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* Posts by Matthew

21 posts • joined 7 Jun 2007

Ballmer disses Oracle's decision to buy Sun

Matthew
Gates Horns

PEBKAC Error anyone?

Meh, it's thinking like that that has allowed Google to come from behind and scare MS as it has.

Vertical Integration actually means something in the corporate world, and that's why a software company would buy a hardware co. Ignore the goodwill, patent portfolio, and opensource development that I'm sure both Oracle and MS would love to make use of. Oh yeah, Java. Never mind that has all kinds of applications in terms of Oracle's operations. There's no way Ellison wouldn't know this.

I also believe Ellison's made more money than Ballmer, if that's any indication of knowledge and success (not saying that it is), then I'm more inclined to go with Ellison's decision here. There is a reason ahead in that game.

Balmer's either not being honest, or else he's not fully appraised of the particulars here. I'm not sure which it is though.

Bad Bill because his predictions are about as good as Ballmer's.

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Judge sends Blockbuster to court over Facebook Beacon Borking

Matthew
Happy

IANAL

Just a contracts guy.

I'm all for this ruling. Changeable clauses like these ones have been used because no one said they coundln't be enforceable until now, so everyone threw them in, hoping they'd stick until someone knew better.

The problem with them is that Contracts are supposed to show a meeting of the minds of the two parties. Yes one can say that terms need to be flexible enough to adapt, and that one can agree to anything into a contract. Meeting of the minds, an intention to contract, and certainty of terms. That's the beauty of contracts, but these clauses are totally anathema to the concept of a contract.

Nearly anything can be changed: price, property. The benefits conferred (consideration) to either party are entirely adjustable by one party. Basically one party dominates the contract by virtue of their bargaining position (std form agreement), and ruins the exchange value of this contract. If there's ever a reason for unconscionable contracts, this is it (Unfair terms agreed by way of dominant negotiating position).

This even affects limitations of liability, and these are things that have traditionally held short shrift with judges. The basic concept is you can limit your liability to exactly (emphasis: exactly) what you ask for. No more, no less. With these clauses, you can effectively amend or retroactively(!) amend your liability or even jurisdiction clauses to be more favorable. There's already significant judicial debate about what a Limitation clause can apply to, and if it's properly brought to the attention of the other person. One opinion is that if the limitation basically destroys the value for one party completely, that's it is problematic for enforceability. The whole "we can change anything and not tell you" part flies entirely in the face of this.

I do think this ruling will be limited in some capacity. It'll probably be the agreement that the consumer was last made aware of. It'll probably need to include a mandatory walk-away period. We have those here in Canada wrt to cell phones and renting where you have a period of time to walk-away entirely if drastic changes are made. I think the rationale for this is that it builds a new contract effectively by performance. You know about the changes, and accept them by continuing to use the service or product. Knowledge is critical.

I am NOT a lawyer, I just have wierd reading habits, this is not intended for, or to be used as any form of legal advice.

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Canadian cops cry for BlackBerry wiretap

Matthew
Stop

Don't invest in tinfoil heargear yet

The nice thing here is that really these are musings at this point, and the polarization of the Canadian political system means that this may run into some difficulty actually succeeding.

Oh yeah, there's also our pesky Charter of Rights and Freedoms thingy that is ultimately defended by a rather liberal (in comparison) judiciary, and S.1 (for those who know about it) isn't a blanket allowance for Parliamentarians to do whatever they want. It would also pretty much mean that the SCC would have to determine if Privacy matters are part of the Charter, they've hinted at it in the past.

It's a rather silly proposal, that at the moment has an awful lot of barriers in its way. I don't really see this as anything more than spit-balling by an impotent opposition bencher.

We don't have the ever-present CCTV, our DNA banks are fairly limited, and on a pardon, you can even get your info removed if you ask nicely. Surveillance is generally limited, remember, our judges actually have real power here, and having met as many lawyers as I have, I'm convinced most of em are pretty vigorous about defending our social rights too. Not afraid of being intercepted and charged like the Brits.

And No, it's not rose-coloured glasses I'm wearing, before anyone criticizes me.

And odds are, yes the Royal Canadian Mounted Police probably do have keys to M. Jenning's residence. As a security precaution they often have the locks specially installed with their keys so as to be able to get quick access for important people.

Our Telco's suck though, I'll get that out in the open, right up there with Bears and our woods.

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Facebook downplays eternal user data grab

Matthew
Flame

Bull.

Zuckerberg and Facebook are speaking out of each side of their mouths right now.

"Our philosophy is that people own their information and control who they share it with,"

Beacon? What happened to the opt-out there? Only happened in the face of massive protest.

"Without this license, we couldn't help people share that information."

No, this licence does not need to be this restrictive or grasping to accomplish this. I've written and designed these sorts of licensing agreements. It doesn't need to be that one-sided to share that kind of personal information. Especially relating to deleted/deactivated accounts. They can do carve-outs if they're serious about minimizing the impact here.

Email...yeah right.

Sorry, I'm sceptical of this, and the brain-trust that tries to pull Beacon on consumers without an opt-out does not get my blank trust.

Not while they've left in that god-awful "we can change these terms at any point without notice" stuff. Any other clauses are irrelevant. So long as this one is here, it is necessary to assume the absolute worst.

It may be a bit paranoid. But it's also an unfortunate reality.

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iPhone beer maker sues Carling over virtual suds

Matthew
Unhappy

Yawn

They used a different video clip, added a bunch of content etc. The display is fundamentally different.

The idea may be the same, but you cannot copyright an idea, merely the means of expression.

That's the concept anyhow, we'll see how practice rolls out

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Police drop BT-Phorm probe

Matthew
Thumb Down

Freudian Slip?

I don't buy it.

The determination of whether a crime occurred or not isn't really up to the police. The proper thing here is that they cannot find sufficient evidence to go forward with a prosecution. That isn't what they've said. This may be a verbal slip or it may be indicative of something more sinister.

Criminal Intent or lack thereof should probably be left to the judiciary. The idea of "implied consent" is/should be a judicial decision. It is a potential defense, but shouldn't be a defence at the investigative level.

The police's job is to investigate. Then to pass on recommendations and evidence to the CP (or british equivalent). The CP's job is to determine if there is justifiable grounds to seek a conviction, not the police. Nor is it the police's job to try and defend the suspected individual.

The police here are trying to do the judiciary, and (both) the lawyers' jobs here. Someone should probably let them know that they should be focusing on investigation.

If for no other reason than clarity, this should probably go to court to determine "implied consent" and its validity in communications interception. That's a public policy argument.

But that's just this foreigner's opinion. IANAL.

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BSA: Software piracy's 'tragic' impact on US society

Matthew
Thumb Down

Not to repeat the obvious,

This is a total crock.

Saying one sector would be better off, and thus pay more taxes is simply reportioning a pie. It's still the same pie, but now with crumbs on the floor. There's less pie for everyone. It wouldn't result in higher overall tax revenues.

This ignores subsequent value adds, which get taxed. This is where commercial activities create value further down the supply chain.

It ignores dead-weight losses to the economy such a regulation regime would add above and beyond the existing losses caused by infringement (There is a cost to society for some types of infringement). Net loss to society btw.

Ignores that the economy is not grown by a regulated or tax fix. Taxes only increase without a rate jump through economic real growth. This doesn't occur by restricting access to technology, or through monopoly pricing.

Ignores the cost to society of a monopoly. This is thoretically cancelled by the gains in innovation (not likely if patent and copyright terms keep getting extended)

Effectively the biggest hole here is to say "You'd get 1.7bn more in taxes!!!" The gov't already gets those monies in taxes from other sources. (eg the money saved from paying for software goes to other things (buying materials or profits), and generates taxes from that, unless everything had a value of 0). The only way they'd get that is through passing the taxes on to foreigner consumers, which could only happen through trade deals (which is being tried). Domestically it is a net loser, not winner.

Funny thing is, this will probably get all kinds of traction with politicians.

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BT's 'illegal' 2007 Phorm trial profiled tens of thousands

Matthew

Can someone explain something to me?

The thing I don't understand about Phorm is "DO they replace/insert ads on websites, and does the website have to agree?" From the commentary here, it isn't that obvious that they do.

Reason for asking: many sites make money from ads. Some they handle through networks, some the self sell, etc. If Phorm comes along and replaces that ad that *I* have put in, Phorm is putting my revenue at risk. If the site has consented to this, that's one thing, if they have not, then that's significant. I have not seen that sort of partnership being touted or even mentioned in what I know about Phorm.

BT slapping their ads or accepting payments for ads to be slapped over other networks or sites is all kinds of bad.

Webmasters are slightly more technically adept, and may be more willing to dry Phorm up at the source: the customer.

If the UK authorities won't act, take a play from accross the pond. Litigate. Civil/tort actions for breach of privacy are perfectly legitimate means of affecting commercial interests and disincentivising certain behaviors. Ambulance chasers occasionally serve a purpose. This might be one such case.

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Bell Canada chokes BitTorrent traffic on someone else's ISP

Matthew
Unhappy

Bell should provide what they've been contracted to provide.

Like most here, I dislike that Bell is telling users how they can or cannot use the service that they pay to use (without restriction according to the adverts).

What I really dislike, and find downright sketchy is that Bell bills (ISPs) on a data rate, or peak bandwidth rate. That means that for TekSavvy, paying for the data that their users are putting through the network, regardless of time of day, is part and parcel of the contract. They've honored that (so far as I can tell). That contract doesn't include any limits or whatnot imposed by Bell other than some basic network maintenance terms. TekSavvy is quite right in suggesting that to make this permanent moves it beyond a simple maintenance issue. if Bell is going to act this way, they probably should compensate Teksavvy, and their customers for not providing the service they agreed to, and were paid for.

Telus is effectively a Natural Monopoly, they're regulated in Canada by the CRTC, but even that has limits. Telus really hasn't been able or willing to keep up with the infrastructure needs, and that's a real problem. But it is now a problem that they're passing down to consumers because they're a monopoly of sorts. This is why we have the CRTC, and gov't regulation, and this is where they are supposed to step in.

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Canadian runs up $85,000 mobe bill

Matthew
Thumb Down

Stupidity all around.

The guy's none too bright, but the Carrier company isn't any better. What's more, they actually may have an obligation under Alberta law, to pay attention and not let silly little bills like this happen.

Alberta has an Act called the Fair Trading Act. Under this, if someone sells something to someone who had no use for the product, or could not be expected to pay, is liable. The sanctions can include criminal sanctions (if I remember right, it may only be a hefty fine), and can go up the management chain. A 60k monthly bill is pretty hard to expect someone to have the means to pay. Even if they are working in the Oilsands.

Plus there's the whole Competition Tribunal, the CRTC, etc.

Rogers and Bell sitting there saying "we can't monitor the activities of everyone" is disengenuous, they can tell me every billable action on my phone, complain when I exceed 65GB of data on my "Unlimited broadband". They're able to reliably track something for everyone. A 60k bill should have set off alarm bells at the telco. It didn't, so they have some responsibility here.

They may not like it, but it's likely a required cost of doing business. Of course considering the market is pretty much a monopoly pricing model, the rest of Canada will wind up with his bill.

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AT&T asks king's ransom for Napster tunes

Matthew

Which is it.

Aren't youth and younger individuals also responsible for most piracy out there too? Isn't that a reflection of the whole "it should be free" philosophy of this generation that certain organizations love to accuse?

The reason they're price insensitive is A) because they aren't paying for their cell bill, parents are, or B) they get submarined by hidden or poorly disclosed fees and charges.

Either way, it's less than honest business practices at work, and it's why I hate my cell phone provider.

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Sheet music site forced offline

Matthew
Stop

70 years hokum

Canadian site, Canadian laws. We've (Canada) signed on to international copyright treaties for a maximum of 50 years after a composers death. 70 years is a European thing, so based on relevant jurisdictions, the lawyers pushing 70 years can go get stuffed.

If he was providing music from authors less than 50 years after they died (yes their estates and children are supposed to see benefits etc.), then yes he was actionable.

However, if the company wants to take an interest in suing him for their particular publication rights, then they better look to see if it was within 50 years of authorship (corps are eternal, so copyright is ony good for 50 years).

IANAL, just an annoyed reader.

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Facebookers abandon online privacy for virtual doo-doo

Matthew

Not at all surprised

I'm actually not that surprised that people would be willing to give away personal info like this for free crap (pun not intended).

I seem to recall a study that was published about 18 months ago, where the goal was to see what kind of info people would give away for the chance to be eligible to win something. The results were stunning, personal info, work passwords, shopping habits, etc. etc. people were willing, at a high rate of capture success, to give this valuable info up to possibly win stuff. I think it was the BBC who ran the initial story that twigged my attention to it, but I can't seem to get through to them today.

This isn't exactly new, but really only shows that we really need better education about privacy (not that we need to teach what it is, or why it's important, but how we can lose it) in order to really avoid these kinds of iffy operations.

One major question that I do have, in respect to privacy laws, is that most make a distinction about biometric data (data that can be used to indentify an individual) and what liabilities exist for security failures. Would this kind of Mecca Advertising qualify, and if so, wouldn't that preclude them from selling it? Willing surrender is irrelevant. Anyone know?

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NY probes Facebook over pedophile controls

Matthew

Damned if you do, Damned if you don't

Unfortunately for Facebook, they're in a bit of a tough spot. They can't take too many steps to prevent this kind of crap for fear of becoming more of content editor, and being liable for it, and yet if they do the minimum, they wind up with Gov't lawyers knocking on their doors.

Speaking as one who used to deal with this kind of crap, it's a really delicate balancing act, and it can get very expensive, fast.

The entertaining part here is that it's the advertising that seems to be getting them all the legal hourrah.

FYI, there's a ton more security and user safety measures that Facebook and Myspace can take to protect their users. None of it will be perfect or eliminate predators, or crime uses of the networks, but it does reduce it. But it's all about the $$$.

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Software developer sues to muzzle website users

Matthew

Passing the blame

Slight point of legalese and annoyance here, but how does 2clix intend to show that this material, if malicious, has actually caused them damage to the tune that they're alleging?

I mean really, it couldn't be poor management strategies (shot in the dark here, oops, I might have hit a lawyer), simple economics of the business sector, poor competitiveness of the company, statistical anomaly, etc. ad nauseum.

What I'm getting at here is that it seems as though the management at 2clix is trying to make a sort of scapegoat to explain flagging numbers. But that's my opinion here.

It's possible that it might be posted by a competitor, might be malicious, might have directly affected an approximate 700k deal, might actually not be individual opinions or experiences. I don't have all the facts here, but on the surface, it looks pretty sketchy.

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Another investigation into Pirate Bay child porn

Matthew

@Tony

Morality is a wierd thing to define. My morals are different from yours, and everyone else's. To say they should ascribe to "moral standards" or "moral decency" is akin to saying they should ascribe to your morals etc.

Now I'm not saying this is right, or wrong, I'm not commenting on yours or Hinod's morals here. However, I am saying that there are valid points to both sides. Hinod however is saying that free speech is higher on the scale of morals than hunting down kiddie-porn. You're saying Kiddie porn is higher.

The added bonus issue here is a matter of liability. I cannot speak for Sweden's laws, but in Canada, working for an organization that would be occasionally frequented by paedophiles, we had to be extremely careful about how we pursued them because we might lose our legal defence with regards to ISPs and Common Carriers. If that were the case, we would need to monitor *every* piece of information being added from over a million people. That liability is huge, and it is prohibitive for many organizations upto and including Google, Facebook, Myspace, MSN to name a few.

Pirate Bay is in the situation where if they hunt down the illegal content they are not rewarded. In fact, they are actually punished by higher costs, legal awards, criminal sanctions and others. It isn't a pretty situation, but it is reality.

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SCO 'disappointed' as shares plunge 70 per cent

Matthew

Even sharks have to eat

"We still have Novells counter claims + IBM's summary judgments and counterclaims to get through yet. All though Novell can stop SCO from suing IBM I can't see anything this side of Armageddon stopping IBM and its counterclaims.

I get the feeling IBM is taking this personally and on top of that its lawyers are having a ball."

Doubt it, there's not much left there. IBM may want to make an example of them, but I think the point is made. Short of the IBM lawers going after the SCO executives, which likely would be done through the SEC, this bird is dead and picked over. There's not much left on this carcass for the lawyers to feed on, so they'll move along smartly.

"Also, SCO owns the exclusive, worldwide license to use the UnixWare trademark, now owned by The Open Group" Yes, they *owned* it. It's been since given away or sold, and those assets have been accounted for, and soon your asse(t/s)s will belong to Novell. Its basically saying, we didn't have a right to sell those other licenses, but we did own that one to sell, see!!!

The only thing SCOX stock has been consistently good for is to sell on margin. But all good things must come to an end.

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UK gov rejects Cliff Richard's copyright extension

Matthew

Something's fishy

I was under the distinct impression that copyright privileges actually survived the authors. The period as I understood it under the Berne Convention, Rome Convention etc. was for copyrights to exist for the life of the creator, and then for 50 years after that. It's the reason Elvis is still paid royalties even though he's been dead for a few years now.

Now for corporately held copyrights, that's different, corps don't die off so the copyright'd need to eventually expire. If this is what the article is dealing with, that's different.

It'd teach the labels to hold the copyright. Leave it with the artist, it'd last longer.

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Behind the Apple vs Universal breakup

Matthew

Just plain dumb for Universal

One thing that I really like about the blank media levy in Canada is that it allows, by virtue of contract law, the ability to say to the whiners (RIAA) "You've been compensated, now shove off (and get bent)". While it doesn't allow you to upload, it does permit downloading of music.

If Universal wishes to apply something this poorly thought out, then they and their attack dog organization should be forced to shut up about lost sales due to downloading. The fact would be for downloaded tunes, they would have recieved their piece of pie, even if they wind up wearing it.

As for those worried about it being for all computers, this isn't what the article is talking about, not yet anyways. This is simply talking about a contracted share of Ipod revenue for the use, at the existing rate, of the Universal portfolio. The slippery slope argument, the "what MIGHT be used for" rubble is just that, someone somewhere will draw a line in the sand. Given that Universal really has no clout with computer manufacturers, it's unlikely that they'll be able to apply this to HDs or computers in general. As for a gov't legislated thing, that's unlikely at this point, but is a whole different problem.

Personally I think Apple will/should dare them to take their ball(s) and go home. Short of 2 or more of the major labels pulling out, and setting up their own successful online distribution network, which would need to be done cooperatively (in order to be competitive with P2P, remnants of iTunes, etc). The Ipod and it's revenues won't be seriously affected, the labels would see a real impact in their revenue streams (61% of 2.5Bn over 4 years). Apple sees an impact of 15%, with say a teardown of 40% costs.

You're talking each of the big 4 labels takes an average impact of 100M/year

Apple eats: 56M/year.

My response as Apple would be to pursue the bands themselves, expand the garage band concept, offering them something rediculous like a 40-60 split. At that point especially the large artists should, as their contracts expire, leave the major labels as it becomes far more lucrative for them to sell through iTunes, and they have the recognition to not need the distribution network of the major labels. With the big guys in tow, the little artists will follow, and Apple will really have hurt the major labels, and becomes a label themselves. The major labels effectively have to focus on breakout talent, or give the artists a fairer shake of the profits, and I don't see how that's bad. Apple really has the big stick here, I dunno why Universal is taking this approach to diplomacy, it's just going to hurt them in the end.

Back to the "royalty" crap, I think this should allow you to download all you want, I'd love to go further and see uploading too. Either that or a reasonable copyright time.

But IANAL, so take it with a grain of salt.

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Matthew

Sorry one thing I missed in the "if I were Apple"

Apple had a gross profit of 5.6Bn last year. 56M is relative pocket change.

Plus, should the "royalty" cost more than 56M/ year, it makes no sense for apple to continue operating iTunes.

Consider $1/ipod for Universal, 4 years, 100M ipods, that's 25M/year. BEFORE you factor in the asking prices of the other labels who, seeing this sweetheart deal will seek it.

Talk about poisoning the well.

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Crocodile tears for under-fire Microsoft MVP

Matthew

Who pays for a mistake?

The single biggest issue that I have here is that this is a EULA. This is a document crafted by Microsoft saying 'these are the terms you must agree to to use this". It's not like a standard contractual agreement that is negotiated or reflects an actual agreement.

MS is dictating terms, and while there isn't anything wrong with this, there is a major issue when they screw up. A good Lawyer, and MS can certainly afford them should have asked the question, "What are you trying to do, and what is important to you?" and write these in as material clauses. Given the EULA nature, this makes the EULA MS's wishlist of terms.

Given the clause given that Mr Cansdale violated is (imo) a fairly broad catch-all line. This means that either MS did not view the limitation of extensibility as material, and the developer/MS management blogging is trying to make it material retroactively, or the lawyers and management did not agree on what was important, or the lawyers made a critical mistake.

No matter how you slice it, I don't see the mistake necessarily apparent at Mr. Cansdale's end. I see the issue as MS's mistake, but Mr. Cansdale will likely be the one to pay for it.

A better approach I think MS should have done is work with him to only allow freebies for the Express version. Mr. Cansdale's pay version would only work on Pay versions of VS. This makes TestDriven an upgrade reason for VS Express which is the *entire* idea of the pared down version of the software. Everyone wins without the PR nastiness and chilling on the Dev Community.

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