The district court also found that: "Such acts are likely to cause confusion, mistake or deception in that potential purchasers of MAI computers and/or maintenance services will be led to believe that Peak's activities are associated with or sanctioned or approved by MAI." [76] Peak claims that the district court erred in granting the preliminary injunction because it did not apply the legal tests established by the Ninth Circuit to evaluate whether a likelihood of confusion existed. See e.g., J.B. Williams Co. v. Le Conte Cosmetics, Inc., 523 F.2d 187, 191 (9th Cir. 1975) (five factor test to determine likelihood of confusion) cert. denied, 424 U.S. 913, 96 S.Ct. 1110, 47 L.Ed.2d 317 (1976), AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979) (eight factor test). However, the district court was not required to consider all these factors. As we recognized in Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521 (9th Cir. 1984): [I]n granting a preliminary injunction, the parties will not have had a full opportunity to either develop or present their cases and the district court will have had only a brief opportunity to consider the different factors relative to the likelihood of confusion determination. . . . The appropriate time for giving full consideration to [these factors] is when the merits of the case are tried. [77] Id. at 526 (citations and quotations omitted). [78] Peak has not shown how the district court clearly erred in its preliminary trademark conclusions. Accordingly, the district court did not abuse its discretion and this portion of the preliminary injunctions is upheld. [79] B. False Advertising [80] In granting the preliminary injunction, the district court found that "Peak's advertising . . . falsely misleads the public as to Peak's capability of servicing and maintaining MAI computer systems." The injunction prohibits Peak from "advertising, directly or indirectly, that MAI Basic Four is part of Peak's Product line, that Peak has `satellite facilities,' and/or that Peak's technicians are `specifically trained on the latest hardware releases of MAI.'" [81] Peak argues that these representations in its ads are not false. However, the district court's findings are supported by the record. Depositions show that Peak is not an authorized MAI dealer, that its technicians receive no ongoing training and that its "satellite facilities" are actually storage sheds. Perhaps the storage sheds could be legitimately characterized as satellite facilities, but the district court's conclusion otherwise was not clearly erroneous. Accordingly, the district court did not abuse its discretion and this portion of the preliminary injunction is upheld. [82] VIII. CONCLUSION [83] The following sections of the preliminary injunction issued by the district court on April 15, 1992 have been mooted by that court's issuing of a permanent injunction: [84] Section (A)(1), enjoining defendants from infringing MAI's copyrights; Section (A)(2) enjoining defendants from misappropriating MAI trade secrets; Section (A)(3) enjoining defendants from maintaining MAI computers; Section (A)(4) enjoining defendants from soliciting customers; and, Section (A)(5) enjoining defendants from maintaining certain customer contracts. [85] The remainder of the district court's preliminary injunction shall remain in effect pending the district court's final judgment. Earlier orders of this court temporarily staying portions of the injunction are vacated. [86] The permanent injunction issued by the district court on February 2, 1993, is vacated to the following extent: [87] Section (A)(2)(a), enjoining defendants from "misappropriating . . . MAI's trade secrets" is vacated as it relates to MAI's software and MAI's Field Information Bulletins. [88] The remainder of the permanent injunction shall remain in effect. Earlier orders of this court temporarily staying portions of the injunction are vacated. [89] The district court's grant of summary judgment is AFFIRMED in part and REVERSED in part. This case is REMANDED for proceedings consistent with this opinion. *. The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App.P. 34(a); Ninth Circuit Rule 34-4. 1. These issues include trademark infringement and false advertising. 2. The Central District of California's Local Rule 7.14 provides for the filing of a Statement of Uncontroverted Facts and Conclusions of Law with each motion for summary judgment and for the filing of a Statement of Genuine Issues of Material Fact with all opposition papers. In granting summary judgment, the district court had before it these papers as well as MAI's Motion for Summary Judgment, Peak's Opposition, and MAI's Response. MAI's Statement of Uncontroverted Facts and Conclusions of Law and Peak's Statement of Genuine Issues of Material Fact rely on the declarations and deposition testimony which were filed with the district court in connection with MAI's earlier motion for a preliminary injunction. These declarations and deposition testimony make up the record in this case. 3. A representative MAI software license provides in part: 4. Software License. (a) License. . . . Customer may use the Software (one version with maximum of two copies permitted - a working and a backup copy) . . . solely to fulfill Customer's own internal information processing needs on the particular items of Equipment . . . for which the Software is configured and furnished by [MAI]. The provisions of this License . . . shall apply to all versions and copies of the Software furnished to Customer pursuant to this Agreement. The term "Software" includes, without limitation, all basic operating system software. . . . (b) Customer Prohibited Acts. . . . Any possession or use of the Software . . . not expressly authorized under this License or any act which might jeopardize [MAI]'s rights or interests in the Software . . . is prohibited, including without limitation, examination, disclosure, copying, modification, reconfiguration, augmentation, adaptation, emulation, visual display or reduction to visually perceptible form or tampering. . . . (c) Customer Obligations. Customer acknowledges that the Software is [MAI]'s valuable and exclusive property, trade secret and copyrighted material. Accordingly, Customer shall . . . (i) use the Software . . . strictly as prescribed under this License, (ii) keep the Software . . . confidential and not make [it] available to others. . . . . A representative diagnostic license agreement provides in part: 6. Access/Non-Disclosure. Licensee shall not give access nor shall it disclose the Diagnostics (in any form) . . . to any person . . . without the written permission of [MAI]. Licensee may authorize not more than three (3) of its bona fide employees to utilize the Diagnostics . . . if, and only if, they agree to be bound by the terms hereof. 4. MAI also alleges that Peak runs its diagnostic software in servicing MAI computers. Since Peak's running of the operating software constitutes copyright violation, it is not necessary for us to directly reach the issue of whether Peak also runs MAI's diagnostic software. However, we must note that Peak's field service manager, Charles Weiner, admits that MAI diagnostic software is built into the MAI MPx system and, further, that if Peak loads the MAI diagnostic software from whatever source into the computer's RAM, that such loading will produce the same copyright violation as loading the operating software. 5. Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under § 117. 6. The current § 117 was enacted by Congress in 1980, as part of the Computer Software Copyright Act. This Act adopted the recommendations contained in the Final Report of the National Commission on New Technological Uses of Copyrighted Works ("CONTU") (1978). H.R.Rep. No. 1307, 96th Cong., 2d Sess., pt. 1, at 23. The CONTU was established by Congress in 1974 to perform research and make recommendations concerning copyright protection for computer programs. The new § 117 reflects the CONTU's conclusion that: "Because the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability." Final Report at 13. 7. The UTSA defines "improper means," as "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." Cal.Civ. Code § 3426.1(a) (West Supp. 1993). 8. Pratt and Boulanger are both computer technicians who left MAI to work at Peak. From shuddha at sarai.net Thu Dec 19 11:41:49 2002 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Thu, 19 Dec 2002 11:41:49 +0530 Subject: [Commons-Law] The Worst is Always Precise Message-ID: <02121911414901.01098@sweety.sarai.kit> Dear friends, I am prompted to write this somewhat inordinately long posting by the news of the sentencing of SAR Gilani, and two others, to death in the trial pertaining to the attack on the Indian Parliament of December 13, last year. The one other time, when the 'management' of the fall out of an attack on a parliament yielded such positive fruit to people in power was when on the 27th of February, 1933, (exactly 69 years and a day,to the day, before the killings started in Gujarat this year),that the Reichstag (parliament) caught fire in Berlin. The consequences of that event, the trials and the laws that followed it, are too well known for me to go into in detail. A few days ago, the beneficiaries of the events of Gujarat could be seen celebrating the fruits of electoral success. The Reichstag Fire, the fall out of the attack on the Parliament, the events in Gujarat last week, and yesterday's court verdict in New Delhi seem to have set off a strange game of ricocheting, and oddly connected realities. It is in an effort to understand the ground rules of this game, that I began thinking of writing what I would like to share with you today. I hope that it can lead to some fruitful discussion. Every event and quotation cited in this posting is taken from a news item in a mainstream newspaper, usually the Hindu. The extracts from depositions before the court in the course of SAR Gilani's trial are taken from the website of the All India Defence Committee for Syed Abdul Rehman Geelani, of which Rajni Kothari (a distinguished and veteran political theorist and public intellectual) is the chairman. The url for this excellent website, which I would urge everyone on this list to visit, is - www20.brinkster.com/sargeelani I am appending a brief selection of relevant links at the end of this posting and I offer apologies in advance for the length of this posting. I would like to acknowledge the invaluable research assistance given to me in the writing of this text by my colleague, Parvati Sharma. in solidarity with SAR Gilani and his family Shuddha ___________________________________________________ The Worst is Always Precise - Reflections on the Death Sentence Awarded to SAR Gilani in the special POTA court by S N Dhingra, on the 18th of December, 2002 Shuddhabrata Sengupta (with research assitance by Parvati Sharma) _____________________ "The city from which no news can come is now so visible in its curfewed night that the worst is precise. From Zero Bridge a shadow chased by searchlight is running away to find its body. On the edge of the Cantonment, where Gupkar Road ends, it shrinks almost into nothing, is nothing, by Interrogation gates, so it can slip, unseen, into the cells: Drippings from a suspended burning tyre are falling on the back of a prisoner the naked boy screaming, 'I know nothing.' from "I see Kashmir from New Delhi by Midnight" by Agha Shahid Ali ________________________ The worst is always precise. Nothing can be more precise than a sentence of death, specifically by hanging, until the brain ceases to function, the heart ceases to beat, the lungs cease to breathe, even as it carries the additional burden of a fine of Rs. 500, 000. (How can a body hanging from the gallows pay five hundred thousand rupees?). Or is this the money that a shattered widow, or a grieving father must now collect from friends and relatives to pay up to the state? Who will collect it? A district collector? Will it be delivered in cash, in a cheque, as a money order, paid up by the bereaved to the executioner? Will a receipt be issued by the hangman state? That does not matter, what matters is that the sentence has been read. The cost price of 'waging war against the state' has been calculated. We have been told that evidence has been gathered, precisely, that the due process of the law has been followed, precisely, and a precise figure of blood money has been arrived at after deliberations. Death, and five hundred thousand rupees, precisely. No more, no less. Except, that unlike Srinagar, the "city from which no news came", in the late Agha Shahid Ali's elegy to the "encountered dead", the 'precise' did not become visible in a 'curfewed night'. The sentence was read instead in New Delhi, the city, where all news is fattenned, killed, eaten and shat out, by a gaggle of news channels, papers, informers, and disinformers, and not at mignight, but at 11 am on a slightly hazy December morning, in the premises of a special court. Many of us have heard reports of its precise words, its precise tones, on the news programmes on television, all day today since 11 am If Agha Shahid Ali were alive today, perhaps he could have written another elegy, for a year long encounter killing between truth and precision that entered its final act today. Would he have called it "I see New Delhi from Kashmir by Midday"? _____________________________________ Time and space would have changed, New Delhi would have become Srinagar, the same shadow war would have found a different landscape, dates on the calendar and the hands on the clock face would have changed places. The 'worst', however, would have remained just as 'precise'. Nowadays, at midnight, when a policeman shines a torch in your face at midnight, or at midday, when a phone you are talking into becomes an informer, or when five policement in civilian clothes come into your house, seize your children and threaten to kill them, and then ask you to accompany them to a suburban farmhouse, to witness your husband, naked and being tortured, it may sometimes be difficult to distinguish between New Delhi and Kashmir. The difference, is one of degree. Of degrees of surveillance, degrees of power, degrees of violence, degrees of torture. First degree, second degree, and often, third degree. We have become the inhabitants of a New Srinagar, every bridge in New Delhi is now Zero Bridge. We are all suspects now. The encounter is at our doorstep, the hangman is biding his time inside our heads. Our shadows, chased by searchlights, are running to find their bodies. Anyone, (provided he or she had a certain kind of name, or spoke a certain language to his family on the phone, or sometimes participated in certain public meetings and protests) could have stood, precisely, where S A R Gilani, sometime lecturer in Arabic at the Zakir Husain College, stood yesterday morning. At 11: 00 am, on yesterday morning, the 18th of December, a year and four days after SAR Gilani was arrested under the Prevention of Terrorism Ordinance (later Act), for complicity in the attack on the Indian parliament on the 13th of December, 2001, S N Dhingra, judge of the Special Court pronounced his sentence on the accused. What follows is an excerpt from the front page story, reporting the verdict, in the Hindu of today, the 19th of December, 2002 http://www.hinduonnet.com/stories/2002121905170100.htm _______________________________________________ "In his 296-page judgment, Mr. Dhingra said the attack on Parliament was the handiwork of forces which wanted to "destroy the country and cripple it by killing or capturing its entire political executive, including the Prime Minister and the Home Minister...captivate entire legislature and the Vice-President, who were in Parliament.'' Commenting on issues of evidence, the judge said that the single-judge order of the Delhi High Court, declaring the telephone interception by police as inadmissible in evidence, was non-est as the "single judge is not authorised'' to hear the appeal against the order of the designated judge. Commending the investigating agencies, he said that they "perform a tough job.'' On the question of discrepancies in the police evidence and instances of evidence being tampered with, raised by defence counsel, he said it was the "usual practice nowadays to flog the investigating agencies.'' Defence counsel, Nitya Ramakrishnan, commenting on the judgment, said, "from several assumptions and conjectures in the judgment, which even prosecution did not care to assert in court, it appears that the learned designated court has added to the fund of prosecution material and the defence laments that it was not awarded the privilege of cross-examining the source.'' Sima Gulati, counsel for S. A. R. Geelani, declined to comment on the judgment as she had not fully read it. "We will appeal against this verdict. This order is not sustainable in law. There is simply not enough evidence to convict Geelani,'' she said. " _______________________________________________ We have all had the sentence read to us. Only one of us, however, is going to face the gallows, as of now, and he seems calm, perversely stoic, still insisting, as he must have in the interrogation cell, that he "knew nothing". All he said yesterday, when the special court found him guilty was, "It is a sad day for democracy in India". Coming a few days after a provincial election that crowned the organizers of pogroms as the elected representatives of the people, this sentence was just as modest, as it was precise. These are sad days. Today, after he heard the sentence, Gilani said "By convicting innocents, you cannot suppress emotion. Peace comes with justice. Without justice there will be no democracy, it is Indian democracy that is under threat.'' What kind of man is Syed Abdul Rehman Gilani ? In a note entitled "My Friend Abdul Rehman" in the website of the SAR Gilani Defence Committee, a friend of SAR Gilani, who wishes to remain un-named, writes, "A shy soft-spoken kashmiri youth met us in the Mansarovar Hostel, a post graduate hostel of the University of Delhi, in the mid nineties. On getting to know him better he came through as a deeply compassionate man with a great love for fine arts. He was passionately in love with the great secular poets of urdu such as Faiz Ahmad Faiz, Moin ud din Maqudum, Majaz etc, and spent hours discussing the finer points of their poetry and the earthy humanity of their message. Being a sensitive man he felt deeply for the sufferings of the Kashmiris; but his compassion was not bound by sectarian concerns. He was equally moved by the sufferings of the quake victims of Latur and Gujarat, and he worked with the teachers and students of Delhi University to collect relief material. To register his disagreement with religious and sectarian fanaticism and to express his solidarity with the long cherished ideals of equality and secularism he used to unfailingly participate in secular rallies. We still remember him carrying a lit candle during the peace marches organized to remember the innocent lives lost in the riots that swept the country in the aftermath of the demolition of the babri mosque. Now that person stands accused for perpetrating terrorism?. Knowing him I find it very difficult to believe the charges." The man we see in pictures on this site, with his family, with his wife, playing cricket, with his children, seems affable, shy, smiling. His life is perhaps one of modest hopes, a commitment to scholarship, and the intersection of vague unspoken fears, with a desire for justice and freedom. Since the afternoon of the 14th of December, this ordinary life, one very much like the lives of many of us in Delhi has been overturned with great care and precision. First the arrest, then the efforts to stain his reputation, stories of sinister 'Arab' acquaintainces, insinuations about phone calls from STD booths to undisclosed foreign locations, and the amassing of wealth, each of which was systematically planted by the special cell in the media, and which now stand challenged by a defamation suit, bear witness to a precise campaign to damage every aspect of Gilani's personal and professional life. (for details of which, see - Geelani issues notice to Hindustan Times, Delhi police http://www.milligazette.com/Archives/01072002/0107200281.htm) It was precise. The worst is always precise. A long trial, a vilification campaign, a sentence of Death, and a fine of Rs. 500, 000 for waging a war against the Republic of India by conspiring with five "terrorists" who had attacked the Parliament in New Delhi on Decmber 13, 2001. Gilani, and his two co accused Mohammad Afzal and Shaukat Guru were awarded the death sentence for offences under Section 3(2) of POTA (indulging in terrorist acts leading to deaths) and Section 302 of the Indian Penal Code (murder). Afsan Guru, wife of Shaukat, also known as Navjot Sandhu who was convicted under Section 123 of the Indian Penal Code for concealing the plot, was sentenced to five years of rigorous imprisonment and fined Rs 10,000. The designated judge, S. N. Dhingra, pronouncing the sentence, said that he "considers that she deserves no leniency.'' Making no mention of her pregnant condition at the time of the conspiracy, the judge said that "there is no doubt that she was having a difficult choice of going against her husband'' but that "she had to give priority to the nation and society.'' Geelani, Guru and Afzal have also been sentenced to life imprisonment on seven counts. One each under IPC Sections 121-A (conspiracy to wage war against state) and Section 122 (collecting arms with the intention to wage war against state); under POTA, for abetting terrorist acts, Section 3 (3) and harbouring terrorists, Section 3 (4); and membership of a terrorist gang, Section 3 (5) and possession of unauthorised arms etc. under Section 4 (b); and under Section 3 of the Explosive Substances Act. They have also been awarded a cumulative 30 years' rigorous imprisonment, for charges under Section 4 of the Explosive Substances Act and Section 307 of IPC (attempt to murder), and fines. _______________________ Interrogations never end when the suspect says "I know nothing". Usually, that's when they begin. Then, it is just the matter of a a game played out between what the suspect knows about himself/herself, and what the interrogators know about him, or her, or what they tell the world they know. Crucially, in order to tell the world what they know, they need to have the suspect "betrayed" by his co-accused. Here, what is often set in motion is a chain of willing and unwilling "betrayals", extracted either by coercion or torture, or by snooping on what the suspects may be saying to themselves, or to others. In the case against S A R Gilani, a minor sub-plot in the greater drama of the so called conspiracy behind the attack on the parliament, what was most important for the prosecution was the capacity to establish a wider network, a de-facto conspiracy, with nodes in Kashmir, and across the border. It was this "wider conspiracy theory" that could give the spectacular nature of the attack itself a substantive context. What was this substantive context and unraveling pattern that surrounded this case ? - Among other things, one could argue that it was the need to the convert the highly unpopular, and draconican, Prevention of the Terrorism Ordinance (POTO), into the Prevention of Terrorism Act (POTA), the necessity to achieve the largest military build up since the second world war on the India Pakistan Border, and the usage of the threat of possible nuclear war against Pakistan by the Indian State as leverage against any adverse international reaction to the March massacres in Gujarat, (arguably, themselves designed to create a 'crisis' situation which would both strengthen the state and consolidate Hindu fundamentalist opinion into concerted action to rescue an at that time vulnerable BJP led dispensation). A wider 'conspiracy' was absolutely necessary to establish in order to spin doctor the above configuration of circumstances into being. The stakes related directly to "reasons of state", in other words, the stakes were far too high. Imprecision enters the most precise of plans. Well orchestrated maneuvers too suddenly betray loopholes that need to be plugged. None of the mobile phones yielded anything other than a few numbers called in Pakistan, in Dubai, and a satellite phone (purportedly belonging to a terrorist mastermind called 'Ghazi Baba'). Millions of Indian citizens could have relatives or friends in Pakistan and Dubai, and in themselves, the records of numbers called establishes nothing, not even the fact that the slain terrorists were 'Pakistanis'. The slain "terrorists" who, were said to have 'looked' like Pakistanis were identified as such, only on the basis of confessions recorded by the police from amongst the accused, specifically from Mohd. Afzal, and it is well known that confessions in police custody (generally, aided and abetted by coercion) are generally not admissible as evidence in a court of law. (This is of course not true for anything that falls under POTA, but then, that is precisely one of the juridical innovations that makes POTA the lethal instrument that it is). All that the entire case for the prosecution could stand on, and ergo, all that the Indian State could stand on to substantiate the reality of a 'wider conspiracy' was a single moblie phone interception of a conversation between S A R Gilani and his half brother, who lives in Srinagar, which took place on the 14th of December 2001. One day after the attack. It needs to be noted here, that the defence was able to prove that not even this interception was done as per the rules laid down in the already stringent Prevention of Terrorism Ordinance. The attack took place on the day of the 13th, the interception, its translation, and the arrest of the accused, had been successfully completed by the late afternoon of the 14th, without any of the procedures necessary to authorize such interception being followed. Undue haste for reasons of state might go down well with newspapers hungry for headlines, but, they are not shining examples of the rigorous attention to the due process of the law. The transcript of the charge sheet (FIR No.417/2001, Date 13/12/2001) , submitted by the ACP Special Cell, Delhi Police on 12.05.2002 makes for fascinating reading. You can find it along with other documents from the court records at http://www20.brinkster.com/sargeelani/Court Records.htm It may well be seen as a prime example of the imaginative and narrative talents that lie hidden in the ranks of the special cell of the police department. Among other things it shows how, within minutes of 'seeing the news on TV', one Harpal Singh, proprietor of "Lucky Motors" in Karol Bagh, voluntarily identified one of the slain "terrorists", as the person who had purchased the 'attack vehicle' a white ambassador car from him. This is the first piece of evidence that establishes a 'history' to the attack. The charge sheet also goes on to say that - "Three mobile phones, six SIM cards and a number of 'fake' identity cards of "Xansa Web City" - a computer training institute, were found on the bodies of the slain terrorists. ..The mobile phone number of one of the accused conspirators, Mohd. Afzal was found inscribed as the contact number on the "Xansa Web City" identity card. Mohd. Afzal's mobile phone number was seen to be (from transcripts obtained from Mobile Phone Companies) in constant contact with several mobile phone numbers, one of which, number 98100-81228 was found to have belonged to S A R Gilani. The location parameter (Cell ID) of all the mobile numbers recovered from the deceased terrorists and that of all the other mobile numbers (including 98100-81228 ) was found to be that of Mukherjee Nagar for most of the time. Out of all the prominent numbers only one mobile number 98100-81228 was found to be a regular mobile card of AIRTEL, which stood in the name of Sayed Abdul Rehman Geelani r/o H No. 535. Mukherjee Nagar, Delhi. The subscriber was also found to have made the payments to the Mobile Company through his SBI (State Bank of India) card, which also had the same address as revealed from the report received from the SBI. On 14.12.2001 an incoming call from Srinagar was intercepted on mobile No.98100-81228 and during the conversation the user of this mobile (the accused S.A.R. Geelani) spoke in the Kashmiri language." The translation of this conversation was the sole piece of so called 'incontrovertible' evidence that the prosecution could produce in court. The rest was built on custodial confessions, a roster of numbers, that in themselves proved nothing, and hearsay. The entire case against SAR Gilani, and by implication, substantive sections of the 'wider conspiracy' theory which was used by the Indian state to justify its subsequent actions, (including the threat of Nuclear war) rested on the fragile substance of this supposed piece of evidence. It is to this piece of 'evidence' that we now turn. The police's case rests on its version of this telephone conversation. The police version of the Hindi translation of this (unauthorized) interception, inscribed by Sub Inspector Harinder, from the verbatim translation from Kashmiri done by one Rashid, son of Mohd. Ramzan, a 34 year old transport worker, who has studied up to the 5th/6th grade who cannot write Hindi, and who had not signed the translation, contains the following crucial sentences. Gilani's brother asks him, (according to the police Hindi version) "YEH DILLI MEH KAYA KIYA HAI" ("What has happenned in Delhi") to which Gilani responds, laughing, with "YEH JAROORI HOTA HAI" ("These things/This Thing is Necessary")which in Kashmiri is said as "E CHE ZAROORI" After this, the police version goes on to say that Gilani's brother instructs him "ABHI AAP CHUP KARKE BATHO". ("Now you sit quietly") This exchange, especially the bit about "What has happenned in Delhi?", and, "These things/This Thing is Necessary" - are sought to be established as proof of Gilani's complicity in the conspiracy to attack the Parliament in Delhi. Flimsy as this is, in and of itself. The prosecution's case was further weakened by the fact that the so called 'translation' was in itself a rather vague and inaccurate rendition of the actual contents of the conversation. S A R Gilanis' defence lawyears, in the course of the proceedings, produced two independent witnesses, both native Kashmiri speakers, who deposed, giving markedly different and accurate translations of the same conversation. These two witnesses were - Mr. Sampat Prakash, a trade union leader from Kashmir and Mr. Sanjay Kak, a documentary film maker. Both appeared on Oct. 09, 02 at the request of the SAR Gilani Defence Committee to translate the intercepted conversation. What follows is an excerpt of the relevant portions (segments 24-28 of the recording of the conversation, as given by Mr. Sampat Prakash, in Kashmiri, and then in English and Hindi) 24. Caller : Ye kyah korva? What has happened? Ye kya hua? 25. Receiver : Kya? Dilli-Ha? What, in Delhi? Kya Dilli mein? 26. Caller : Dilli, Kya korva? What has happened in Delhi?Dilli mein kya hua? 27. Receiver : Ha! Ha! Ha! (Asaan) Ha! Ha! Ha! (Laughing)Ha! Ha! Ha! (hansna) 28. Caller : Vuni bihizyava sokha saan. Relax now. Ab sakun se rahna. Let us now turn to Sanjay Kak's deposition, made in court on the 9th of October, 2002. " There were no words 'Ei Chhey Zaroori' (This was/is necessary) in the tape given to me. At S.No. 22 on page 3 of my translation and transcripting, words 'Yeh kaya Korwa' means 'Yeh Kaya hua'. (What has happenned) Q: Would this above phrase 'Yeh Keya Korwa' be used, when a younger brother inquires from his elder brother about some dispute arisen between the elder brother and his wife, about which younger brother got knowledge from some other source? KAK: It is entirely possible." Note: The above statement is as it is recorded by the court. Now., let us see what S AR Gilani said in court in his own defence. SAR Gilani was arrested on the 14th of December 2001. What follows is his statement in court about the circumstances of his arrest. ___________________________________________________ Statement of SAR Gilani to the Court under Section 313 CrPC, as recorded on 17.09.02, an Extract Q: Why this case against you? Ans: After I was picked up I was tortured by A.C.P. Rajbir Singh and other police officials in presence of D.C.P. Ashok Chand and I told them that I shall proceed against them in N.H.R.C. (National Human Rights Commission) and I also told that they have caught a wrong person and I was innocent. Then I was told by them that they were framing me in this case. So I have been falsely implicated in this case. Q: Why the witnesses deposed against you? Ans: The witnesses have deposed against me due to fear of the police. Q: Do you have anything else to say? Ans: On 14th Dec. 2001 after I was arrested as already told by me I was blind folded and taken to some place which was like farm house. At that farm house tea was ordered by the police officials and on the sugar sachles Ashoka Countryside was written. At the farm house I was made naked and tortured and I was hanged upside down. I was forced to make confessional statement but I made no confessional statement as I was not involved. Thereafter I was threatened if I made no confessional statement my family members would be eliminated. On 14th Night I was brought to special cell Lodhi Colony where I found my wife, my two children, my brother, my brother in law and one another relative at the special cell. They had already been arrested. I saw Afasan Guru also at special cell at that time. Afzal in his interview given to Media has categorically stated that I have no involvement. My conversation with my half brother on telephone was tampered. In the conversation where my brother had asked "Ya Kaya Keya" . This question he asked about family matter as I was having some programme to go to Kashmir on Id. However due to busy-ness in the college I could not make programme for going to Kashmir and due to this, dispute arose between me and my wife also, who was insisting for going to Kashmir. My wife talked to my mother and my mother then inquired, as to why we were not going to Kashmir, then my wife told my mother that she should ask her son (me). It was for this reason that my half brother felt that there was some "Garbar" and he might have asked that "Yeh Kaya Kiya". I did not say "Yeh Jaroori Hota Hai". My relationship with Shaukat and Afzal were of mere aquaintance. Note: The above extract is as it is recorded by the court." _________________________________________________________ The circumstances surrounding Gilani's arrest become clearer when we read his wife's testimony, made to the court, 1.1o.2002. What follows, is an extract Statement by Qurat-ul-am-Arifa wife of Shri S. A. R. Geelani aged about 30 yrs. r/o H. No. 568 Lane No.22 Zakir Nagar, New Delhi, House Wife. (From page2, para 2---) " On 14th Dec. 2001 my husband started from house at Mukherjee Nagar at about 1 p.m. for going to Mall Road Masjid (Mosque) for performing Jumma Namaj (Friday Prayers), and he told me that he would be coming back by 4 p.m. He was to send hearing-aid for his mother through my brother who was about to go to Kashmir and my brother was to meet him at J&K Bus Stand opposite Tis Hazari. My husband did not come back by 4 p.m. or 4.30 p.m., which was the time for opening Roza (breaking ramzan fast) and brother of my husband also did not come by 4-4.30 p.m. My husband's brother was to take my brother to J&K Bus stop, opposite Tis Hazari. When my husband did not come back by 4.30 p.m. on 14th Dec. I tried to talk to him on telephone. On dialing cell phone of my husband I was repeatedly getting message "enter your phone number". I then stop dialing the phone. I thought that my husband's bus had come late or the bus which was to go to J&K got late, I therefore opened Roza myself. At about 9.30 p.m. I and my two children were at home. 5-6 persons who were in civil dress entered my house. I started making noise. They caught hold of my two children and threatened me that I should shout up and keep silence otherwise they would kill my children. I kept mum out of fear that my children may not be killed. They told me that they were police person and they also told me that I could pack up some cloths of children and accompany them. I told them that my husband would be about to come from the college and I cannot accompany them but they told me that they know where my husband was, and told me that I would have to accompany them and they forcible took me with them and forced me and children to sit in the car. .. [discontinued at page 3, para 2, line13] [Continued from page 4, line 22] --- On 15th Dec. Police again came to my room and I was blind folded and we were made to sit in a car and removed some where else. In the lunch time when we were served food, on the food plate it was written B.S.F. (Border Security Force) Bhaswa Camp we then learnt that we were in a B.S.F. camp and I got frightened. There again my husband was tortured by the police in my presence and had been threatened my husband that in case he did not say whatever they like they would kill him and the entire family and nobody even come to know about it. My husband kept on denying his involvement in the attack. There after my husband was taken into second other room. Then police came to my room, they were 5-6 persons. Then they told me that I should advised my husband to say whatever they like and if my husband did not agree then they would keep me for through out my life in the jail, in this case. Thereafter I went to the room of my husband and weepingly told him to agree to sign whatever the police people say as it was a question of life of children and our own life. Then I was brought back to my room. On the same day I do not know at what time we were brought back to Lodhi Colony blind folded. The police had been pressuring on the night of 15th Dec. also to say whatever police likes. I and my children got frightened. I remained at police station Lodhi Colony on 16th Dec. also in the same condition throughout the day. Police was coming on that day to us repeatedly at the instance of A.C.P. Rajbir and pressuring us even on that day for making statement. On the evening of 16th Dec. 2001 again my husband was brought to my room and 15-16 papers, which were blank, were placed before him and he was asked to sign those papers. My husband refused and then he was pressurised in my presence. We were again threatened and there after my husband under, threat signed those blank papers. Thereafter police allowed me to go home along with children.... " Note: The above extract is as it is recorded by the court. _______________________________________________________________ Little needs to be said about the invesitgative procedures followed in this case - the tools were the ones that are used as a matter of course, torture, and the threat of death, or pain inflicted on loved ones. Crucially, none of these tactics worked, and S A R Gilani steadfastly refused to sign any confessional statement, implicating either himself, or any others. In a classic conundrum called the "Prisoners Dilemma" - a non-zero-sum game used in Game Theory to analyse reasons for altruism and co-operation, two hypothetical suspects are arrested on charges of conspiring to commit a crime together. However, the police lacks sufficient evidence to convict them The two prisoners are isolated from each other, and the police visit each of them and offer a deal: the one who offers evidence against the other one will be freed. If none of them accepts the offer, they are in fact cooperating against the police, and both of them will get only a small punishment because of lack of proof. They both gain. However, if one of them betrays the other one, by confessing to the police, the defector will gain more, since he is freed; the one who remained silent, on the other hand, will receive the full punishment, since he did not help the police, and there is sufficient proof. If both betray, both will be punished, but less severely than if they had refused to talk. The dilemma resides in the fact that each prisoner has a choice between only two options, but cannot make a good decision without knowing what the other one will do. Such a distribution of losses and gains seems natural for many situations, since the cooperator whose action is not returned will lose resources to the defector, without either of them being able to collect the additional gain coming from the "synergy" of their cooperation. For simplicity we might consider the Prisoner's dilemma as zero-sum insofar as there is no mutual cooperation: either each gets 0 when both defect, or when one of them cooperates, the defector gets + 10, and the cooperator - 10, in total 0. On the other hand, if both cooperate the resulting synergy creates an additional gain that makes the sum positive: each of them gets 5, in total 10. The gain for mutual cooperation (5) in the prisoner's dilemma is kept smaller than the gain for one-sided defection (10), so that there would always be a "temptation" to defect. The problem with the prisoner's dilemma is that if both decision-makers were purely rational, they would never cooperate. Indeed, rational decision-making means that you make the decision which is best for you whatever the other actor chooses. Suppose the other one would defect, then it is rational to defect yourself: you won't gain anything, but if you do not defect you will be stuck with a -10 loss. Suppose the other one would cooperate, then you will gain anyway, but you will gain more if you do not cooperate, so here too the rational choice is to defect. The problem is that if both actors are rational, both will decide to defect, and none of them will gain anything. However, if both would "irrationally" decide to cooperate, both would gain 5 points. S A R Gilani decided to do the right, and irrational thing, as an answer to his 'Prisoners Dilemma'. He decided not to support the attempts to construct a 'wider conspiracy' the need for which had become so urgent. It may be noted that even his co accused in the case, Mohd. Afzal, who had furnished the most crucial confessional statement, in a video recorded interview given to Aaj Tak, and NDTV at the special police cell in Lodhi Road, explicitly stated that SAR Gilani was not involved. He too, decided to seek an irrational, and morally upright solution to his 'Prisoners Dilemma' Subsequent to this, ACP (Special Cell) Rajbir, who was present at the time of the recording of the interview explicitly told the news crews present to edit this statement our of their reports. The TV channels complied with this directive, but, in a re-broadcast of portions of the interview in a special programme to commemorate 100 days after the attack, Aaj Tak Channel did carry the statement that had been sought to be edited out. The Hindu of October 11 carried a story titled `Press, police suppressed information in Dec. 13 case' , which bears quoting at length "The press and the police `connived' to suppress information that could have given the investigation into the December 13 attack on Parliament a different complexion, a special court was told today. An interview of the main accused, Mohammed Afzal, by the Hindi news channel Aaj Tak was edited "at the request of the ACP, Rajbir Singh,'' to exclude the section in which Mr. Afzal stated that another of the accused, S.A.R. Geelani, had nothing to do with the attack and had no knowledge of it. In the written confessional statement to the police, which Mr. Afzal denies making, he is supposed to have said that Mr. Geelani, a University of Delhi lecturer, was present at the meeting where the attack was planned. The video-taped interview was played in the court today and showed Mr. Afzal categorically stating that Mr. Geelani was "a professor ... I have never shared any of this information with him.'' He said in the interview that on one occasion, Mr. Geelani had said to him "you are up to something.'' "To stop him from asking questions, I told him that there were two Pakistanis staying with me who were trying to go to the UAE.'' The Aaj Tak correspondent, Shams Tahir Khan, giving evidence in court said that the ACP, who was present during the interview, had shouted at Mr. Afzal, saying he had instructed him not to say anything about Mr. Geelani. He also confirmed that other journalists, from NDTV/StarNews and Zee News, were present at the time. Mr. Khan then added: "Mr. Rajbir had requested that I should remove the lines stated by Mr. Afzal about Geelani ... So, when this interview was telecast on December 20 at 5 p.m. that line was removed.'' The complete version was telecast on a programme `100 days after December 13.' Mr. Khan told The Hindu that his decision to edit out Mr. Afzal's comment about Mr. Geelani was made "because we are dependent on the police for information... Mr. Rajbir Singh is a very good source in the Delhi police's Special Cell.'' He added that he had not realised what impact his decision would have." ___________________________________________________________ When the unfolding of the Prisoners Dilemma goes against the interests of the jailers, one solution is to get rid of the prisoners who do not snitch, who do not sing the songs that power wants them too. On the 17th of August, 2002, there was an attempt on the life of S AR Gilani in Tihar Prison, by one Sohan Singh, also a prisoner in Tihar Prison. While this was the only instance of an actual attack, Gilani had been receiving threats to his personal safety from other co prisoners from time to time. Complaints against this act were not acted upon immediately by the Assistant Superintendent, and the Head Warder, who were both present in the vicinity of the attack. It could well be said that it was beginning to seem as if Gilani's remaining alive was an embarrassment and a thorn in the side of some powerful interests. Sensing the weakening of the prosecution's case against them, Gilani, together with Shaukat Husain and his wife Afsan Guru went on appeal in the Delhi High court against an order by the Special Judge who had disallowed their plea that the intercepts could not be taken on record as admissible evidence as they had been recorded without following the procedures laid down under POTA. The Hindu of the 31st of October, 2002 - reported on this as follows, http://www.hinduonnet.com/thehindu/2002/10/31/stories/2002103106690100.htm "The High Court set aside the lower court order when the Special Branch of the Delhi police failed to produce a copy of the request letter, which it had sent to the competent authority under POTA seeking permission to intercept the conversations between the accused on mobiles. In the lower court as well, the Special Branch had failed to supply a copy of the request letter when counsel for Geelani asked for it. Section 45 of POTA bars admissibility of intercepts of telephonic conversations as evidence during trial unless the accused is furnished with a copy of the order of the competent authority accompanied with a copy of the application under which the interception is authorised or approved. Referring to the provisions of the Act, Justice M.A. Khan said: "Evidence which is illegally procured will not be admitted if the admissibility is prohibited by law." The Special Branch had intercepted conversations between the accused under the provisions of the Indian Telegraph Act, not in accordance with the provisions under POTA. "The prosecution cannot fall back upon the general law of evidence for the offence under POTA on the strength of evidence, admissibility of which is forbidden by Section 45 of POTA," Justice Khan said. " It is this ruling that has been treated with disdain in today's verdict given by the special judge S N Dhingra. Commenting on issues of evidence, the judge said that the single-judge order of the Delhi High Court, delivered by Justice M A Khan, declaring the telephone interception by police as inadmissible in evidence, was non-est as the "single judge is not authorised'' to hear the appeal against the order of the designated judge. Commending the investigating agencies, he said that they "perform a tough job.'' On the question of discrepancies in the police evidence and instances of evidence being tampered with, raised by defence counsel, he said it was the "usual practice nowadays to flog the investigating agencies.'' It may be remembered, that shortly after the October 31 ruling that declared the special cells methods to be inadmissible, the people of Delhi were made witness, on Diwali eve, to a spectacular encounter killing of two alleged 'armed terrorists' at the Ansal Plaza shopping complex by the same special cell that had been so active in the December 13 case. The media lapped up the special cell's version of the story, until, an eyewitness, Dr. Hari Krishna, came forward with a testimony to the effect that he had seen two unarmed men who seemed either sedated, or badly beaten, being taken out of a car in the underground parking lot of Ansal Plaza and being shot in cold blood. The National Human Rights Commission has called for a thorough investigation, and the special cell of the Delhi Police has denied all reports that the "encounter" was in fact staged. But, the one thing that this "encounter" did achieve was a significant improvement in the public image of the special cell, which had taken such a battering in the course of the Gilani trial. Suddenly, the very police officers who were being reprimanded in the high court for producing inadmissible evidence, were feted as being 'saviours of Delhi'. The Shiv Sena, not an organization prone to hold demonstrations in support of anyone or anybody, apart form itself, conducted noisy public demonstrations, and an active leaflet campaign in support of the officers of the special cell of the Delhi police. And the management of the Ansals group, against whom proceedings for criminal negligence that resulted in the tragic deaths of many hundreds of people some years ago in a New Delhi cinema, found an occasion to grace the public, the police and themselves, with a function to honor the heroes of Ansal Plaza. Incidentally, Shiv Sena activists were present in court yesterday, when the verdict in the December 13 case was read out. As information about the sentence spread, Shiv Sena members, flanked by police vehicles, burst crackers outside the court. And inside the court, as the judge got up to leave after pronouncing the sentence, lawyers from the Patiala House courts, who had filled the courtroom, shouted "kill them, they are terrorists.'' ______________________________________________ Nothing can be more precise than the meticulous keeping of records, the careful maintenance of a fragile body of manufactured evidence, the spin doctoring of stories, of events, of everything that spins out of the vortex of the cell in which the accused sits, knowing the precise rise and fall of the sentences that bind their fates. Some of the most precise biographies of condemned prisoners are those written in interrogation cells. They are written by the literary geniuses of the special cells of the police department. Their authors begin work long before the interrogations, researching the contents of diaries that are always already found on the bodies of slain "terrorists". They are helped in their research by literary minded medical professionals who write pieces of forensic creative writing called post mortem reports, by the record keepers of mobile telephone companies who provide them with numbers, transcripts and recordings. There are trained bet semi literate translators who translate telephone conversations between brothers. There are critics and literary theorists called media professionals who interpret all these to the reading and viewing public. The police school of literature is alive and flourishing, and our city is its leading centre. This is the news where all news comes from. This is the city where the news is manufactured, processed, packaged and refined. Even if your memory of what you did, whom you met, or what you wrote - in a moment of anger, in confusion, or with conviction and candour - is vague and imprecise, then it is the task of the literary apparatus of the state to make you known. The searchlight will reveal you, even to your own shadow. You may say, on a 'visible curfewed night', that you "know nothing", but those who watch and monitor you have little to gain from information that is not categorized, calibrated and classified. They, know everything. And what they don't know, they can invent. And their function is to demonstrate to you how much they know, or can make known about you. The predicament of SAR Gilani is an early warning, of what can happen to ordinary people, caught in the vortex of a sad time, when the cynicism of power, backed by the emerging shadow of the surveillance state, threatens to overwhelm the remaining shards of dignity and decency in our lives. I hope that all those who value liberty will make their disagreement known, loud and clear. Let us not be defeated by the precision of all that is the worst in our times. _____________________________________ Selected Links that are relevant to this Posting ______________________________________ Three sentenced to death in Parliament attack case By Anjali Mody http://www.hinduonnet.com/stories/2002121905170100.htm All India Defence Committee for Syed Abdul Rehman Geelani www20.brinkster.com/sargeelani 'Police misinterpreted phone conversation' http://www.hinduonnet.com/thehindu/2002/10/12/stories/2002101200711300.htm Phone intercepts not admissible evidence under POTA: HC By Nirnimesh Kumar http://www.hinduonnet.com/thehindu/2002/10/31/stories/2002103106690100.htm Rediff.com Timeline of Attack on the Parliament http://www.rediff.com/news/pattack.htm Geelani issues notice to Hindustan Times, Delhi police http://www.milligazette.com/Archives/01072002/0107200281.htm Geelani challenges trial court order on handcuffing http://www.dailyexcelsior.com/02aug06/national.htm#6 Remember December 13? (A Profile of the lawyears defending Geelani) Sankarshan Thakur http://www.indianexpress.com/archive_full_story.php?content_id=7818 [india-gii] NEWS: Parliament attackers want phone talks discounted as evidence [india-gii] NEWS: Parliament attackers want phone talks discounted as evidence https://ssl.cpsr.org/pipermail/india-gii/2002-July/001694.html Committee for Fair Trial of the POTA Accused gautam navlakha/ kumar sanjay singh/ tripta wahi/ vijay singh http://india.indymedia.org/front.php3?article_id=1955&group=webcast 200 University Teachers Seek Fair Trial for Kashmiri Professor http://islamonline.net/English/news/2002-09/24/article36.shtml Human rights body seeks fair trail for Professor Geelani http://bangladesh-web.com/news/aug/31/i31082002.htm The Prisoners Dilemma http://pespmc1.vub.ac.be/PRISDIL.html For a complete text of the poem - "I See Kashmir from New Delhi at Midnight" by Agha Shahid Ali, see - http://www.muhajabah.com/poems/000077.htm From jeebesh at sarai.net Thu Dec 19 08:28:00 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 19 Dec 2002 08:28:00 +0530 Subject: [Commons-Law] Creative Commons Unveils Machine-Readable Copyright Licenses Message-ID: <20021219170535.6458D556F@mail.sarai.kit> /* BEGIN COPIED CONTENT +++ from creativecommons.org: Creative Commons Unveils Machine-Readable Copyright Licenses Monday, December 16, 2002 San Francisco, CA - Creative Commons, a nonprofit dedicated to promoting the creative reuse of intellectual works, launched its first product today: its machine-readable copyright licenses, available free of charge from creativecommons.org. The licenses allow copyright holders to easily inform others that their works are free for copying and other uses under specific conditions. These self-help tools offer new ways to distribute creative works on generous terms - from copyright to the public domain - and are available free of charge. "People want to bridge the public domain with the realm of private copyrights," said Stanford Law Professor and Creative Commons Chairman Lawrence Lessig. "Our licenses build upon their creativity, taking the power of digital rights description to a new level. They deliver on our vision of promoting the innovative reuse of all types of intellectual works, unlocking the potential of sharing and transforming others' work." Creative Commons licenses help people express a preference for sharing their work - on their own terms. Copyright holders who decide to waive some of their rights but retain others can choose a license that declares "Some Rights Reserved" by expressing whether they require attribution or allow commercial usage or modifications to their work. Additionally copyright holders may select to waive all their rights and declare "No Rights Reserved" by dedicating their work to the public domain. After the copyright holder chooses their license or public domain dedication, it is expressed in three formats to easily notify others of the license terms: 1. Commons Deed. A simple, plain-language summary of the license, with corresponding icons. 2. Legal Code. The fine print needed to fine-tune your copyrights. 3. Digital Code. A machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use. "Our model was inspired in large part by the open-source and free software movements. The beauty of their approach is that they're based on copyright owners' consent - independent of any legislative action - and motivated out of a wonderful mixture of self-interest and community spirit," explained Creative Commons Executive Director Glenn Otis Brown. "One of the great lessons of these software movements is that the choice between self-interest and community is a false choice. If you're clever about how you leverage your rights, you can cash in on openness. Sharing, done properly, is both smart and right." Various organizations and people have pledged their support for Creative Commons, including Byrds founder Roger McGuinn, DJ Spooky, iBiblio, the Internet Archive, MIT Open Courseware project, O'Reilly & Associates, People Like Us, the Prelinger Collection/Library of Congress, Rice University's Connexions project, Stanford Law School, and Sun Microsystems. Implementers include musicians, writers, teachers, scholars, scientists, photographers, filmmakers, publishers, graphic designers, Web hobbyists, as well as listeners, readers, and viewers. Copyright holders can choose the appropriate license for their digital content at http://creativecommons.org/license/. Additional information is available through the technical fact sheet and testimonials document. Behind Creative Commons Cyberlaw and intellectual property experts James Boyle, Michael Carroll, Lawrence Lessig, and Molly Shaffer Van Houweling, MIT computer science professor Hal Abelson, lawyer-turned-documentary filmmaker-turned-cyberlaw expert Eric Saltzman, and public domain Web publisher Eric Eldred founded Creative Commons in 2001. Fellows and students at the Berkman Center for Internet & Society at Harvard Law School helped get the project off the ground. A non-profit corporation, Creative Commons is based at and receives generous support from Stanford Law School and the school's Center for Internet and Society. Learn more. END COPIED CONTENT */ ------------------------------------------------------- From jeebesh at sarai.net Thu Dec 19 13:42:48 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 19 Dec 2002 13:42:48 +0530 Subject: [Commons-Law] IPL Workshop Schedule Message-ID: <20021219222027.4FED45618@mail.sarai.kit> THE DAILY LIFE OF INTELLECTUAL PROPERTY LAW (20 - 21st December, 2002) A workshop organised by Sarai/ CSDS, Delhi and ALF, Bangalore Venue : Seminar Room, CSDS, 29 Rajpur Road, Delhi - 110054 -------------- Day One : 20th Friday, 2002 10 AM : Session 1 Introduction - Jeebesh Bagchi, Sarai/CSDS Ravi Sundaram, Sarai/CSDS, Introduction to the Public and Practices in the History of the Present (PPHP) research work within the grey economy. Prof. NS Gopalkrishnan, CUSAT, Criminalization of intellectual property law Discussion 11.30 AM : Tea 11.45 AM : Sessions 2 Lawrence Liang, ALF Emergence of IPR in daily life and language Discussant - Shamnad Basheer, Oxford 1.30 PM Lunch 2.15 PM Discussion Session Presentations - Anup and Naditha - MHRD, Govt. of India report on copyright piracy in India Neha Mahyavanshi - The vendors manual on IPR Sudhir and Lawrence - IPR cases and materials CD Comments and discussion 4.30 PM - The Code - a film by Hannu Puttonen on free software movement 6.00 PM - A terrible beauty is born - a reading/ performance by Arjun Raina (@ Sarai Interface Zone) ====================== Day Two - 21st Saturday, 2002 10 AM : Session1 A summary of day one - Sudhir Krishnaswamy Ravi Vasudevan, Sarai/CSDS IPL and rethinking of cultural studies Sudhir Krishnaswamy, ALF, The constitutional dimensions of the public domain Tea break - 12 12.15 PM : Session 2 Arun Mehta, Moderator, India GII list Software Patents: An illustration of the absurdity of IPR in the Information Age Tripta Chandola, Sarai, Open Source Licensing - some comments Lunch - 1.30 PM 2.15 PM : Session 3 Jeebesh Bagchi, Sarai From ravis at sarai.net Fri Dec 20 23:05:50 2002 From: ravis at sarai.net (Ravi Sundaram) Date: Fri, 20 Dec 2002 23:05:50 +0530 Subject: [Commons-Law] Internet Monitoring Message-ID: <5.0.2.1.2.20021220230236.036ce828@mail.sarai.net> Ten years ago, this would have come out a science-fiction novel. Today its serious. You can be sure that our local cyber-cops will not be far off in pushing for legislation to make sure this happens in India Ravi Bush Administration to Propose System for Monitoring Internet By JOHN MARKOFF and JOHN SCHWARTZ New York Times The Bush administration is planning to propose requiring Internet service providers to help build a centralized system to enable broad monitoring of the Internet and, potentially, surveillance of its users. The proposal is part of a final version of a report, "The National Strategy to Secure Cyberspace," set for release early next year, according to several people who have been briefed on the report. It is a component of the effort to increase national security after the Sept. 11 attacks. The President's Critical Infrastructure Protection Board is preparing the report, and it is intended to create public and private cooperation to regulate and defend the national computer networks, not only from everyday hazards like viruses but also from terrorist attack. Ultimately the report is intended to provide an Internet strategy for the new Department of Homeland Security. Such a proposal, which would be subject to Congressional and regulatory approval, would be a technical challenge because the Internet has thousands of independent service providers, from garage operations to giant corporations like American Online, AT&T, Microsoft and Worldcom. The report does not detail specific operational requirements, locations for the centralized system or costs, people who were briefed on the document said. While the proposal is meant to gauge the overall state of the worldwide network, some officials of Internet companies who have been briefed on the proposal say they worry that such a system could be used to cross the indistinct border between broad monitoring and wiretap. Stewart Baker, a Washington lawyer who represents some of the nation's largest Internet providers, said, "Internet service providers are concerned about the privacy implications of this as well as liability," since providing access to live feeds of network activity could be interpreted as a wiretap or as the "pen register" and "trap and trace" systems used on phones without a judicial order. Mr. Baker said the issue would need to be resolved before the proposal could move forward. Tiffany Olson, the deputy chief of staff for the President's Critical Infrastructure Protection Board, said yesterday that the proposal, which includes a national network operations center, was still in flux. She said the proposed methods did not necessarily require gathering data that would allow monitoring at an individual user level. But the need for a large-scale operations center is real, Ms. Olson said, because Internet service providers and security companies and other online companies only have a view of the part of the Internet that is under their control. "We don't have anybody that is able to look at the entire picture," she said. "When something is happening, we don't know it's happening until it's too late." The government report was first released in draft form in September, and described the monitoring center, but it suggested it would likely be controlled by industry. The current draft sets the stage for the government to have a leadership role. The new proposal is labeled in the report as an "early-warning center" that the board says is required to offer early detection of Internet-based attacks as well as defense against viruses and worms. But Internet service providers argue that its data-monitoring functions could be used to track the activities of individuals using the network. An official with a major data services company who has been briefed on several aspects of the government's plans said it was hard to see how such capabilities could be provided to government without the potential for real-time monitoring, even of individuals. "Part of monitoring the Internet and doing real-time analysis is to be able to track incidents while they are occurring," the official said. The official compared the system to Carnivore, the Internet wiretap system used by the F.B.I., saying: "Am I analogizing this to Carnivore? Absolutely. But in fact, it's 10 times worse. Carnivore was working on much smaller feeds and could not scale. This is looking at the whole Internet." One former federal Internet security official cautioned against drawing conclusions from the information that is available so far about the Securing Cyberspace report's conclusions. Michael Vatis, the founding director of the National Critical Infrastructure Protection Center and now the director of the Institute for Security Technology Studies at Dartmouth, said it was common for proposals to be cast in the worst possible light before anything is actually known about the technology that will be used or the legal framework within which it will function. "You get a firestorm created before anybody knows what, concretely, is being proposed," Mr. Vatis said. A technology that is deployed without the proper legal controls "could be used to violate privacy," he said, and should be considered carefully. But at the other end of the spectrum of reaction, Mr. Vatis warned, "You end up without technology that could be very useful to combat terrorism, information warfare or some other harmful act." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20021220/37d5ef4e/attachment.html From tripta at sarai.net Wed Dec 25 17:18:28 2002 From: tripta at sarai.net (tripta) Date: Wed, 25 Dec 2002 17:18:28 +0530 Subject: [Commons-Law] idea/expression Message-ID: <200212251718.28578.tripta@sarai.net> Continuing with the confusions and conversations at the workshop. cheers tripta _____________________________________________________ http://www.theartnewspaper.com/news/article.asp?idart=6711 The right to copy in the UK: the public domain and free flow of ideas are under threat Simon Stokes, a partner at London law firm, and author on Art and Copyright issues, discusses the dilemmas of current copyright law. By Simon Stokes LONDON. The controversy surrounding Glenn Brown's Turner Prize entry "The Loves of Shepherds 2000" and the reported litigation that is to follow highlights the increasingly uneasy relationship between art and copyright law: when does inspiration amount to copyright infringement? Much art is inspired at least in part by previous works or schools. Some works are more blatant copies, justified on the grounds that they are appropriation art or for some other reason. The law will intervene when the act of appropriation amounts to copyright infringement. A well-known example is the US "String of puppies" case (Rogers v. Koons (1992)) when the "kitsch" artist and sculptor Jeff Koons was held to have infringed a photograph of a man and woman with eight puppies by making a three-dimensional sculpture copying the photograph. Koons's argument that he had simply created a parody of modern society failed to impress the judge. UK copyright law is even more favourable to artists than US law: there is no general "fair use" defence to copyright infringement in UK law; instead there are more limited "fair dealing" defences for research, private study, criticism/review and news reporting. Unlike in some continental countries, "parody" is not a defence either. In "Loves of Shepherds 2000" there is little doubt that Glenn Brown's alleged "copy" of Anthony Roberts's book jacket illustration for the Robert A. Heinlein novel Double Star appears a clear case of copyright infringement. In particular, recent developments in UK copyright law help Mr Roberts' case. What is fundamental is the extent to which copyright protects "ideas", the themes, style or technique, for example, behind a work as opposed to the actual expression of the work. This is what copyright lawyers have termed the "idea/expression dichotomy": copyright only protects the expression of ideas, not ideas themselves. Thus, a number of art critics were quoted at the time as saying that although Glenn Brown was allegedly "inspired" by the book jacket illustration, he had nevertheless used considerable skill and creativity to produce his work. Indeed Glenn Brown was quoted by The Times as saying, "I have radically altered Roberts's work in terms of scale and colour." So on this basis could there be plagiarism? There is a continuing debate in the UK about the extent to which the UK courts should recognise and develop the idea/expression dichotomy. In the US the dichotomy has express statutory recognition: "in no case does copyright extend to any idea.." (section 102 (b), Copyright Act 1976). In the UK the principle is only given limited recognition through case law. Indeed in a House of Lords decision of November last year (Designers Guild v. Russell Williams), currently the leading case on artistic copyright and which concerned fabric designs, their Lordships appeared to severely limit the application of the dichotomy. Designers Guild involved two fabric designs "inspired by" the work of Matisse. The designs were similar but in no sense identical although similar techniques had been used in each case. The plaintiffs were successful in claiming copyright infringement at trial and in the House of Lords, having previously lost in the Court of Appeal. In the House of Lords, Lord Hoffmann made clear that, in his view every element in an artistic work is in a sense the expression of an idea on the part of the artist. It was the artist's choice, for example, to paint stripes rather than polka dots, to use one colour and brush technique rather than another, etc. According to Lord Hoffmann the expression of these ideas was protected by copyright to the extent to which they form a "substantial part" of the work. So in UK copyright law appropriation art and art works which parody other works are potentially open to a copyright infringement claim, assuming the work appropriated or parodied is still in copyright. The use of another's work as inspiration can also be copyright infringement if what is copied is a "substantial part" of the original work. As the Law Lords made clear in Designers Guild, copyright serves to protect the skill and labour of the artist. In fact the Eighth Commandment "thou shalt not steal" has been pursued with "almost evangelical fervour" by the UK courts in copyright cases, according to another leading copyright judge. If the courts are more willing to enforce copyright using the rhetoric of private property and theft, and claimants more willing to assert their "rights" and take legal action, what then of the legislature? Traditionally, legislators have sought to balance the rights of copyright owners against the need for a strong "public domain" in copyright law. Indeed the development of the idea/expression dichotomy is part of setting boundaries on what is "common" and available to all for use and further development and what can effectively be privatised. A number of artists are looking to the "open source code" movement in the US to redress the balance. In open source software, developers make their code freely available for others to use and exploit provided users also agree to keep their code "open" and available for others on the terms of a written "public" copyright licence. Similarly the artists behind the "Copyleft attitude" movement (www.artlibre.org) have devised a "Free Art Licence" which is designed to ensure the user can copy, distribute and freely transform another's work of art whilst respecting the rights of the originator. The intention behind the licence is to encourage access to art works and creativity-"to promote and protect artistic practice freed from the rules of the market economy". But it unclear as yet to what extent artists are either aware of or will subscribe to this movement. Nevertheless developments such as the Digital Millennium Copyright Act in the US and the EU Digital Copyright Directive which was adopted by the EU on 9 April this year throw into question the continuation of the public domain, at least as far as the digital world is concerned. There are real fears that rights owners can use this legislation to their advantage by circumscribing copyright users' rights to fair use or fair dealing through imposing restrictive copyright licenses on users and by protecting content through encryption and other measures backed up by the full force of the law. Under the Digital Copyright Directive, Member States will also be forced to restrict any permitted fair use or fair dealing type defences they currently grant under local law to those defences listed in the Directive. How the UK and other Member States choose to implement the Directive (which they will probably need to do by the end of November 2002 or thereabouts) will be crucial to ensuring the continuation of a strong public domain. One can only hope that all those concerned about the free flow and use of information in our society-visual, written, electronic-will make their voices heard when governments come to implement this legislation in the next year or so. Simon Stokes is a partner at London law firm Tarlo Lyons; his book Art and Copyright came out last month (Hart Publishing, Oxford) -- "Unless you have access to a loudspeaker, you are now silenced. " From tripta at sarai.net Wed Dec 25 17:26:24 2002 From: tripta at sarai.net (tripta) Date: Wed, 25 Dec 2002 17:26:24 +0530 Subject: [Commons-Law] internet policing in china Message-ID: <200212251726.24076.tripta@sarai.net> which is brutally efficient! cheers tripta http://www.theweeklystandard.com/Content/Public/Articles/000/000/002/040yffaq.asp Caught in the Web A new Amnesty International report reveals that China's Internet police force is brutally efficient--and becoming more so every day. by Katherine Mangu-Ward 12/19/2002 1:45:00 AM Katherine Mangu-Ward, editorial assistant NO ONE CAN BE SURE of the exact size of China's Internet police force, but estimates hover between 30,000 and 40,000 officers. And their back-up is impressive--China has just spent $200 million on new firewall technology as well. But for those who still try to access forbidden material, China's punishment is swift and severe. Amnesty International recently released a report compiling records of 33 "prisoners of conscience who have been detained for using the Internet to circulate or download information." One of the cases Amnesty highlights is the story of Chen Shaowen, charged with "subverting state power." He was caught "browsing repeatedly reactionary web sites" as well as "sending in numerous articles of all sorts, fabricating, distorting and exaggerating relevant facts, and vilifying the Chinese Communist party and socialist system." Chen's most recent article was about a group of workers in his hometown of Lianyuan who lost their jobs and now drive three-wheeled motor-cabs for hire. In July, the city government banned the cabs, and the workers retaliated by saying they would set up a self-help association to protect their interests: "We would prefer to suffer hardship than to give up hope." This stirring tale of self-reliance and entrepreneurship would command several column inches in some decent American papers, but in China it has earned Chen a spot in the clink. Other notable cases chronicled in the Amnesty report: "--Wang Youcai, founder of the China Democracy Party (CDP), was sentenced to 11 years' imprisonment for subversion in December 1999. Two of the accusations against Wang involved sending e-mail to Chinese dissidents abroad and accepting overseas funds to buy a computer." --"Lin Hai, a computer engineer from Shanghai, was arrested in March 1998 and is considered to be the first person to have been sentenced for Internet use in China. He was accused of providing 30,000 e-mail addresses to VIP Reference, a U.S.-based online pro-democracy magazine, and charged with subversion and sentenced to two years in prison in June 1999." [...] -- "Unless you have access to a loudspeaker, you are now silenced. " From rana_dasgupta at yahoo.com Thu Dec 26 11:23:48 2002 From: rana_dasgupta at yahoo.com (Rana Dasgupta) Date: Wed, 25 Dec 2002 21:53:48 -0800 (PST) Subject: [Commons-Law] PriceWaterhouseCoopers on IP Message-ID: <20021226055348.74955.qmail@web41106.mail.yahoo.com> if you do a search on PWC website for IP you'll see it's one of the main issues being debated by major consulting firms like them. this an article they have on their site giving an overview of the subject. R http://www.pwcglobal.com/extweb/newcoweb.nsf/docid/E125F71349965D5585256C55005B33B7?OpenDocument Intellectual Property Rights Intellectual property rights are the subject of new debate. In the U.S., the Napster case demonstrated how the ease of copying and exchanging digital files vitiates copyright law. And pharmaceutical patents are under similar attack, with many claiming that exclusive patents on life-saving drugs are unethical, at best. But without protection for their ideas, how can inventors profit from their work? Foreign Affairs highlights Adam Thierer's and Wayne Crews' Copy Fights, a book about how consumers' rush to "democratise" protected material by diminishing copyright and patent law compromises the profit motive, and may even discourage new innovation. " Who Owns Ideas? The War Over Global Intellectual Property," Foreign Affairs, 81 (6): 160-166 (November/December 2002) David S. Evans (NERA Economic Consulting, Inc., Chicago, U.S.A.) Last year, in a South African courtroom, global pharmaceutical firms challenged a law that permitted the manufacture and importation of generic AIDS drugs. The companies quickly dropped this claim, however, when the defense of their patent rights became a public relations fiasco. Indeed, just prior to last year's World Trade Organization meeting in Doha, Qatar, South Africa's health minister called the high prices for lifesaving medicines a "crime against humanity." Ten thousand miles away, in San Francisco, the music industry tried to take down Napster, a service that allowed users to swap digital music files over the Internet. In this case, the courts agreed that Napster's file-sharing technology violated music copyrights. And across the Atlantic, advocates of "software libre" are introducing legislation in several European parliaments to give preferences in government procurement to software that can be freely copied and distributed. The Eurolinux Alliance argues that only free software "preserves privacy, individual liberties, and the right for every citizen to access public information." Battles such as these are erupting all over the globe. At stake are decisions about how society can best encourage the creation of ideas, when someone can stake a claim to intellectual property, and how far copyright- and patent-holders can go in preventing others from taking their property. . . . Battle Lines The meaning of these disputes and how they should be resolved is the focus of Copy Fights 1, a new book of essays on intellectual property published by the . . . Cato Institute. It is a provocative and balanced collection that examines both the current theories and the practice of intellectual property protection. Its contributors are a diverse group. They include a member of Congress, a lobbyist for the recording industry, a chief executive of a communications company, and a mix of lawyers, journalists, and academics. All of them seek to address the new questions raised about intellectual property in the digital era. . . . We have known for centuries that owning mathematical theorems and other ideas raises more puzzles than does owning horses or other tangible property. Although no culture has allowed anyone to own a theorem, many modern ones let artists assert ownership over their writing, paintings, or music for some period of time, and most industrialized countries have given inventors of a better mousetrap a monopoly for a decade or two. These conventions vary across and within countries in maddening ways. But societies have not adopted these standards thoughtlessly. The fact that the U.S. patent office gave a 20-year monopoly to the inventor of the Santa Claus detector (patent #US5523741) should not make us lose sight of the fact that there is order amid this chaos. Broad principles that advance the public interest govern the ownership of intellectual property. . . . Why Now? The current explosion in controversy over the protection of ideas has three main causes. First, brainpower drives the modern economy: there are more demands to own ideas and more demands for cheaper access to ideas. Second, technological change has made it harder to protect ideas. More people want to use technology to get access to intellectual property. The owners of this property want to stop or at least limit these attempts. Third, globalization has made it easier for intellectual property to spread to parts of the world with weaker protection of ideas. . . . What is new today is that consumers and their advocates, using technology to gain increasing access to patented content, are undermining the very premise of intellectual property protection. . . . Free for You and Me Despite such disagreements, the economic principles of intellectual property are widely accepted. Intellectual property differs from physical property in two key respects. First, you and I cannot both sit in the same seat at Boston's Symphony Hall. But you and I can both listen to Mahler's Ninth. Intellectual property is not an exhaustible resource. My consumption does not reduce your consumption. Second, making more seats to enlarge Symphony Hall costs money. Reproducing a recording of a Mahler symphony costs very little. Non-exhaustibility and cheap reproducibility create an important dilemma: how to maximize the value of intellectual property for the public. Once an idea has been created, it would seem best to make it available to everyone. It does not cost anything from society's standpoint, and many benefit. But that leaves nothing for the idea creator. To get an idea created, society may have to form a pact with the inventor. If you create that idea, society will allow you to sell it (strictly speaking, the "expression of the idea") for a profit. Advocates of free intellectual property always need to be reminded that making ideas free after the fact may kill the incentives to create ideas in the first place. The unsurprising effect of South Africa's decision to allow generic drug manufacture was that multinational pharmaceutical firms either closed their plants or withdrew investment from the country. Supporters of stronger intellectual property rights need a reminder too. They have struck a bargain with the public. You create, we reward. But rewards have strings attached. Patents, copyrights, and trademarks provide a way for creators to charge for their products. They also provide incentives for sharing ideas with the public�patents do this most clearly, since the creator has to disclose the invention to get ownership rights. . . . The problem that societies have wrestled with is deciding when an idea warrants the reward. According to one of the contributors to Copy Fights, "the Venetians identified the same basic concepts that inform current patent policy: novelty, creativity, exclusivity, and the reduction of the creative idea to actual use and an embodiment in physical form, limited duration, and an explicit recognition of incentive effects. U.S. jurisprudence is built around the same factors, adding only a number of limitations on the patentability of laws of nature, mathematical formulae, natural substances, methods of operation, and similar phenomena. . . ." How Much Is Too Much? The entertainment industry has made intellectual property protection an easy target. The original copyright law in the United States, enacted in 1790, gave the author 14 years of protection and another 14 if he or she was still living. Those numbers doubled in 1909. As Lessig has pointed out, only half jokingly, it seems that every time Mickey Mouse is about to fall into the public domain Congress gives him (and other copyrights) a new lease on life. Congress increased the renewal period to 47 years in 1976, around the time Mickey's number came up. Then, Disney wooed Congress to get the Sonny Bono Copyright Term Extension Act of 1998; copyrights now last for the inventor's lifetime, plus 70 years. This breaks the social bargain. Walt Disney created Mickey knowing that his company would profit from his creation for the 56 years that prevailed under the 1909 act. The public kept its end of the bargain. And since only ex ante incentives for investment matter, society gets nothing from giving more money for ideas already created. . . . Intellectual property faces the greatest criticism when it comes to the production and distribution of life-saving medicines. Pharmaceutical companies insist that they need patents to recoup the considerable financial investment they make in discovering drugs, getting them approved by regulators, and bringing them to market. The Tufts Center for the Study of Drug Development estimates that it costs more than $800 million to develop a new prescription drug. But in recent years public-health advocates, most notably the physicians group Medicins Sans Frontieres, have argued that stringent intellectual property protections make lifesaving medicine expensive or unavailable in the poorest countries. The inability of AIDS patients in Africa to obtain medications has put the vast international pharmaceutical industry on the defensive. . . . Copyrights and Wrongs The best response to these controversies might be to rediscover the link between strong intellectual property laws, private investment, and innovation. Although critics may point to some adverse consequences of intellectual property protection, the absence of such protection undermines the willingness of companies and individuals to invest in new ideas and products�the core purpose of protecting intellectual property for at least the last 500 years. Well-defined intellectual property rights also make it easier for inventors to enter into deals with global companies and reduce the worry that their partners will copy their work. At the same time, supporters of intellectual property laws need to recognize the problems with the current system, such as innovators who renege on their bargain with consumers by seeking to prolong patent protections. And they must also recognize the understandable backlash when an aggressive and litigious strategy to expand the coverage of patents is perceived as an effort to prevent new competitors from entering the market. As the editors of this volume point out in their introduction, "one imagines record companies would assert the right to copyright the 12-bar blues chord progression if they could get away with it." The patent system in the United States needs reform. The U.S. Patent Office lacks the resources to distinguish inventions that deserve protection from those�the silly, the obvious, and the hardly new�that do not. That problem is exacerbated by the legal system. Once granted, patents are hard to void, and juries and judges tend to favor the patent holder. Uncertainty over the scope and even existence of patents also creates expensive litigation. . . . Many countries are essentially idea importers. If all consumers keep up the bargain with innovators, everyone benefits regardless of whether they live in an idea-importing or an idea-exporting state. The bargain guarantees that innovators have an incentive to create, and their new ideas, once put on the marketplace, spread globally. This phenomenon occurs most clearly with drugs and software. Countries that are idea exporters, such as the United States, will have to persuade other nations that it is in their long-term interest to support the protection of ideas and to be part of a global bargain. Indeed, the backlash against intellectual property comes partially from poorer countries that saw U.S. demands in the 1990s for stronger patent protection as a wealth grab. . . . Yet despite all the dilemmas posed by intellectual property protection, the broad compromises developed by the Venetians have endured. It is difficult to see how society could improve on their framework for balancing private incentives with public benefits. The devil is in the details, however, of how that balance is struck. Footnote 1. Copy Fights. Edited by Adam Thierer and Wayne Crews. Washington: Cato Institute, 2002, 295 pp. $19.95. Return to Article __________________________________________________ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com From rana_dasgupta at yahoo.com Thu Dec 26 12:08:36 2002 From: rana_dasgupta at yahoo.com (Rana Dasgupta) Date: Wed, 25 Dec 2002 22:38:36 -0800 (PST) Subject: [Commons-Law] Value of IP Message-ID: <20021226063836.80889.qmail@web41106.mail.yahoo.com> Something else from PriceWaterhouseCoopers site. An article by Tony Samuel ("Head of Intellectual Property & Licensing Disputes") whose role is about "the pro-active management of intellectual assets for the purpose of enhancing shareholder value." he estimates that 70% of the market capitalisation of major companies is not on their balance sheets; ie it consists of intellectual assets. these fall into two categories: brands and intellectual property. this article is mostly about the value of brands, but there is interesting stuff also about IP. R http://www.pwcglobal.com/Extweb/service.nsf/docid/210123EF9AEBAC1885256B96003428C6 Evaluating IP Rights In Search of Brand Value in the New Economy The dynamics of the new world economy, particularly globalisation, outsourcing and e-business, are fundamentally changing the way business is conducted. In this paper, Tony Samuel of PricewaterhouseCoopers' Intellectual Asset Management Group, consider the importance of brand value to 21st Century companies. The growth in recent years in global companies (primarily through cross-border mergers and e-business) has led to an explosion in the number of goods and services, and suppliers thereof, for consumers to choose from. With this increased choice, consumers have also been provided with greater information to make informed decisions, including ease of price comparison through the internet, the introduction of the European single currency, government regulation and increased advertising spend. The result of the above is that the balance of power between producers and consumers has shifted towards the consumer. This increase in consumer power has changed the way companies compete and forced them to compete more intensely for the consumer's disposable income. In this environment, we argue that brands have become more important than ever as a means of creating competitive advantage and maintaining customer loyalty. In particular, we look at why brands should be valued and how they can be valued. How valuable is Intellectual Property? This change in the nature of competition and the dynamics of the new world economy have resulted in a change in the key value drivers for a company from tangible assets (such as plant and machinery) to intangible assets (such as brands, patents, copyright and know how). In particular, companies have taken advantage of more open trade opportunities by using the competitive advantage provided by brands and technology to access distant markets. This is reflected in the growth in the ratio of market capitalised value to book value of listed companies. In the US, this ratio has increased from 1:1 to 5:1 over the last twenty years. In the UK, the ratio is similar, with less than 30% of the capitalised value of FTSE 350 companies appearing on the balance sheet. We would argue that the remaining 70% of unallocated value resides largely in intellectual property and certainly in intellectual assets. Noticeably, the sectors with the highest ratio of market capitalisation to book value are heavily reliant on copyright (such as the media sector), patents (such as technology and pharmaceutical) and brands (such as pharmaceutical, food and drink, media and financial services). Brands clearly have significant value. Diageo, for example, has capitalised some �4.9 billion of brands and yet this is only part of its portfolio. Other businesses, such as Nike, Unilever and Coca Cola spend billions each year supporting their brands. In the UK, the growth in trademark registrations has also demonstrated the increased focus on brand importance: Year Number of trademark registrations 1998 25,169 1994 28,828 1990 28,389 1986 17,089 1982 13,134 1978 10,643 1974 10,626 We should stress that owning a trademark does not, in itself, provide ownership of value. The value in a trademark is the protection it provides to a brand that generates cash flow. Many companies spend millions of pounds protecting trademarks that are of no, or very limited, value to the company. If it is valuable, then why isn't it accounted for? We are often asked why this value does not reside on the balance sheet. Essentially, it is because balance sheets are a record of historic cost whereas value is a reflection of the market's expectation of a company's future cash flows and the risks inherent in those projected cash flows being achieved. In other words, accounting and value should not be confused. Attempts have been made to account for IP. The first attempt was in 1988 when Nestle acquired Rowntree for �5 billion, a price representing five times the recorded net assets of the target company. Such an acquisition can lead to some distinctly funny looking accounting results. As you can imagine, if a collection of assets is acquired for, say, �500 million and the recorded assets are only �100 million then the remaining �400 million gets written off through the profit and loss account. This results in a balance sheet substantially less healthy than prior to the acquisition. Also in 1988, RHM (formerly Rank Hovis McDougall) became the first UK company to record their brands (both acquired and internally generated) on the Balance Sheet. Other companies followed the lead of RHM. The accounting standards have however, subsequently changed. The current position is that internally generated intangible assets cannot be capitalised unless they have a "readily ascertainable market value". As no such market exists for brands, clearly it is not possible to capitalise such internally generated assets. On the other hand, acquired brands can be capitalised but only where it can be shown that they are separable from goodwill. Intellectual property is more often created internally than acquired, with the associated expenses (such as research and development or advertising costs) being expensed through the profit and loss account rather than being capitalised on the balance sheet. As a result, some IP that is acquired goes on the balance sheet (as there is a point in time opportunity to place a cost on it) but most does not. Many balance sheets are therefore inherently inconsistent, showing some brands but not others. Diageo, for example, capitalises acquired brands, with the result that Johnny Walker, Smirnoff, and Burger King appear on the balance sheet whilst Guinness does not. Interestingly, Diageo's net assets at 30 June 1999 totalled �4.6 billion. Some �4.9 billion of this figure related to the capitalised value of brands. Therefore, had Diageo not capitalised brands and goodwill, (i.e. had it adopted Allied Domecq's accounting policy) it would have had net liabilities at 30 June 1999 of �0.3 billion, despite a market capitali sation at that date of over �20 billion. This example demonstrates that there is considerable value in brands regardless of how they are accounted for in financial statements. The issue is not whether brands are accounted for but whether and how they are actively managed to enhance the company's value. The problem that arises from not accounting for brands is that it removes a key metric by which brand management might be measured. Some companies now make an effort to report on the importance of their IP, if not its value. This recognition of value in IP is, not surprisingly, led by organisations with leading brands. Indeed, it is difficult to identify leading companies that do not have strong brands. One reason for this is that companies compete either through price or product differentiation, with the latter being preferable as it helps to maintain profit margins. However, in the new global economy there are an increasing number of suppliers of similar products, making product differentiation very difficult. Accordingly, companies often try to differentiate their products not through physical characteristics or product specifications but through emotive characteristics contained and developed in their brands. The key strength of brands is in their ability to maintain customer loyalty. Accordingly, companies selling branded products have a more stable level of sales than non-branded companies. This certainty of future cash flows is of great benefit to companies and would be reflected in a higher valuation than an equivalent company with greater uncertainty over future cash flows. Do Brands have value on the internet? The focus on brand development is not limited solely to traditional companies but is also key for internet companies and companies investing in e-businesses. For example, QXL the UK online auction house recently floated 25% of its shares raising approximately �55 million. Of the money raised over 50% has been allocated for advertising to build the brand name. Lastminute.com, on the other hand, was recently voted (by Management Today and Bain Consultancy) the best UK internet start up in the 1999 e25 ranking, despite being launched in October 1998 with only $600,000 of capital. The company aims to meet all last minute requirements of consumers through the internet, with the primary focus on marketing unsold flights and hotel rooms. Other services include gifts for next day delivery and entertaining tickets such as concerts. There was very little marketing spend, in part because the idea was so good and they were the first entrant into this market. Word of mouth initially proved to be sufficient. Lastminute.com now has a subscriber base of approximately 500,000 users and is due to float in 2000 for anywhere between �100 and �500 million. However, internet companies face intense competition, as there are few barriers to entry. Owing to the success of Lastminute.com, new companies have quickly entered the market, and have the ability to offer exactly the same products and services. New entrants include Laterooms.com offering hotel deals, lastminutegifts.com, numerous last minute travel companies and Lastorders.com, an online off-license. The fierce competition has led to lastminute.com launching its first branding campaign and one to one marketing programme. A good idea on the internet can be imitated almost immediately. If a consumer has 100 internet book stores to choose from, what will make it use any particular store? Clearly, internet companies have to establish brands very quickly in order to develop and maintain their subscriber base. This is supported by data on UK advertising spend which shows that advertising by .com companies in 1999 is forecast to exceed �100 million compared to �35 million in 1998. In the US the growth in advertising for .com companies is even more dramatic, a trend which is likely to be followed in the UK. It remains to be seen whether these large investments in internet branding will yield long term results. Everybody has heard of Amazon.com but it hasn't yet made a profit. Some questions remain: Will Amazon.com benefit in the long term from the subscriber base it is building in the short term? Will its customers remain loyal or will they move to lower price options later? Why value brands? We find it surprising that, despite brands being so critical in the New Economy, few companies use metrics of any sort to monitor the growth or otherwise in their brand values, their return on brand investment or brand contribution to shareholder value. Certainly such measures are rarely reported publicly. For companies whose primary assets are their brands, surely such measures would be worth considering when making investment and other management decisions. The importance to a business of its brands and underlying trademarks is unquestionable. Once it is accepted that brands do have value then there is a need to understand and protect that value. We have set out below the more common circumstances in which brands either are or should be valued. Management The regular valuation of brands would allow a company to monitor the effect thereon of its strategy. Has the implementation of management strategy resulted in brand value creation or brand value destruction? Would more value be achieved with a different strategy? Should investment dollars be diverted to other brands? A policy may well increase sales and even profits in the short term but may reduce the value of the brands and ultimately the company in the longer term. For example a company may adopt a short-term price reduction policy to increase short-term sales and profits. However, reducing prices may cheapen the product in the eyes of the consumer, thereby reducing the value of the brand by more than the short-term increase in sales (as it may limit the company's ability to raise prices at a later date). Porsche was a victim of this when they released the Porsche 924 at the cheaper end of the sports car market. Although the car sold well it ultimately affected sales of the more expensive cars, which was the bulk of its business, as it diminished the value of the Porsche brand in the eyes of the consumer. Porsche later halted production of the 924. Had Porsche analysed the effect of its decision on the value of the Porsche brand, it may not have elected to produce the 924 at all. The monitoring of brand value is also a useful tool in determining the success or failure of advertising campaigns and the efficiency of marketing spend. Marketing spend which does not increase the value of the brand may be misdirected. It was recently reported, for example, that Proctor and Gamble have changed the way they pay for advertising fees. Previously they paid a fixed fee for an advertising campaign. In future, they will pay the advertisers a fee, in part determined by the level of additional sales derived from the campaign. Ultimately, perhaps, the fees might be linked to measures of customer loyalty or brand value. Strategic management is ultimately focused on creating shareholder value. For many consumer goods companies, the value of their brands significantly exceeds the value of their plant and machinery. For these companies to maximise shareholder value it is essential to maximise the value of their brands. Transactions Brands are often valued in connection with proposed or completed transactions. Although the price will ultimately be a matter for negotiation, each party to the transaction will be better placed to negotiate if they have valued the brand(s) in advance. This theory applies equally well regardless of whether the transaction is a sale, joint venture or strategic alliance. To take a topical example, Unilever has recently and publicly announced a review of its 1,600 brands. They have decided to focus on only 400 of these brands, with the remaining 1,200 being either wound down or sold. We do not know how Unilever will decide which 400 to focus on. However, we would argue that the valuation of these brands would help determine: (1) which brands should be sold; (2) which brands should be licensed out; (3) which brands might maximise value by way of joint venture; and (4) which brands should be wound down or abandoned. Reporting As noted above, current accounting standards and practice do not require intellectual property to be accounted for on a balance sheet, indeed they make it difficult to do so. Nevertheless, once brands have been capitalised, it is necessary to ensure that their value does not fall below the value shown in the balance sheet. This necessarily requires a valuation to be performed. Reporting is not only a reference to financial statements. Management that do not report to shareholders may nevertheless want regular valuations done to enable them to assess over time whether the value of a brand has been enhanced or whether it has greater value if used differently. Litigation IP damages arising from litigation is all about IP value. Although IP damages typically manifests itself in a claim for lost profit, that profit is underpinned at the very least by a reasonable royalty rate. That royalty rate, in turn, represents the amount a willing third party licensee would pay to use the IP. As our brief commentary on valuation methodologies below shows, the royalty approach is a common form of IP valuation. In addition, there are disputes which actually require the IP to be valued. Taxation and transfer pricing The ownership, and methods of charging for the use of IP are key factors in the location of a multi-national group's profits. Identifying the optimum framework for ownership, licensing and use of IP across a world-wide business can save a multinational group millions of pounds in tax. It is important when considering such arrangements to understand, inter alia, the value of the IP. Can brands be valued? For an asset to be valued, it needs three key properties: (1) it needs to be separable from the other assets of the business - i.e. can be sold without selling a business of the entity. Whether brands are separable from the underlying business is often debated and needs to be considered in each case. This is a bigger problem for corporate brands than product brands; (2) it needs to have legal title which can be transferred - enter the trademarks; and (3) it needs to be able to generate cashflows in its own right. This manifests itself in the practical problem of separating the cash flows attributable to the brand from cash flows attributable to other factors. All methodologies attempt to identify that part of earnings or price which can be attributed purely to the brand. However, it is often very difficult to separate the value of the brand from other intangible assets, particularly goodwill. Accordingly, care must be taken to separate out goodwill from any brand valuation to avoid over valuing a brand. Brand valuation methodologies Having established that brands are valuable and should be valued the question arises as to how to value them. This area is complex and, like business and property valuations, subjective. However, certain robust methodologies have been developed, some of which are summarised below. Due to the judgmental elements, we recommend the use of more than one methodology in each case, with the results cross-checked to ensure a reasonable result. We also recommend consistency of use over time so as to reduce the comparative effect of judgement wherever possible. The basic premise underlying the value of any asset is that its current value equals the future economic benefits derived from its use, at today's prices. If an asset has no future economic benefit then it has no value. The difficulty is in (1) forecasting future cash flows (2) estimating what proportion of those future cash flows can be attributed to the brand, and (3) determining an appropriate discount rate to put those cash flows in present day terms. The following methods attempt to answer these questions. Premium profits The underlying principle supporting the premium profits method is that a value can be determined by capitalising the additional profits generated by the intangible asset. This approach is often used for brands on the theory that a branded product can be sold for more than an unbranded product. For instance Coca Cola may be able to charge 50p for a Coke whereas an unbranded cola may only sell for 35p per can. The price difference of 15p can be described as the value of the brand, per can. To value the brand it would be necessary to forecast the number of annual sales of the branded product and multiply this by the price premium (i.e. the 15p). The sum of the discounted annual price premium would be the estimated value of the brand. It may be that the branded product can not sell at a higher price than the non-branded product but instead can sell greater volume. The same valuation technique still applies. The future economic benefits will thus be the profits attributable to the additional volume generated by the brand. In many cases, branded products will be able to charge a price premium as well as sell greater volumes than the non-branded competitors. There are problems with the premium pricing method. Firstly, it is difficult to find a non-branded competitor to compare prices with. Secondly, prices charged for each product will vary between regions, and will change throughout the year, given promotions etc. In addition it is very difficult and subjective to establish how much of the pricing differential can be attributed to the brand and how much relates to other factors. The relief from royalty method This method is based upon the amount a hypothetical third party would pay for use of a trademark, alternatively the amount the owner is relieved from paying by virtue of being the owner rather than the licensee. The estimate of how much a hypothetical third party would pay to be able to use, for example, the name Gucci on their products, provides an estimate of the value of the brand name Gucci. This estimate is based on either actual license agreements, comparable market data or financial analysis. For example, Gucci may actually be charging licensees a royalty for use of the name; if they are not, then names comparable to Gucci may be used to derive benchmarks for reasonable royalty rates. For valuation purposes, the royalty rate is usually expressed as a percentage of sales. Once a royalty rate has been estimated it is necessary to estimate the life of the brand and the level of annual sales. By multiplying the level of annual sales by the royalty rate and summing all years gives you an estimate of the future economic benefit of the brand. The final step is to bring these projected future cash flows back to today's prices by discounting for the time value of money and the risks associated with achieving those cash fows. This is the most simplistic and, in our experience, most commonly used method for valuing intellectual property. One difficulty with it is the lack of actual, comparable agreements on which to base the hypothetical royalty rate. We seek to resolve this problem either by reference to our own confidential database of royalty rates or by analysing the profitability of the products in question in order to estimate the royalty that a hypothetical third party would be prepared to pay in order to generate those profits. Earnings basis This method focuses on the maintainable profitability attributable to the intangible asset. The profitability of the product that can be attributed to all other factors, such as tangible assets and working capital, is deducted from the total forecast profitability. The profit remaining, by matter of deduction, can then be attributed to intangible assets. For example, if Gucci had expected future profitability of �100 million and the profit attributed to other factors was estimated at �80 million, then the profit attributed to intangible assets is �20 million. This would then be divided between the company's various intangible assets. To calculate the value of the brand a multiple is applied to the portion of the �20 million profit attributed to the brand. Therefore if a multiple of 10 was considered appropriate and, for simplicity, the profit attributed to the brand is the full �20 million, then the value of the brand would be �200 million (20 x 10). The multiple could be determined by the companies P/E ratios, comparable rates used for other companies, or calculated from scratch, possibly based on factors relating to the strength of the brand. One shortcoming of this approach is that it is difficult to objectively attribute a profit element to all of the other factors, such as tangible assets. Secondly, the profit attributed to the brand will depend on how certain costs are allocated. Thirdly, the calculation of a multiple is highly subjective. Marketing transaction comparatives As companies restructure to successfully compete in the New Economy there are an increasing number of brand sales in certain industries. These brand disposals can be used as a bench mark by which to value the brands of other products in the same industry. For example, in 1998 Diageo sold its Bombay Gin and Dewar's Scotch whisky to Bacardi for US$1.9 billion. By analysing the acquisition price as a multiple of current or forecast sales it would be possible to estimate the value of another brand in the same sector. Summary Brands have never been as important or as valuable as they are at present, owing to the dynamics of the new world economy and the increased power of the consumer. Their importance was summarised by Sir Allen Sheppard (then the Chairman of Grand Metropolitan plc). "Brands are the core of our business. We could, if we so wished, subcontract all of the production, distribution, sales and service functions and, provided that we retained ownership of our brands, we would continue to be successful and profitable. It is our brands that provide the profits of today and guarantee the profits of the future." In this paper, we have sought to demonstrate that brands are not only valuable but integral to the management of a business - they are not just a bolt on extra. As such, brands should be managed as the key business asset that they are; not only at the protection and enforcement level, but also in terms of building shareholder value. This level of management requires the development of appropriate metrics for measuring brand management performance, of which we would argue valuation is a key management tool. Although brands are key to the success of many companies, they do not guarantee earnings stability. All aspects of the brand mix will need to be actively managed to ensure that the brand remains continually relevant and desirable to consumers. It is mainly because of this need to actively manage all aspects of the brand that regular valuations are essential to determine whether the company strategy and tactics are maintaining, creating or destroying its value. Paper prepared by Tony Samuel in connection with a talk to the Institute of Trademark Attorneys in London on 18 January 2000 and Bristol on 25 January 2000. __________________________________________________ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com From lawrenceliang at vsnl.net Thu Dec 26 20:32:47 2002 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Thu, 26 Dec 2002 20:32:47 +0530 (IST) Subject: [Commons-Law] Vaastu TM Message-ID: <20021226150247.D2E2C114937@webmail.vsnl.com> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20021226/e7fe9d22/attachment.pl From sudhir75 at hotmail.com Fri Dec 27 10:37:56 2002 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Fri, 27 Dec 2002 10:37:56 +0530 Subject: [Commons-Law] Indian Govt policy Message-ID: Sometime last week there was a high level government meeting to consider the relative merits of Open Source software. Below is a newsreport about that meeting. Those in Delhi should get involved at this level too. Proprietary, open source can co-exist, says IT secy SUDHA NAGARAJ TIMES NEWS NETWORK[ THURSDAY, DECEMBER 26, 2002 04:27:50 AM ] NEW DELHI: The Department of IT on Wednesday made it clear that there was a place for both proprietary and open source software in its larger scheme to provide the country with a robust IT infrastructure. Amidst persistent reports that the government is pushing for open source software in the form of a Linux India initiative that includes a policy shift, IT secretary Rajeeva Ratna Shah, on Wednesday clarified that the IT Department has never been vendor-specific, product-specific or genre-specific in its approach. "The final decision will rest with the consumer and it is market and competitive forces that will decide which gets priority," he said. According to him, the government is interested in keeping abreast of global trends in technology usage and he had therefore called a meeting of industry to study the potential for open source software. While there was no specific agenda finalised, the interaction revealed that open source software may prove to be more cost-effective in research and development initiatives aimed at bridging the digital divide, he told ET. Since affordability is a criterion in this country, if internet penetration is increased, it would be possible for poor consumers who cannot afford costly applications to download them from the Net - and this was mainly built on open source software, he explained. "It would be wrong to say the government is excluding a particular proprietary system to boost another open source system. But it is true that we would be relying on both and in the process may help open source acquire the strength it lacks today." All other on-going projects for e-governance with Microsoft would continue as before he clarified. He also said that policy decisions were not taken based on meetings with the industry where each party forwards its own cause. Some years earlier there had been a controversy over the government mentioning brand names in a tender for computer hardware, and the matter was resolved after it was decided that the government should never mention names and take sides. As for Microsoft opening up its source code for government use, he had earlier told this correspondent that the government had not been informed of any such offer, but was aware that the company had done it in some other countries. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20021227/0a79f1f6/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 43 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20021227/0a79f1f6/attachment.gif -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/octet-stream Size: 17056 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20021227/0a79f1f6/attachment.obj From mike at openconcept.ca Sat Dec 28 04:10:54 2002 From: mike at openconcept.ca (Mike Gifford) Date: 27 Dec 2002 17:40:54 -0500 Subject: [Commons-Law] Call for essays: open source politics and cultural Message-ID: <1041028853.1353.159.camel@office.openconcept.ca> Saw this & thought that some folks on this list might be interested.. Mike ---------- From: jason steven murphy Date: Mon, 23 Dec 2002 00:22:59 -0500 To: iEAR Community List Subject: Fwd: Call for essays: open source politics and cultural practices mediumi 1.4 open source (please distribute) call for proposals: open source politics and cultural practices mediumi the Finnish web journal for media culture publishes its fifth theme number mediumi 1.4 open source in English. This call is for submissions articles, essays, reviews that address the economical or legal logic and various cultural/social politics regarding open source software. We are particularly interested in approaches that view software from the user or user group point of view, situating the software in its cultural and social context. Open source software is often technically exclusive in its development and description. In which ways could open source become more accessible by non-programmers or non-sysadmins? What kinds of research projects, archives or meta-archives address the user end of open source? In many ways open source economy is far from optimal, since without complimentary strategies it does not provide resources to renew, research and develop further. What kind of models can be created to maintain networked development, free non-commercial distribution yet generate sustainable economies? How to protect open source and open knowledge from becoming approprietarized (sic!), while enabling also commercial non-exclusive use? While an increasing amount of technical knowledge is not publicly available, creating accessible software, related knowledge archives, and learning environments has become an acute political issue. What kind of policies or civil action is necessary to guarantee this? What kind of artistic or cultural interventions are taking place that address open source as not only a tool or a movement, but as a terrain for creative work? submissions We invite submissions in the following categories: Article/essay 3000-4500 words Interview/dialogue 2000-3000 words Review of project, event, book 1500-2500 words mediumi is a forum for researchers and practitioners of new media culture. However we also wish to have the articles accessible for wider audiences interested in new media. Please keep this in mind when submitting eg. by explaining the more advanced technical or theoretical concepts! December 27th, 2002 - 100-150 word abstracts sent to mediumi 1.4, guest editor, Tapio Mäkelä, tapio.makela at m-cult.org January 20th, 2003 - Final deadline for full texts. The journal will be launched in February 2003. mediumi is published by m-cult, centre for new media culture in Helsinki, Finland. mediumi forms a part of m-cult.net, information and communication server for the Nordic new media cultural scene. (English version launched in 1/03). http://www.m-cult.net/mediumi/ mediumi at m-cult.net Tapio Makela tapio at translocal.net mobile tel. +358-40-7223949 fax +358-40-7821771 Researcher, Department of Media Studies, University of Turku, Finland Board member, m-cult, Finnish Association for Media Culture, http://www.m-cult.org -- Mike Gifford OpenConcept Consulting http://www.openconcept.ca From jeebesh at sarai.net Sun Dec 29 06:21:11 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sun, 29 Dec 2002 06:21:11 +0530 Subject: [Commons-Law] [Fwd: [Indic-computing-users] ET... on official India mulling over GNU/Linux] Message-ID: <200212290621.11906.jeebesh@sarai.net> http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?artid=32 354337 Govt move on to let in Linux > PRASENJIT BHATTACHARYA > [spacer.gif] > TIMES NEWS NETWORK [spacer.gif] [ WEDNESDAY, DECEMBER 25, 2002 > 12:54:49 PM ] > > NEW DELHI: The government of India has started taking precise, > wide-reaching steps to usher in a Linux wave in India. > > And that cannot be good news for proprietary software vendors like > Microsoft. Yesterday, the IT ministry had a meeting of around 70 > people, from companies like HP, IBM, Sun and TCS, government agencies > like BARC and CDAC, state governments like Kerala, West Bengal and MP > to evolve a level playing field for Linux vis-a-vis proprietary > software (read Microsoft). > > All the IITs too were represented at the meeting that went on for 4 > hours. > > There was consensus in the meeting that Linux was a secure, robust and > cost-effective system. > > As far as concrete pro-Linux acts go, government tenders may soon stop > specifying Microsoft or any other vendorâs name while floating > software tenders, thus throwing open the way for Linux vendors to grab > lucrative government contracts hitherto barred from them. > > The government is also setting up special interest groups with > officials of industry and academia to find out how Linux can be > deployed in e-governance, defence, education and so on. > > Since support to Linux is till a big issue, the government is also > thinking in terms of setting up support and resource services, and > call centres for Linux users. It is also looking at setting up pilot > sites, where Linux applications can be âtouched and feltâ. A > heartening fact for Linux-philes would be the enthusiasm for Linux > shown by extremely security-sensitive agencies like Bhabha Atomic > Research Centre and the National Information Centre (NIC). > > Another aspect that came out in the meeting was the work on > Indianisation of Linux thatâs happening now. > > C-DACâs agency NCST and Red Hat have, for instance, developed a Hindi > version of Linux, called Indix. IIT Mumbai too is doing pioneering > research in Linux. > > Yesterdayâs meeting of industry, academia and government > representatives was chaired by IT secretary R R Shah. According to > industry sources, companies like Sun and TCS were all enthusiasm for > Linux, with the TCS representative claiming that the company was > implementing the countryâs largest Linux project in Chennai. The > government, however, was at pains to bring out the fact that it was > not against Microsoft or proprietary software and was only looking to > leverage the strengths of open source software. > > However, one official present at the meeting wisecracked, âMicrosoft > would have had a heart attack if it was present at the meeting. The > interest in Linux at this meeting was palpable.â > > One influential official told ET that many people were âviolently > againstâ computer textbooks in schools and colleges teaching > Microsoft Word or Excel, instead of generic applications or > technologies, like word processors. Industry sources also said that on > the sidelines of the meeting, there were two views among those present > about Microsoftâs reported move of sharing source code with the > government. While some thought it was just âposturingâ by MS, others > felt that it was a âgenuineâ attempt by the Redmond giant to reach > out. > > However, sources said that it was the representative from Madhya > Pradesh, who made a forceful case for Linux. He said that since MP had > a paucity of resources, Linux seemed the best solution for the state. > He, however, said that there was need to train people in Linux > technologies. A member of the Linux user group sprang up to say that > the MP government can take help of the extremely active Linux User > group in Indore. > > >------------------------------------------------------- >This sf.net email is sponsored by:ThinkGeek >Welcome to geek heaven. >http://thinkgeek.com/sf >_______________________________________________ >Indic-computing-users mailing list http://indic-computing.sourceforge.net/ >Indic-computing-users at lists.sourceforge.net >https://lists.sourceforge.net/lists/listinfo/indic-computing-users >[Other Indic-Computing mailing lists: -devel, -standards, -announce] >-- >Sayamindu Dasgupta [ http://www.peacefulaction.org/sayamindu/ ] > > > * GNU is Not Unix * >.... Towards World Liberation .... > http://www.gnu.org > >It's ten o'clock; do you know where your processes are? > > >-- >To unsubscribe, send mail to majordomo at ilug-cal.org with the body >"unsubscribe ilug-cal" and an empty subject line. >FAQ: http://www.ilug-cal.org/node.php?id=3 _______________________________________________ tech mailing list tech at mail.sarai.net http://mail.sarai.net/mailman/listinfo/tech ------------------------------------------------------- From rana_dasgupta at yahoo.com Sun Dec 29 17:51:24 2002 From: rana_dasgupta at yahoo.com (Rana Dasgupta) Date: Sun, 29 Dec 2002 04:21:24 -0800 (PST) Subject: [Commons-Law] www.legaltreasure.net Message-ID: <20021229122124.29052.qmail@web41107.mail.yahoo.com> am sure you know this site, but thought I would post following discussion about legal resources online. commercial service of course, advertised as follows: The largest Indian legal library on NET. This website is dedicated in memory of (Late) Shri. E.S. VENKATARAMIAH, Hon' ble Chief Justice of SUPREME COURT OF INDIA. "Legal2000 is a fine single point of reference and replaces in one stroke several volumes of space occupying books." Mr.A.V. Ravi Shankar Vice President (Legal) IDFC __________________________________________________ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com From mary at sarai.net Mon Dec 30 11:27:47 2002 From: mary at sarai.net (Meyarivan) Date: Mon, 30 Dec 2002 11:27:47 +0530 (IST) Subject: [Commons-Law] Biggest IP cases of 2002 [ from slashdot.org ] Message-ID: http://slashdot.org/articles/02/12/29/1545213.shtml?tid=96 -- snip from the post on slashdot -- The Biggest IP Cases of 2002, has a nice summary of some of the intellectual property cases that have caught our attention this last year. Of particular interest to slashdotters: Kelly v. Arriba Soft Corp. (regarding Arriba's visual search engine), Enzo Biochem Inc. v. Gen-Probe Inc. (regarding a gene patent being invalid because it did not meet the written description requirement), an Illinois federal court injunction against Aimster, United States v. Elcom Ltd a/k/a Elcomsoft Co. Ltd. , and Playboy Enterprises Inc. v. Welles (regarding Playmate of the Year, Terri Welles, using Playboy's marks and metatags on her website)." -- end of snip -- From cugambetta at yahoo.com Mon Dec 30 19:12:39 2002 From: cugambetta at yahoo.com (Curt Gambetta) Date: Mon, 30 Dec 2002 05:42:39 -0800 (PST) Subject: [Commons-Law] "Veda, Ayurveda, Gayatri all trademarks in Germany" Message-ID: <20021230134239.3290.qmail@web12205.mail.yahoo.com> A follow up to the Vastu TM issue. From the Economic Times today. -curt Veda, Ayurveda, Gayatri all trademarks in Germany PTI[ MONDAY, DECEMBER 30, 2002 04:42:36 PM ] NEW DELHI: After Vastu, it has now been found that over 40 Indian concepts, including Veda, Ayurveda and Gayatri, have been registered as trademarks in Germany. "It has been found that, not only Vastu, but 40 ancient Indian concepts including Indian Sanskrit books Veda and medical entreaties Ayurveda and a religious chant, Gayatri, have been registered as trademarks in Germany," Ashwinie Kumar Bansal, director of the Vastu Shastra Institute told PTI here. The institute had last week discovered that Vastu - an ancient Indian architectural concept - had been registered as a trademark by a German organization, Samhita, sometime in 1998-99. These trademarks have been registered by several organizations, including Samhita, which is run by followers of Maharishi Mahesh Yogi, Bansal said, adding that Mahesh Yogi was using Maharishi Veda and Maharishi Ayurveda as registered trademarks since Veda and ayurveda had been already registered by other organisations in Germany. While Veda had been registered as early as in 1984, Gayatri had been registered very recently, he said. Bansal, who is an arbitrator on the World Intellectual Property Organisation (WIPO) since 1996, said that he would soon approach the government and WIPO on this issue. "I have also recently floated an Intellectual Property Rights Forum for the protection of Indian concepts which will work as a watchdog against Indian concepts being used by foreigners abroad," he said. Bansal claimed that the registration of Veda and Ayurveda as trademarks was being justified by Mahesh Yogi on grounds that "you cannot own a living person, but when he dies, his body organs can be claimed as a property by others�. �Similarly, Sanskrit is a dead language and its words and concepts can be owned by anybody who registers them first.� Other general terms registered by Mahesh Yogi are Vastu Vidya, Purusha, Vedic Science and Mother Divine. Similarly, a patient's traits of vata, pitah and kapha have also been found to be registered in Germany, he said. Bansal warned that unless the government took notice of these developments, India would lose control over the use of words of Indian origin such as brahmacharya and langot. __________________________________________________ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com From cha_mathyoo at hotmail.com Tue Dec 31 09:52:39 2002 From: cha_mathyoo at hotmail.com (Mathew M. Chacko) Date: Tue, 31 Dec 2002 09:52:39 +0530 Subject: [Commons-Law] Biggest IP cases of 2002 from India Message-ID: Hey , the biggest ip cases from India ....last year - 1. Dimminaco AG v. Controller (CAL HC) 2. Anil Gupta v. Kunal Das Gupta (DEL HC) both available (and more) at www.iprlawindia.org Mathew ====== 'And they both looked the same.' _________________________________________________________________ MSN 8: advanced junk mail protection and 3 months FREE*. http://join.msn.com/?page=features/junkmail&xAPID=42&PS=47575&PI=7324&DI=7474&SU= http://www.hotmail.msn.com/cgi-bin/getmsg&HL=1216hotmailtaglines_advancedjmf_3mf From jeebesh at sarai.net Tue Dec 31 11:49:08 2002 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 31 Dec 2002 11:49:08 +0530 Subject: [Commons-Law] Fwd: The Wireless Commons Manifesto Message-ID: <200212311149.08200.jeebesh@sarai.net> ---------- Forwarded Message ---------- Subject: The Wireless Commons Manifesto Date: Mon, 30 Dec 2002 12:36:54 -0600 From: "Jon Lebkowsky" To: "Nettime-L" Importance: Normal NOTE: Anyone can sign The Wireless Commons Manifesto (http://dev.wirelesscommons.org/node.php?id=2). Charter signatories: Adam Shand (Personal Telco), Bruce Potter (CAWNet), Paul Holman (Shmoo Group) and Cory Doctorow (EFF). ---- We have formed the Wireless Commons because a global wireless network is within our grasp. We will work to define and achieve a wireless commons built using shared spectrum, and able to connect people everywhere. We believe there is value to an independent and global network which is open to the public. We will break down commercial, technical, social and political barriers to the commons. The wireless commons bridges one of the few remaining gaps in universal communication without interference from middlemen and meddlers. Humanity is on the verge of a turning point because the Internet has transformed the way humans relate with one another. All communication can be traced to a human relationship, whether it's lovers exchanging instant messages or teenagers sharing music. The Internet has given us the ability to communicate faster and more cheaply than ever before in history. The Internet's value increases exponentially with the number of people who are able to participate. In today's world, communication can take place without the use of antiquated telecommunications networks. The organizations that control these networks are limping anachronisms that are constrained by the expense and physical necessity of using wires to build their networks. Because of this, they cannot serve the great mass of people who stand to benefit from a wireless commons. Their interests diverge from ours, and their control over the network strangles our ability to communicate. Low-cost wireless networking equipment which can operate in unlicensed bands of the spectrum has started another revolution. Suddenly, ordinary people have the means to create a network independent of any physical constraint except distance. Wireless can travel through walls, across property boundaries and through a community. Many communities have formed worldwide to help organize these networks. They are forming the basis for the removal of the traditional telecommunication networks as an intermediary in human communication. The challenge facing community networks is the one limiting factor of wireless communication: distance. The relationships that can be formed across a community wireless network are limited by their physical reach. Typically these networks are growing to the size of a city, and growth beyond that point requires coordination and a strategic vision for community wireless networks as a whole. Without this coordination, it is hard to see how the worldwide community of wireless networking groups will ever merge their systems and create a true alternative to existing telecommunication networks. There are many barriers to the creation of a global network. So far, the focus has been on identifying the technical barriers and developing methods to overcome them. But technical problems are the least of our worries, the business, political and social issues are the real challenges facing community networks. Hardware and software vendors need to understand the business rationale for implementing our technical solutions. Politicians need to understand our requirements for universal access to unlicensed spectrum. The public needs to understand that the network exists and how to get access. Unless these problems are identified and addressed, the community wireless movement will never have influence beyond a local level. Most importantly, the network needs to be accessible to all and provisioned by everyone who can provide. By adding enough providers to the network, we can bridge the physical gaps imposed by the range of our equipment. The network is a finite resource which is owned and used by the public, and as such it needs to be nurtured by the public. This, by its very nature, is a commons. Becoming a part of the commons means being more than a consumer. By signing your name below, you become an active participant in a network that is far more than the sum of its users. You will strive to solve the social, political and technical challenges we face. You will provide the resources your community consumes by co-operating with total strangers to build the network that we all dream of. jon lebkowsky http://www.weblogsky.com jonl at weblogsky.com # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- From shamnadbasheer at yahoo.co.in Tue Dec 31 13:00:39 2002 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Tue, 31 Dec 2002 07:30:39 +0000 (GMT) Subject: [Commons-Law] "Veda, Ayurveda, Gayatri all trademarks in Germany" In-Reply-To: <20021230134239.3290.qmail@web12205.mail.yahoo.com> Message-ID: <20021231073039.56350.qmail@web8005.mail.in.yahoo.com> the registration of Veda and > Ayurveda as trademarks was being justified by Mahesh > Yogi on grounds that "you cannot own a living > person, > but when he dies, his body organs can be claimed as > a > property by others”. “Similarly, Sanskrit is a dead > language and its words and concepts can be owned by > anybody who registers them first.” mahesh yogi should restrict himself to spriritual pursuits. sanskrit terms which describe the goods/services (that they are registered in relation to) cannot operate as "source indicators" or trademarks-a cardinal rule of trademark law, which has escaped the notice of the well learned guru. on another count, the yogi has confidently assumed that body organs are up for grabs once the person dies-extremely promising legal jurist in the making here...one is yet to come across a more succinct and sweeping statement of the law relating to bodily organs. shamnad ps: the indian followers of the spiritual mystic (not "sex guru" as the media proudly proclaims), osho, have mounted a challenge to the trademarks OSHO, KUNDALINI MEDITATION etc that have been registered in teh US, by their US counterparts. their first success came in the form of a NAF domain name ruling, where the arbitrator clearly held that the term OSHO cannot operate as a source indicator-since it means and can only MEAN one clearly identifible person. --- Curt Gambetta wrote: > A follow up to the Vastu TM issue. From the Economic > Times today. -curt > > Veda, Ayurveda, Gayatri all trademarks in Germany > > PTI[ MONDAY, DECEMBER 30, 2002 04:42:36 PM ] > NEW DELHI: After Vastu, it has now been found that > over 40 Indian concepts, including Veda, Ayurveda > and > Gayatri, have been registered as trademarks in > Germany. > > "It has been found that, not only Vastu, but 40 > ancient Indian concepts including Indian Sanskrit > books Veda and medical entreaties Ayurveda and a > religious chant, Gayatri, have been registered as > trademarks in Germany," Ashwinie Kumar Bansal, > director of the Vastu Shastra Institute told PTI > here. > > > The institute had last week discovered that Vastu - > an > ancient Indian architectural concept - had been > registered as a trademark by a German organization, > Samhita, sometime in 1998-99. > > These trademarks have been registered by several > organizations, including Samhita, which is run by > followers of Maharishi Mahesh Yogi, Bansal said, > adding that Mahesh Yogi was using Maharishi Veda and > Maharishi Ayurveda as registered trademarks since > Veda > and ayurveda had been already registered by other > organisations in Germany. > > While Veda had been registered as early as in 1984, > Gayatri had been registered very recently, he said. > > Bansal, who is an arbitrator on the World > Intellectual > Property Organisation (WIPO) since 1996, said that > he > would soon approach the government and WIPO on this > issue. > > "I have also recently floated an Intellectual > Property > Rights Forum for the protection of Indian concepts > which will work as a watchdog against Indian > concepts > being used by foreigners abroad," he said. > > Bansal claimed that the registration of Veda and > Ayurveda as trademarks was being justified by Mahesh > Yogi on grounds that "you cannot own a living > person, > but when he dies, his body organs can be claimed as > a > property by others”. “Similarly, Sanskrit is a dead > language and its words and concepts can be owned by > anybody who registers them first.” > > Other general terms registered by Mahesh Yogi are > Vastu Vidya, Purusha, Vedic Science and Mother > Divine. > Similarly, a patient's traits of vata, pitah and > kapha > have also been found to be registered in Germany, he > said. > > Bansal warned that unless the government took notice > of these developments, India would lose control over > the use of words of Indian origin such as > brahmacharya > and langot. > > __________________________________________________ > Do you Yahoo!? > Yahoo! Mail Plus - Powerful. Affordable. Sign up > now. > http://mailplus.yahoo.com > _______________________________________________ > commons-law mailing list > commons-law at mail.sarai.net > http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law ________________________________________________________________________ Missed your favourite TV serial last night? Try the new, Yahoo! TV. visit http://in.tv.yahoo.com