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The Magic Cafe Forum Index » » APPS-alutely » » An important discussion as apps for mentalism move forward (PLEASE READ) (94 Likes) Printer Friendly Version

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jonnyboy
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John,
As an intellectual property attorney for 28 years, I can tell you that unless the developers of the previous apps adequately protected their tools with intellectual property protection of some kind, they have no legal position to stop you using these tools (such as input techniques, etc). Nor do they really have much of a moral leg to stand on with respect to such tools, in my non-legal opinion. If they truly invented and wanted to protect their invention, they have an obligation to file for protection, or they dedicate their invention to the public. But, as mentioned in an earlier post, it is more likely that they used an existing input mechanism created by someone else.

For patent protection, which certainly can (and surprisingly often is) used to protect magic inventions, the applicant would have to convince the Patent Office that the method is both novel and nonobvious. Patent protection, once granted, is very powerful, and provides some latitude in scope of coverage. However, it is expensive to obtain, which causes many magicians to forego seeking it out, along with the requirement of exposing the secret.

Copyright protection is also possible for software, such as apps. Copyright protection is much more narrow than patent protection. You practically have to copy the structure, the imagery, the code, in order to violate the copyright.

From what your original post says, it doesn't seem that there is any strong argument that you would be violating a magician's patent, or that you would be violating any copyright, since you are using much different plots and creating different effects. The use of basic tools that manufacturers have created to put in information into a phone seems very akin to the basic building blocks in other areas of creating, such as engineering, and in other magical specialties, such as cards and coins. A previous app developer would have to provide a pretty compelling rationale to explain why their method of input is original in itself, not just that they created a magic app and used a known method of control and/or input.

The above is informational only, and is not to be taken as legal advice. The specifics of your developments, as well as the previously developed apps by others, will control the legalities. If you have concerns, you should contact a local intellectual property attorney.

John
BMWGuy
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Hey guys,

I guess I would have to agree with jonnyboy, we all stand on the shoulder of giants, and I also agree with you John in the sense that it doesn't seem like you would be stepping on anyones toes, regardless of the techniques used to accomplish the effect, just as long as its not a direct copy of an app based effect already on the market, which I clearly would think would not be, but I like you would like all mentalism to move forward and if by using app based magic for some mentalists is it, then that's great, because the envelope will continue to be pushed and more inventions actually seeing the light of day, and experimentation can thus commence.

I only use 2 apps at the current moment, and nobody has ever screamed out that I was using an app. It all depends on your framing and the way you sell the effect to the spectator. Even if the phone is still in play till the very end, does not matter.

Alex
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Tom Cutts
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There are taps and swipes, and then there is how those are implemented to achieve deception. The two are not the same. Those who are using them interchangeably are deceiving themselves and others.

That would be akin to saying a particular set of moves of Armando Lucero's exquisite Coin Menagerie are simply ways to interact with coins secretly, and deserve no protection. They are no different than pretending to have a coin in your hand.

So again, as an app creator, without details the discussion of who or what deserves protection, recognition, or respect is fruitless. It will forever devolve into the uninformed misinforming.
DynaMix
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I don't understand how you can equate the two.

I haven't seen the coin routine you mention but I imagine it borrows from some previous handling out there?

There HAVE TO BE building blocks. Taping a screen is a building block.
If someone invents a new routine/plot line/ effect you are GOING to HAVE TO interact with the phone somehow.
Tom Cutts
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Yup, tapping a screen is a building block. That is not what I am talking about. I realize it is what others are (errantly) talking about, but it IS NOT what is at the crux of most app development debates. I'm sure if the issue was someone claiming that they invented tapping the phone or swiping the phone, that would be clearly spelled out here.
Honest Deceptions
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Great point BMWGuy...totally agree
Rick Maue
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Greetings,

I am very passionate about protecting the rights of creators. However, I am equally passionate about the realistic acknowledgement of basic building blocks (to use the phrase from above), and that such building blocks are certainly not proprietary. And I agree with John when he listed options such as "Flipping over the phone in different ways, timing, swiping, multiple tapping, passcode lock screen, using a pebble, using a bluetooth remote, internet synchronizing, secret writing with finger, etc."

Those things are basic building blocks. Just like false shuffles, palming, peeks, etc. To claim ownership of them is not only impossible, it is also ridiculous.

On the other hand, I completely agree with Tom when he stated, "There are taps and swipes, and then there is how those are implemented to achieve deception. The two are not the same. Those who are using them interchangeably are deceiving themselves and others."

Exactly.

In many ways, I see John and Tom making the exact same point (although they may both disagree with my assessment). The reason that I say that is simple. The "taps and swipes" are generic technical necessities that are required to use the device. Just like shuffling is a generic technical necessity with a pack of cards. How those "taps and swipes" are employed is the issue. That is where we get into construction, handling, motivation, scripting, character development, audience management, etc. In other words, that is the point that we leave behind generic technical necessities and enter the world of creativity.

With all of that said, and to streamline this post (and from what I can tell, John's original question), "taps and swipes" are certainly not proprietary. They are equivalent to shuffling a deck of cards. It is what lies beyond the building blocks that is important.


Keep the change,
Rick
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juggernought
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John,

From what little I know about you, and having read your books, I have always thought you seemed like a decent guy. However, I couldn’t disagree with you more on this argument and it would be a great shame if you use the ideas of others expressly without their permission.

I am friends with several people who I know have created input methods which are extremely clever. I know how much time and effort they have invested into these ideas. Their livelihoods depend on the ideas that they have. If you were to take one of these methods without their permission, without even paying them, it would be unfair to both them and their families.

I understand your point that magic needs to develop and move forward. But this cannot be at the expense of morals and of the very people whose innovation has moved magic forward in the first place. Utmost respect must be paid to these people.

Furthermore, such actions may actually be detrimental to the progress of magic. If people get taken advantage of and ripped off each time they put something new into the community, then these innovative minds will not want to release anything more in the future.

Also, if you applied your own mind to input methods, I am sure you could come up with something yourself. I do not accept that they have all been done before. By people deciding to take what others have used instead of innovating themselves, then progress of is impeded.

I’m sure that after some consideration you will do the right thing John!

P.S. Tom, I agree with everything that you have said. You raise very good points.
Exitmat
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Quote:
On Oct 26, 2014, juggernought wrote:
John,

From what little I know about you, and having read your books, I have always thought you seemed like a decent guy. However, I couldn’t disagree with you more on this argument and it would be a great shame if you use the ideas of others expressly without their permission.

I am friends with several people who I know have created input methods which are extremely clever. I know how much time and effort they have invested into these ideas. Their livelihoods depend on the ideas that they have. If you were to take one of these methods without their permission, without even paying them, it would be unfair to both them and their families.

I understand your point that magic needs to develop and move forward. But this cannot be at the expense of morals and of the very people whose innovation has moved magic forward in the first place. Utmost respect must be paid to these people.

Furthermore, such actions may actually be detrimental to the progress of magic. If people get taken advantage of and ripped off each time they put something new into the community, then these innovative minds will not want to release anything more in the future.

Also, if you applied your own mind to input methods, I am sure you could come up with something yourself. I do not accept that they have all been done before. By people deciding to take what others have used instead of innovating themselves, then progress of is impeded.

I’m sure that after some consideration you will do the right thing John!

P.S. Tom, I agree with everything that you have said. You raise very good points.


And I couldn't disagree with you more on this argument.

If someone comes up with the idea of doing a one-to-four prediction by flipping the phone over one of four ways--just because they were the first to make an app with that very obvious method--does that mean they now can hold that method hostage and hold back all others from creating other effects with it? That's absurd. It is also absurd to assume that just because they were the first to program an app to use that method that no one else ever has, or ever will, come up with the same idea independently. Absolutely ridiculous.

Do we really want to be stuck with not being able to use the flip of a phone to create other effects than just a lousy one-to-four prediction just because the guy that won the race on writing his app first has some insecurity issues? Maybe one guy's idea for the method is doing a one-to-four prediction, and another guy comes up with a way to advance the method to reveal someone's name. Are you honestly suggesting we should all try and hold back the progression of creation on this? Who does that benefit? No one.

What is really stake at here anyhow? Is it someone's ego? Because personally I don't give a crap at all about that if that is what this is about. As long as the guy that published the method first is credited I think the ego stroking stops right there. It can't be about money either--because each app does something different. No matter the method, you can't reveal someone's name with the flip of the phone if it's only programmed to reveal a one-to-four prediction.

So what is it? Why would anyone who creates magic and mentalism be opposed to someone else using the same method to achieve a totally different effect? What do they have to lose? Nothing. Nothing is taken from them. It's selfish and greedy to claim otherwise. And it's ignorant to assume they were the only person to come up with a certain method just because they were the first to write an app with it. The phone works the way it was programmed. There is only a limited number of ways to interface with it.

I think anyone who feels threatened by someone else creating magic and mentalism for other performers to use in their work in order to give the best possible experience to laymen, as it relates to the discussion here concerning methods for apps, is a sad, insecure person indeed who has certainly lost sight of what it means to be a magician and a creator.

Time to move forward and leave those with egos and insecurities in the dust.
DynaMix
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In tons of other industries, competition is the final word.

Someone ones to make a better app, you should respond by making a better one yourself. People use others ideas to advance things ALL the time.

Find some legal protection and then you can block / inhibit whatever you want.

A lot of this just reads like people want magic to have its own set of rules. I wholeheartedly disagree with magic being impeded juggernought. There will always be people willing to step in and create. If you REALLY don't want your ideas to be used and built upon, I'd have no problem with such inventors exiting the game and leaving it to people who wanna be more collaborative. This is the wrong industry for you.
Mind Bullets
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John, I'm enjoying the thread. But I'm a little confused (maybe I'm just over-tired).

Is this simply the app version of method vs. effect? I'm trying to think of good analog examples that might better illustrate the distinction. So many card effects sold in books and on DVDs do not involve newly created methods, but rather combine long-standing methods into new effects and presentations. The good ones sometimes become recognized not only by the name given to the effect, but by the person who created it, even if it employs standard sleights. In fact, very often an effect's description may simply say something like, "Step 3: Use your favorite double-lift ..."

Can that same kind of description be used when it comes to using a smartphone? "Step 3: Use your favorite one-out-of-four accelerometer input method ..." And should that be a consideration when we question the ethics of using such methods?

MB
John Born
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Mind Bullets - yes, you are correct. The only difference here, and the purpose of starting this thread, is that the app world in magic does not have a "recognized" set of tools that we can vary, and no lines have been drawn for discerning what is fair game (a general tool), and what is clever enough to the point of the community protecting it and yelling foul if it is used for another purpose. What concerns me is that the two concepts that I wanted to utilize to create a completely unique effect are swiping from the initial swipescreen, and using the passcode on the passcode lock screen. Yet, I have been told these concepts are already in the "too clever" category and I would be considered stealing by using them (even though they are completely obvious techniques that should be part of any magicians repertoire for developing apps for smartphones).

I would have to argue that these two methods are simply the methods that these developers chose for their apps, not "their"methods. And regardless of my needs, for the sake of other creators I feel like the general tools we should have access to as creators goes much further into obvious variants of the list I've already mentioned (Flipping over the phone in different ways, timing, swiping, multiple tapping, passcode lock screen, using a pebble, using a bluetooth remote, voice recognition, internet synchronizing, secret writing with finger, etc.), but in this current state it seems like anyone wanting to enter this market has an uphill battle because they are being denied the simple, direct solutions in each of these paths.

Juggernought, using any of these tools that I mentioned, in no way, takes money from anyone. Only copying one's effect, which might even use a completely different method, may start to tread in that territory because then there is direct competition for creating a desired outcome. Now, let's even take it further and consider what happens in our market when using the ideas of others as a springboard for innovation. For example, does Tamariz chase people down who are releasing unique, smart material that is exclusive to his memorized stack and demanding residuals because it utilizes his stack, something he took time and effort to develop? Of course not, and this is a far more direct example of using someone else's unique creation (because no one would come out and say "I came up with the Tamariz stack independently.") In the case with smartphones, people are trying to monopolize the obvious, and it is completely absurd to consider that others would not quickly develop these methods as the simple, direct solutions to a huge array of possible effects.

JB
Steven Keyl
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Interesting discussion. A couple of thoughts popped into my head while reading the thread...

  • First, not sure why this thread was created here as opposed to one of the three forums that are already dedicated to the discussion of apps. At best it might have curtailed some of the "auto-pilot response" aversion to the use of apps which isn't germane to John's original question and at worst, might be seen by some as a way to gain a groundswell of popular sport while getting an absolute minimum of feedback from actual app developers and users who tend to focus their time in those aforementioned forums
  • Huge fan of John Born and completely agree that simple input methods like swipes shouldn't necessarily be a protected entity but the rationale of saying "it is completely absurd to consider that others would not quickly develop these methods" strikes me as off. Just because some hypothetical person may have independently devised a method invented by another is a very slippery justification to use since it can be used for anything. Since Tamariz was cited let's use him as an example. "It is absurd to think that others wouldn't have come up with the Tamariz Perpendicular Control therefore it doesn't deserve protection as an original idea because it's so blatantly obvious". Few would agree with the previous statement but if that is the justification being used it seems to be a very slippery slope. To clarify, I agree with all of John's conclusions, I'm just a bit more circumspect about the rationale
  • Tom Cutts' points are well taken. In the absence of greater specificity about a given app, ultimately no one can really say whether it strikes them as "inappropriate appropriation" because there simply isn't enough information on which to base an educated opinion. Reminds me of the 1970's when Supreme Court Justices were spending an inordinate amount of time watching porn to clarify its exact definition. Finally they stopped and issued the famous phrase "we don't know how to define it but we know it when we see it". Until we have something to actually look at, defining what is acceptable in the abstract may turn out to be somewhat futile.


What little I know about John suggests he is a forthright person with the best of intentions. And I DO know he is an incredibly adept and creative thinker in this field. If he ever does put out an app I'm proud to say I'll be the first in line. Best wishes, John. Wishing you continued success.
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mastermindreader
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Slightly off-topic, but the Supreme Court never "issued" that statement about pornography. It was Justice Potter Stewart alone, in his concurring opinion to the majority opinion in Jacobellis v. Ohio (1964), who made that comment. His actual words:

Quote:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.


But I agree that what he wrote is appliable to the topic of this thread.


(The film being discussed was the award winning French film "The Lovers" [1958], starring Jeanne Moreau and directed by Louis Malle.)
Steven Keyl
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Absolutely correct! My "quote" is how it is commonly misquoted and I did so again, though I never knew which actual film was being discussed. Thanks for the correction, Bob.
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Angelo Carbone
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About time I replied as this thread is all because John wants to use my input method. People have been saying they don't know the specifics so here it is.

John contacted me because it was suggested he contact me to see if he was treading on my toes with his app idea. I told him he was but we would not accept my answer.

Here are some replies based on his comments here...

Comparing old card moves such as double lift and palming, to new modern input methods is not a fair comparison. Those card moves are not only generic and open source but many many years old. iPhone magic is too new and niche.

John has listed several ways to code information inside an app so I really don't see the problem. If there was only ONE way to code info then I could understand being held back, however there are plenty ways to do so and if he is creative enough he could even try to come up with his own method. Unless it is too hard for some people I really can't answer that.

For the record John, I never demanded any residuals from you to use my input method as you state. That is a lie. In fact you were the one to suggest doing a deal with me. However you went back on your word saying any compensation you would give me would be "overly generous". So not only do you want to use my input method, you don't really want to pay for it because it is obvious and anyone could have thought of it. This is what you told me in the many messages you sent me.

No one is telling you to sit on your idea. You are free to make your idea a reality by choosing from the many ways to input info as you listed or better still create your own like I and others have.

I told you politely I didn't want you to use my method and for you to create your own. You said if you didn't create your own method you would use mine and that it has nothing to do with me. That doesn't make you a bad person? No one is threatening you. I simply said I don't want you to use my method and if you disrespect my decision and go behind my back then yes I will let the magic world know what you did. Is it really that HARD for you to come up with your own method? I mean for a guy who has "created some truly outstanding concepts" doesn't seem to be able to create some truly outstanding methods.

We are not talking about published printed material here where you just give a credit and be done with it. We are talking about a "product". So you wrote that you want any 'method' in any medium (DVDs, downloads, marketed effects) to be considered "general" options and not even reimburse those who created the initial methods. I remember your words you wrote to me "I would recognize you were the first to utilize it and offer compensation even though that is overly generous". So if you had your way you really wouldn't want to pay to use it.

"The main point worth discussing is whether the general tools of inputting information into a smartphone can be monopolized by the developers that put the methods to use first (which are, unfortunately, typically the cheesy concepts we associate with app magic, card revelations, etc.)"

Thank you for implying my app and other developer's apps are cheesy. Very disrespectful! So iPredict Pro, Magic SMS, MagicWebFX, Mental Killer which are all 'card revelations' and use unique input methods are "cheesy". Do you hear that Greg, Marc and Max? It seems Derren Brown, David Blaine, Dynamo and other customers love cheesy magic apps like mine. They must have poor taste. Heaven knows how they would react to non cheesy magic. How disrespectful!

So just because your "truly outstanding concept" of an app is not a card revelation then that makes it not cheesy?

"trying to claim a monopoly of any of the actions on that list, to me, is ridiculous, to the point of being laughable."

Ok let me explain why I am being so protective about my input method (as is Greg Rostami, Max Krause and Marc Kerstein with their input method who I have all discussed this issue with)...

I plan on one day allowing customizable predictions in my app so cards will not be the only possible revelation. Dates, countries, zodiac signs, celebrities are all open to being revealed. These have been discussed in the Facebook group by customers. Also one day I may want to release a different effect but still use my input method. If I were to allow others to use the method then I will be the one to be accused of stealing ideas if other identical apps get released before my apps. Also a lot of time, effort and money went into the development of my app back from 2010. You can't expect me to just let anyone use it at the drop of a hat for nothing? The fact that a spectator can seemingly do the dirty work for you and hands off is unique to me. It's my idea, I worked hard on it and you are darn right I will protect it from being misused and performed out of context in other apps. The fact that the preview SMS arrives on the lock screen before the spectator even reveals their thoughts is a strong subtlety and in context with the method. I am not claiming to have invented interaction with the screen or tapping. I am claiming originality for the structure, context, routine, justification, sequence of my input method. Its the whole part.

"I would have to argue that these two methods are simply the methods that these developers chose for their apps, not "their"methods."

Now that is absurd. So methods chosen by other magicians for other tricks are not really their methods because they just 'chose' them?

My developer said the passcode screen would not be suitable for John's app anyway because of the screen time out feature, unless he wants to copy even the simulated standby mode too. So how much more of my app does he want to borrow?

Forgive me if I come across a little harsh in my post but for someone who has been ripped off many times (Out of Order) I need to put my foot down and protect my ideas more.

For the last time, no one is stopping anyone from releasing an app. Just spend a little time and have patience and implement your own input method. It's not that hard John. Try it! Even my developer has come up with an input method for your app. Its not that hard Smile
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John Born
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Hi Angelo -

Thank you for your reply. No one is trying to rip you off. Creativity is a complete non-issue, and yes I already have several methods to achieve my effect. You absolutely have the right to protect the concept of having information secretly input to have customized text etc. happen for you specific reveals, and wish you the best as you continue to develop that as you work towards more customization.

With that said, you have not convinced me that using the passcode lockscreen as a tool is something that should be exclusive to you or anyone else. If you consider the rest of the list I made as general tool options for developers, how could you possibly think the passcode lockscreen does not fit as well? It is a core function of the phone. I understand you don't want others doing what you are doing. However, that does not give you the right to deny others when part of the method someone chose is similar to part of the method you chose. It took literally minutes to have the method work out independently to achieve my effect. Was it a stroke of genius on my behalf to duplicate it? Not at all. It was obvious what would provide a simple method that was direct and user friendly, just as it is going to be obvious for many many others going down the same path in creating methods for their unique effects for smartphones. As you mentioned, I am not the first person having to contact you about this, and my only response was "Of course I'm not." You decided to use the double-undercut of card magic - what did you expect? And, in the end, with whatever customization for your text effect that would be produced, my app would not be competing with yours whatsoever.

Yes, offering you the same cut I would be getting in the sales of the app is completely overly generous. But I DID make that offer once it was clear you were extremely protective and ready to throw mud - Not because it was the right thing to do (because I do not feel you have the right to tell others no for such a basic concept), but rather I find it best to be collaborative, and if that is what it took to have the idea celebrated and promoted when released as opposed to arguing over petty method details as it is introduced, it is a no brainer for me as my energy is best spent moving forward. There is very little money in the magic app world (from talking with people almost no one is even making money on their designs), and making an offer to someone to save myself headaches is no problem for me. I simply want to make this idea a reality to use myself, and found that others were really excited to have access to it as well. I also had a competent developer that loved the idea and would make it with no investment from my end in order to split sales, which is a an easy decision when compared to trying to find a developer and woking out a deal to make the app, being there each step of the way, having to follow up with him as IOS updates over time, etc.

My point of recognizing most card revelations as cheesy is simply a matter of opinion. Where I am concerned when other alternatives are held back because people think they can be magic police over limited input methods. I am sorry you have been ripped off. I know the feeling as have experienced the same with every one of my products. I have a lot of respect for you, just think in this circumstance you may need to consider the logical argument that you chose a general input method to achieve your effect.

JB
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"Comparing old card moves such as double lift and palming, to new modern input methods is not a fair comparison"

Actually it is although difference the principle remains the same. It's kind a like if somebody came up with the new 3 fly effect and improved shell for a coin. do they have the right to manufacturing of course why not. Of all the three fly tricks that are out there are people giving credit to Jonathan Townsend or Chris Kenner. And if so are they being ripped off. I don't think so. Also if a painter invents a new type of paint brush with different bristles allow him to do different techniques and somebody else comes up with the same thing I doubt that one can accuse the other one of stealing if both of these were dreamed up independently.

If you really want to get down to it if anybody should get compensated for anything for any kind of new ideas it should be Apple. Yes I know that sounds ridiculous but...this whole discussion is kind of ridiculous if you think about it. If John born came up with an independent idea then he has every right to make something of it and use it. There is no monopoly on cell phone.

The art of magic is for us all to build on and explore new techniques and new possibilities. it's been said here before that if you are a creator and you created something and if you are worried about somebody ripping you off or stealing part or all of your idea then you are best not to even market it. you are best not to tell anybody just keep it for yourself that will solve your problems.

John born your new app sounds really exciting and you have my full support.
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It sounds like Angelo and others want all the benefits of real-world trade secrets and patents, without any of the responsibilities.

If it's protected as a trade secret, you have exclusive rights to use the method yourself, but you can't sell the method. You have to actually keep it secret.

If it passes muster to be protected as a patent, you can sell your invention with exclusivity for a limited time, and then the whole world owns your idea. You also have to publish the workings for all to see right at the start.

No system in the real world allows someone to sell a secret method while preventing others from using it for as long as they wish.
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Badger how can you say John's app sounds really exciting when you don't even know what the effect is and if it works for you?

John you say you have a lot of respect for me and yet you have no respect for my wishes so how is that showing respect? I don't think you do respect me and are just saying it to make yourself look good. If I asked a magician if I could use his method for one of my tricks and he said no, I would have to respect that decision and move on. I wouldn't throw my toys out of the pram and whine about it. I guess it just depends on how one has been raised and leads their life - to respect others and treat others like you want to be treated.

Let's say I am wrong and have no right to protect my ideas. That means anyone can use Greg Rostami's input method for iPredict Pro. Anyone can use Marc Kerstein's MagicWebFX input method. Anyone can use Max Krause's input method for Mental Killer. They/we have no right whatsoever and anyone can use them as they are not protected and are obvious methods that anyone can independently think of. I don't think they would be happy. In fact they wouldn't be happy as I have discussed this with them. So we are all wrong?

Do you know who understands us? Only other creators. Release a product. Be ripped off. Have ideas stolen or used without permission and only them can you walk in our shoes and feel our anger.

Tim I cannot believe what I am reading. So anyone who does not protect their ideas can expect and accept others to use their ideas without any problem? Did I just read that right? Do you think every magic trick released by a magician has had its method protected by law? No way. If that was the only way there would be so little new magic out there. It doesn't work like that in the magic world which is small and I wish people would stop comparing it to big companies or retailers who have the dollars to copyright/patent their magic.

It should be all about respect. There never was a brotherhood in this magic world. I am so angry right now I better stop. Its no wonder why magicians want to stop creating with this sort of mentality out there and then who loses out?

Why do I bother?
The Gift: Trick of the Year 2017
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