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But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument.

It is over a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred.

But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it.

...

When the Chief Justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit.

Justice O'Connor stopped me within one minute of my opening. The history was bothering her.

justice o'connor: Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.

She was quite willing to concede "that this flies directly in the face of what the framers had in mind." But my response again and again was to emphasize limits on Congress's power.

mr. lessig: Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.

There were two points in this argument when I should have seen where the Court was going. The first was a question by Justice Kennedy, who observed,

justice kennedy: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.

Here follows my clear mistake. Like a professor correcting a student, I answered,

mr. lessig: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.

actually, most senior techs here handle these requests whenever they come in. we're all cleared to handle sensitive data.

What I was talking about wouldn't be classified as sensitive it would be secret and probably would run on it's own machine but maybe your right and your elected officials really are as stupid as you say they are. But then that really says something about Denmark doesn't it?

Well, I'm Danish, i follow the news and specifically politics regarding IT. You know, being a normal, concerned citizen in the country i reside in

So you support DNS filtering? and you support your Politicians even though they are stupid? On the one hand it sounds like you are proud of your country and on the other hand it sounds like you think your government is incompetent and thus hate your country. You should like the Danish version of an American redneck.

oh, and groups like http://www.sslug.dk/ often do pop-quiz our politicians about certain issues, usually before elections

As I told your friend, who also used the phase 'Machiavellian surveillance' a few messages down, politicians tell people what they want to hear not the truth. If they told the truth they would never get elected in the first place.

but this is Denmark we're talking about.

Yes.. Yes it is... land of the free, waffles and internet censorship... To protect the children!

Denmark's biggest Internet service provider TDC A/S launched a DNS-based child pornography filter on 18 October 2005 in cooperation with the state police department and Save the Children, a charity organization. Since then, all major providers have joined and as of May 2006, 98% of the Danish Internet users are restricted by the filter.[47] The filter caused some controversy in March 2006, when a legal sex site named Bizar.dk was caught in the filter, sparking discussion about the reliability, accuracy and credibility of the filter.[48] Also, as of 18 October 2005, TDC A/S has blocked access to AllOfMP3.com, a popular MP3 download site, through DNS filtering.[49] 4 February 2008 a Danish court has ordered the Danish ISP Tele2 to shutdown access to the filesharing site thepiratebay.org for all its Danish users.[50]

O ok.. sure and you're the senior tech at this ISP and have top level clearance then right? O and you have access to every room in the joint too I'm sure?

Nope, I'm not THE senior tech, but I am one of them, and i DO have root on all our equipment.

So I also take it that the Police and/or government come to you with there high profile requests then

actually, most senior techs here handle these requests whenever they come in. we're all cleared to handle sensitive data.

How the hell do you know anything about what the people in the Danish government know? Are you a member of the Danish government or have you given them a pop-quiz?

Well, I'm Danish, i follow the news and specifically politics regarding IT.
You know, being a normal, concerned citizen in the country i reside in?
oh, and groups like http://www.sslug.dk/ often do pop-quiz our politicians about certain issues, usually before elections

Tinfoil hat.. o that's funny... sure I'm batshit crazy...

I wouldn't know, but you don't seem to know too much about Denmark, while insinuating Machiavellian surveillance schemes here.

Yup I'm the one out in LA LA land... but hey maybe you think that this all is just a US problem. That's cool, just don't call me names when I just pulled three articles out of my ass in 10 seconds and all you have is your goldleef-hat and a box of Kleenex...

Your ass seem to contain lots of articles about US surveillance, but this is Denmark we're talking about.
I'm most certainly not paid enough for a gold leaf hat, but unless someone made an extra dimension for your room 641A, I don't need one either.

Lessig's book lists four reasons for piracy, and how each could affect sales. It's an excellent read.

I googled for it and it's at http://www.sslug.dk/~chlor/lessig/freeculture/ but it's kinda long. Can you list what the 4 reasons are, or at least on which of the 200 pages we can find those 4 reasons?

From Lawrence Lessig's Free Culture (I've abridged the quote drastically)

File sharers share different kinds of content. We can divide these different kinds into four types.

There are some who use sharing networks as substitutes for purchasing content.

There are some who use sharing networks to sample music before purchasing it.

There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high.

Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away.

From the perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful.

Type B (try before you buy) can do nothing but increase sales, and every study not financed by the recording industry has concluded that "pirates" spend far mor of their money on music than non-pirates.

Lessig's book is available online under a GPL license, as well as in bookstores. Oddly, being able to legally "pirate" it hasn't kept it out of the bookstores, despite the atti-pirates' bleating that if you can get it for free you won't pay for it.

Only thieves have the mindset "if I can get it for free I won't buy it". Most people have scruples. Unfortunately the people in the RIAA labels don't.

These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 "circles" of creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come together twice a year, in the largest public gathering in the country, to exchange and sell them. This market exists in parallel to the mainstream commercial manga market. In some ways, it obviously competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. ...

Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga flourish.

As other posters have also pointed out, the "[...] which achieves the protection objective" can be read as though achievement of a protection objective is needed for "technological measures" to be called "effective". However, in the same sentence we can read that even access control or protection by scrambling (which is known not to achieve this objective) is explicitly mentioned as something that can be done to make "technological measures" "effective".

The InfoSoc directive is full of such contradictions. It looks like opposing sides in the legislative process have tried to make as many amendments as possible without thinking about a coherent result.

I worked a lot with this directive when it was about to be implemented into danish law. At that time the only people interested in publicly discussing it were Linux entusiasts, so I discussed it on one of the SSLUG mailing lists.

At one time I even used these contradictions in the directive to propose an amendment (in danish) to the proposed law that would fully implement the directive, but still make it legal to circumvent DRM.

What happened after I posted this was actually quite interesting. Until then our government had been against any exceptions, but early in the morning on the first working day after this was posted, the government released a statement saying something like: "The law has to be interpreted so that it is legal to circumvent DRM, if needed to access a lawfully purchased work on for example a Linux computer."

Although the law text itself was not changed because of this, an explanatory note (important for when the courts have to interpret the law) was attached. When Sweden some time later implemented the directive into their local law, a similar note was incorporated into their law text.

As other posters have also pointed out, the "[...] which achieves the protection objective" can be read as though achievement of a protection objective is needed for "technological measures" to be called "effective". However, in the same sentence we can read that even access control or protection by scrambling (which is known not to achieve this objective) is explicitly mentioned as something that can be done to make "technological measures" "effective".

The InfoSoc directive is full of such contradictions. It looks like opposing sides in the legislative process have tried to make as many amendments as possible without thinking about a coherent result.

I worked a lot with this directive when it was about to be implemented into danish law. At that time the only people interested in publicly discussing it were Linux entusiasts, so I discussed it on one of the SSLUG mailing lists.

At one time I even used these contradictions in the directive to propose an amendment (in danish) to the proposed law that would fully implement the directive, but still make it legal to circumvent DRM.

What happened after I posted this was actually quite interesting. Until then our government had been against any exceptions, but early in the morning on the first working day after this was posted, the government released a statement saying something like: "The law has to be interpreted so that it is legal to circumvent DRM, if needed to access a lawfully purchased work on for example a Linux computer."

Although the law text itself was not changed because of this, an explanatory note (important for when the courts have to interpret the law) was attached. When Sweden some time later implemented the directive into their local law, a similar note was incorporated into their law text.

As other posters have also pointed out, the "[...] which achieves the protection objective" can be read as though achievement of a protection objective is needed for "technological measures" to be called "effective". However, in the same sentence we can read that even access control or protection by scrambling (which is known not to achieve this objective) is explicitly mentioned as something that can be done to make "technological measures" "effective".

The InfoSoc directive is full of such contradictions. It looks like opposing sides in the legislative process have tried to make as many amendments as possible without thinking about a coherent result.

I worked a lot with this directive when it was about to be implemented into danish law. At that time the only people interested in publicly discussing it were Linux entusiasts, so I discussed it on one of the SSLUG mailing lists.

At one time I even used these contradictions in the directive to propose an amendment (in danish) to the proposed law that would fully implement the directive, but still make it legal to circumvent DRM.

What happened after I posted this was actually quite interesting. Until then our government had been against any exceptions, but early in the morning on the first working day after this was posted, the government released a statement saying something like: "The law has to be interpreted so that it is legal to circumvent DRM, if needed to access a lawfully purchased work on for example a Linux computer."

Although the law text itself was not changed because of this, an explanatory note (important for when the courts have to interpret the law) was attached. When Sweden some time later implemented the directive into their local law, a similar note was incorporated into their law text.

Now that the Supreme Court has set "active inducement" as the standard for liability, the RIAA is trying to establish a paper trail to use in subsequent trials against these services.

Yeah, that's what I was thinking as well. "We got one of you for this, now we're going to try to prove that everyone else is guilty of it." To be fair though, Grokster were a lot more actively promoting infringement — I'm not convinced any of these other companies are in real danger. Now that the Supreme Court has set a standard, all companies need to do is avoid it.

The overwhelming influence people can have with money is just horrible though — I can never remove the Jesse Jordan case from my memory.

(Incidentally, that link is to an online version of Lessig's Free Culture, which I'd recommend to anyone with even a passing interest in these disputes over copyright, even though probably not directly applicable here.)

claimed the radical elements of the community could damage the reputation of open source software

Could? Looks a little too late for "could".
Picture
Picture
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Furry Teeth
RTFM
GOAT
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Could damage the reputation of open source???
LOL

...is that these kinds of directives are impossible to fight. Look at the date for the InfoSoc directive. 2001. Yes, four years ago. Yet we have no choice but to implement it, except for a highly theoretical veto right (from not being in the EU, only EUs lap dog).

What can public pressure do? Implemented by 2005. Uproar by 2006. New proposal to EU in 2008. New directive in 2010. New law in 2015. Try keeping the public's attention for ten years while playing the ladder game with the corporations. They'll slide you right back to square one when people aren't looking.

When the directive was about to be implemented in Denmark, I spent some time studying the directive and the proposed danish law change. After I proposed an amendment to the proposed law change (in danish). There was some critique of this, and after some discussion I sent out a revised proposal for an amendment to the proposed law change (in danish).

My revised proposal fully implemented the directive, but would make it legal to:

1. Talk about how copy protections can be broken.
2. Publicize the source code for programs that break copy protections.
3. Compile and use programs that break copy protections, if done non-commercially and the purpose is either:
   • Fair use of the protected contents.
   • Viewing the protected contents on computer systems not having an approved viewer, if such viewing would be legal on other computer systems.
   • Getting access to contents where the copyright protection has expired.

I think this proposal worried our government, because the day after I sent out the revised proposal for an amendment to the proposed law change, our government sent out a press release saying "The law has to be interpreted so that it is legal to circumvent copy protections that makes it hard to use a legally purchased protected works on for example a Linux computer".

The law text itself was not changed, but the law notes that tell how the law must be interpreted was. The result is that I now legally can view DVDs on my PC, and that would not have been legal without this public pressure.

If you are interested in trying to change the norwegian implementation of InfoSoc, I think you will find a lot of inspiration in the two proposed amendments I have linked to above.

...is that these kinds of directives are impossible to fight. Look at the date for the InfoSoc directive. 2001. Yes, four years ago. Yet we have no choice but to implement it, except for a highly theoretical veto right (from not being in the EU, only EUs lap dog).

What can public pressure do? Implemented by 2005. Uproar by 2006. New proposal to EU in 2008. New directive in 2010. New law in 2015. Try keeping the public's attention for ten years while playing the ladder game with the corporations. They'll slide you right back to square one when people aren't looking.

When the directive was about to be implemented in Denmark, I spent some time studying the directive and the proposed danish law change. After I proposed an amendment to the proposed law change (in danish). There was some critique of this, and after some discussion I sent out a revised proposal for an amendment to the proposed law change (in danish).

My revised proposal fully implemented the directive, but would make it legal to:

1. Talk about how copy protections can be broken.
2. Publicize the source code for programs that break copy protections.
3. Compile and use programs that break copy protections, if done non-commercially and the purpose is either:
   • Fair use of the protected contents.
   • Viewing the protected contents on computer systems not having an approved viewer, if such viewing would be legal on other computer systems.
   • Getting access to contents where the copyright protection has expired.

I think this proposal worried our government, because the day after I sent out the revised proposal for an amendment to the proposed law change, our government sent out a press release saying "The law has to be interpreted so that it is legal to circumvent copy protections that makes it hard to use a legally purchased protected works on for example a Linux computer".

The law text itself was not changed, but the law notes that tell how the law must be interpreted was. The result is that I now legally can view DVDs on my PC, and that would not have been legal without this public pressure.

If you are interested in trying to change the norwegian implementation of InfoSoc, I think you will find a lot of inspiration in the two proposed amendments I have linked to above.

In danish:
http://tyge.sslug.dk/knoppix/

When we put source code into the Open Source community, the code we are putting in there, we have clearly patent clearence for in the sense we know what we put out in the Open Source community so we don't claim own patents on anyway. Our patents clearence process makes sure we are not infringing the patents of anybody else. We are doing it with our proprietary code, so we are fine.

What is wrong about this distribution, is basically the millions of lines of code that we never have seen. We don't know if there are any patent infringments [in this code] with somebody we don't know. We don't want to take the risk of being sued for a patent infringement. That is why we don't do distributions, and that's why we have distributors. Because distributors are not so much exposed [to being sued] as we are. So that's the basic deal as I understand it.

Karl-Heinz Strassemeyer, IBM



Excerpt from an interview by SSLUG, Denmark

The most important thing about debian isn't necessarily that apt is cool... it's that the package managers put a lot of work into producing and making sure only good packages get accepted. Like you said, the packages aren't hostile to people making changes to conf files and they try to provide as much documentation as possible about how they've set things up. Apt-on-redhat won't fix that unless you pull in all of the packages from debian package managers, at which point you've got debian anyway.

As for installing a good system with reasonable defaults... this might not be quite as well known, but try this 1) burn knoppix, 2) boot up into knoppix (notice that your hardware is autodetected just like redhat/suse/whatever), 3) run knx-hdinstall, 4) click through 19 simple dialogs, and voila, you have debian installed on your hard drive with hardware detected and tons of reasonable defaults picked. The only place it's semi-lacking i that it doesn't have a TON of things installed (but it does have quite a lot as anyone who's played with knoppix can tell you) since it's just once CD for god's sake (eg. it's missing tcsh), but as stated, it's trivial to do "apt-get install tcsh" to get whatever else you want.

I must say that I am a bit confused. Not long time ago our "beloved" government (I even voted for them) were in favor of software patents and the use of industry standard software (read Microsoft) ... Open Source has been discussed in the Danish parlament for some years, even before the current government (2 years old in a month). The former government promised to change all state-institutions to OSS, but still nothing has happened. SSLUG (Skane Sjaelland Linux User Group, biggest LUG in Denmark) have had some discussions on this topic without much succes ... but saying this, I am looking forward to a initiative from our very quiet IT-minister. The report is from the Board of Technology, that have many good and forgotten discussions.

Hear hear!!
Second that! I listened to RMS in india (the recording, not me...but that would have been cool), and The Man is brilliant. It is also funny, especially the idiots that doesn't get it...lol, anyhow, here is a link I found with the speech in ogg.

I'm not aware of any case where Microsoft or any other big company is trying to shutdown an Open Source project using patent laws.

• 
  Dr. Karl-Heinz Strassemeyer said ...
  IBM does not sell their own linux distribution.
  IBM does not ship Open Source software with patents.
  IBM only submits patches to the Linux kernel after they are cleared for any patents.
  IBM does not do distributions because the risk of infringing a patent that way is too high.
  IBM does not use Linux in embedded systems because the kernel could contain hidden patents.
  

Skåne Sjælland Linux User Group in eastern Denmark already has a similar project.
Its called "Friheden til..." - "The Freedom to...".

Currently, it consists of 12 books on different topics. Thats 1541 pages all together.

Find it here.

The only drawback for the international audience is that it is written in danish.

If you have a 350 Watt PS, it is capable of producing 350 Watts. It is not obligated to produce this much.

Just as you aren't using all 185 horsepower in your car when you are sitting idle at a red light, or even when crusing at 40 mph, you aren't using your full rated power in your computer. You are never going to have a computer that uses the full rated power of the PS, unless you've added tons of extra components.

A more realistic figure for a computer's power consumption is somewhere in the 50-200 Watt range.

This page has some actual measurements of power usage which suggests that Pentium class machines (including disk) run at between 50-100 Watts, and a monitor will take another 50-70 Watts.

So yes, it is an order of magnitude more than a low-power consumption machine, but your assumptions are overly simplistic.

Some idiot sniffing the password from a telnet session

SSH is encrypted, and can only be attacked via a man-in-the-middle attack, and any good ssh client will notice this and whine.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

The EU is preparing changes for the patent laws. If you are a European, please help us inform the citizens. To help inform we intend to make a free film explaining the problems. The film will be available via the Internet. Read more about this initiative. As we have so far been focused on turning the Danish oppinion most of our stuff is in Danish. We need your help to change this.

For an english talk on software patents listen to RMS in India.

Eurolinux also have some stuff in english.

One example is: WO0145062. You can find a lot more. Just search http://ep.espacenet.com for the simple word 'Internet'. Then look at the patents starting with WO.

We intend to stop the software patents in Europe. Please help us: SSLUG

One example is: WO0145062. You can find a lot more. Just search http://ep.espacenet.com for the simple word 'Internet'. Then look at the patents starting with WO.

We intend to stop the software patents in Europe. Please help us: SSLUG

You can't do a search for prior art - you'll have to search the entire internet (and more). When searching for prior art, the Patent Office only uses their own database! At least that is what is the practice in Denmark.

Patent's are supposed to give other developers access to your inventions, but have you tried to read a patentdescription? Patents are written in a languange which "only" patent lawyers understand, therefore the average developer will not be able to benefit from the patent databases - they simply don't understand it.

Patents mostly don't benefit the small companies because the big companies often will have a many more patents, which you maybe are using without knowing it. Furthermore big companies has much more money and (probably) better lawyers I would also like to argue about whether a patent on "window display system" would have been good for innovation. What if the World Wide Web, the graphic click-able, interface of the Internet as we know it had been patented? im Berners-Lee who invented it, has said: "If the technology had been proprietary it would never have taken off. The decision to make the web an open system was necessary in order for it to become universal".

For further information, take a look at these links:
The EuroLinux File on Software Patents

Even though software patents mostly isn't possible in Europe, many softwarepatents exists anyway - take a look here and I bet you will be shaking your head: European Software Patent Horror Gallery

SSLUG (Skåne Sjælland Linux User Group) has written a good article here: Software patents - No thanks!

Freepatents.org

Greetings Joergen

If you would like to know more about (software) patents (and you ought to if you if you are in the software business and live in Europe), here is some links:

SSLUG (Skåne Sjælland Linux User Group) has created an article called "Software patents - No thanks!". You can find it here.
"The EuroLinux File on Software Patents" also has a lot of information right here


Greetings Joergen

The link disappeared, sorry.
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