Questions for DoJ IP Attorneys Asked and Answered

These answers are from the lawyers in the U.S. DoJ's Computer Crime and Intellectual Property Section (CCIPS) -- the people who prosecute criminal file-sharing cases. Michael O'Leary, Deputy Chief for Intellectual Property at the DoJ, submitted the answers, but other lawyers in the section worked with him to write them, all under the ground rules laid out in our 'Meet the DoJ's 'Anti-Piracy' Lawyers post last week.

INTRODUCTORY COMMENTS

Thank you all for posing such interesting questions. We have answered nine of the ten submitted questions below, but we are not in a position to answer number ten because it is specifically related to a civil case (that does not involve the Department of Justice). However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

1) What services for an open source copyright holder - by bwt
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that do what the Constitution intended.

Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that wielded against drug smugglers and violent criminals.

Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?

What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?

O'Leary:
Thanks for your question. The issues you raise are ones that we confront from time to time and we welcome the chance to address them here on Slashdot. In reviewing your question, and many that follow, it appears that some Slashdot readers feel that the Department of Justice only protects the IP rights of big corporations. That simply isn t the case. There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products. But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.

In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

The prosecutions we undertake do in fact benefit real people. If you look at the people and organizations who have been victimized by the defendants we prosecute, you will see that we enforce the law without regard to who the victims may be and we have protected the rights of victim companies of all sizes.

In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.

In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations. As for reporting potential criminal infringement to law enforcement, the best way to do that is to contact your local FBI office.

2) This won't be taken seriously, but... - by Maul
.... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.

Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.

Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?

O'Leary:
Before answering your underlying question, which we do take seriously, let me address what has become a common misconception. The recent cases involving college students were civil suits brought by private parties, such as the Recording Industry Association of America (RIAA). The Department of Justice is not a party to these suits. We enforce our federal intellectual property laws through criminal prosecution, not through civil suits.

Your question argues that the current sentencing structure for criminal intellectual property crimes is too severe and is based upon damage amounts that cannot be supported. First, note that the federal sentencing structure is established by Congress and the United States Sentencing Commission. As federal prosecutors, we work within these guidelines. Second, the sentencing guidelines reflect the serious harm that is caused by piracy. In our answer to the first question above, we gave just one example of a small developer who has been harmed by piracy. That situation is not unique. The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.

By statute, a person convicted of one felony count of copyright infringement faces up to 5 years in prison (or 3 years, if convicted under the NET Act when the piracy was not done for commercial advantage or private financial gain). However, there are a number of factors that determine the actual criminal sentence a defendant receives, including the volume and retail value of pirated material involved, whether the defendant uploaded material to the Internet, and whether the defendant had a leadership role in a larger criminal organization. Also, a defendant's sentence may be reduced if, for example, he had a minor role in the criminal operation, or he accepts responsibility for his illegal conduct.

The single biggest factor in determining a sentence under the U.S. Sentencing Guidelines is the infringement amount attributable to the defendant. While your question correctly notes this, please understand that neither industry nor the government has the ability to dictate this amount. In determining the amount of damage, the United States must provide evidence of the number and value of the copyrighted works infringed by the defendant to the Probation Office and the court prior to sentencing. The United States must provide evidence to support its position such as evidence of the value of the pirated works infringed by the defendant, the number of times the pirated works were reproduced or distributed, or, in some instances, the amount of money the defendant earned from his illegal activity. At the same time, the defendant may introduce evidence to establish what he believes is the appropriate valuation for sentencing purposes. Neither the U.S. Probation Office, which ultimately recommends a sentencing range to the court in what is known as a pre-sentence report, nor the sentencing judge is bound by the government's claimed damage amount. The government's recommendation for a particular sentence is subject to multiple checks and balances. It is not simply the by-product of numbers offered by industry. We have to support and defend our position in a court of law which is the way it should be.

Finally, while people convicted of intellectual property crimes do face serious consequences for their actions, they are not treated more severely than violent criminals such as rapists. The vast majority of prosecutions of violent criminals take place at the state and local level, not the federal level, which is where DOJ s jurisdiction lies. However, in those instances where there are federal violent crimes, the penalties are more severe than those imposed for copyright infringement. For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

3) Question regarding the DMCA and copyright terms - by rhadamanthus
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?

O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.

The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:

(a) are primarily designed to circumvent,

(b) are primarily marketed for use in circumventing, or

(c) have limited commercially significant purpose or use other than circumventing,

either one of the following:

(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or

(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).

The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).

The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020 (N.D.Cal. 2002)).

Your question deals with how the DMCA might affect works that have entered the public domain. As you know, copyright law grants copyright holders certain exclusive rights, such as the right to copy and distribute their work for a period of time. Currently, the length of the copyright term is the life of the author plus 70 years; for works made for hire, it is 95 years from first publication or 120 years from creation of the work (whichever comes first). After this term expires, works enter the public domain and are presumably available in some form that can be read, viewed, heard, etc., by the public.

While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

We have not encountered any criminal case that involved this specific issue. Indeed, we are not aware of a court case either civil or criminal that has addressed this issue directly (although the district court in the Remeirdes case - the 2600 magazine case - acknowledged this issue, but because it was not central to the case before it, the court declined to elaborate).

It is possible that the interplay between the DMCA and access to public domain works will be addressed through rule-making or legislation. The DMCA provides for a periodic review process by the Librarian of Congress, and the issue of circumvention of technological protections on public domain works was one of the issues raised in the most recent review session earlier this spring (See http://www.copyright.gov/1201/).

4) Going Native? - by Andy_R
Here in Britain, we recently shut down the governemental body that regulated our train services because they were tending to take the side of the small number of contact personnel at the train companies that they dealt with on a day to day basis rather than the side of the faceless multitiude of passengers who they only knew through a few angry mails.

Given that your department will (in the vast majority on cases) be working on behalf of a very very small number of copyright-holding organisations against potentially millions of nearly anonymous file sharers, how will you prevent this 'going native' phenomenon biasing your investigations in favour of people you having a close working relationship with, and how will you defend yourselves against the inevitable accusations that you have 'gone native' and are a 'private police force' for the copyright holders?

O'Leary:
You ask an excellent question: how do we, as federal prosecutors, ensure that we retain independent judgment throughout the prosecutorial process? The decision to bring any criminal prosecution is significant and has serious consequences. For this reason, although we work with victims frequently, we work diligently to preserve our independent prosecutorial decision-making authority.

As attorneys for the Department of Justice, our mission is to enforce the laws fully and fairly on behalf of the people of the United States. This is a responsibility we take very seriously. While we work with a wide range of victims, from large multi-national corporations to small mom and pop businesses, the ultimate responsibility for making prosecutorial decisions remains solely with us.

Throughout the criminal justice process, there are checks on how we exercise our authority, including the citizens of the grand jury (who can reject our allegations), judges (who can dismiss charges or rule evidence inadmissible), and ultimately the citizens on the trial jury (who can acquit the defendant). However, even though these checks and balances are in place, from our perspective, it is still our responsibility to maintain appropriate boundaries at all times.

As a result, we try always to exercise independent, unbiased prosecutorial judgment when reviewing cases referred to our office for prosecution. Although you may not hear about it, we frequently decide not to move forward with criminal charges even in instances where the victim wants us to do so. The public doesn't hear about the prosecutions that are declined, only those that go forward. The decision to prosecute or not is a decision based upon a full and independent evaluation of the facts, the evidence, and the law. By maintaining this standard, we work to preserve the integrity of the criminal justice process.

5) Background - by TrekkieGod
Given that as IP lawyers at CCIPS part of your responsibilities is not only enforcing current laws, but also "reviewing new policy proposals, legislation, or international agreements related to IP", I'd like to know something about your overall technical background.

A frequent gripe with the geeks here at Slashdot, myself included, is that apparently legislators are not sufficiently well informed to create IP laws, frequently proposing and enacting laws which either constrain individual rights in favor of protecting those of big corporations (like the DMCA), or are simply not effective, because they can never patch the frequently referred to "analog hole" which is always a required step for humans to get to the information.

Given that for ethical reasons, you may not give your honest opinion on said legislation since you are required to enforce them, I'd simply like to know if I can trust that you are sufficiently well-informed to give council on these ever emerging new IP legislations. Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones? Can you elaborate on what type of experience you feel helps to qualify you to truly understand the ramification of these legislations?

O'Leary:
Interesting question. While we are all lawyers at CCIPS, we come to our current positions from a wide range of backgrounds. We have attorneys who have policy and legislative experience. Other attorneys are former Assistant United States Attorneys with years of criminal trial experience. Others came from civil practice before joining the Criminal Division, and a number of us represented technology companies in private practice. Still others have substantial technical backgrounds apart from being lawyers. As a general rule, however, almost everyone in CCIPS is curious about technology and how it intersects with the law. Our interest in technology explains why so many of us are frequent Slashdot readers, and why working at CCIPS sparked our interest in the first place.

One of the biggest misconceptions we confront regularly is that because we are law enforcement we must be opposed to technological innovation. This is simply not the case. The benefits of technology are numerous. We support and enjoy them. Yet, just as law enforcement must conduct itself so as not to unduly limit innovation, so too must we respond when technology is misused for illegal purposes.

Because of our interest in technology and its effect on the laws we prosecute, the attorneys assigned to prosecute IP crimes spend time learning about new technologies as they are developed. This helps us not only keep pace with the latest innovations, but enhances our investigative and prosecutorial skills as well. As your question suggests, you can t determine how (or if) the law applies to technology unless you understand how the technology works. We learn a great deal about technology in the course of online investigations, many of which involve extremely sophisticated technology. We are also trained on an ongoing basis on various aspects of networks and technology in order to continue to develop and refine our skills. Finally, we draw upon the knowledge and perspective of technical experts from the investigative agencies as well as from the private sector.

All of these factors combine to give us a better perspective on the relationship between law and technology. We are frequently called upon to review and consider various legislative proposals. In instances where we are asked to comment on a proposal, we have the requisite technical and legal background necessary to provide a detailed and comprehensive analysis of the proposed legislation. We view providing this type of input as one of our core responsibilities, and we work very hard to stay in touch with emerging technologies for this very reason. Thanks for your question.

6) Terminology and newspeak - by kafka93
Given that from a legal standpoint (and, many would argue, an ethical one) there is a distinction between "copyright infringement"/IP violation and "theft", what views do you have on the regular and incorrect/misleading application of the latter term by such people as the RIAA and law enforcement? Such misuse of language seems disingenuous, and taints the arguments of those who might otherwise have valid points to make about the morality of misuse of intellectual property rights.

It seems that if there are ethical arguments against piracy and other forms of copyright misuse, those arguments can and should be made on their own merits without the introduction of psychological wordplay apparently designed to confuse the public and cloud the debate. Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?

O'Leary:
You're correct that words are important, in particular as they apply to characterizations of specific conduct. As you suggest, people with differing views on intellectual property enforcement should be careful not to overstate their case, nor should they do the opposite in an effort to minimize the effects of their conduct.

Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft.

As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

7) Fair Use - by El_Smack
I hear the term "Fair Use" bandied about all the time in these discussions. From a legal standpoint, does it exist? Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use? If I do, does making an "uncopy-able" product violate that right?

O'Leary:
Great question. The term fair use is frequently misunderstood, and with good reason. The short answer to your question is that fair use does exist. It is an important and longstanding aspect of our intellectual property rights regime. Fair use is a doctrine that holds that although copyright laws grant the creators of copyrighted works certain exclusive rights in their works, the law must simultaneously allow citizens to engage in a degree of copying (or other conduct that would otherwise be infringing in the absence of a fair use doctrine) to allow for such things as comment, criticism, scholarship, and news reporting.

The doctrine of fair use was originally adopted by judges ruling in early copyright cases. Ultimately, Congress incorporated the doctrine into the Copyright Act of 1976, where fair use is now codified at Section 107 of Title 17 of the U.S. Code. In creating section 107, Congress listed four factors to be considered in determining whether a use is fair or not:

(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

These factors are essentially the same factors that had been used over the years by judges, and Congress's stated intent was to preserve the fair use doctrine as it had evolved. However, as many courts have pointed out over the years, whether something constitutes fair use is very fact-specific. It is difficult to craft a clear, bright-line rule that explains which particular uses of a work are fair use and which are infringement. In short, the exact parameters of fair use are often determined based on the facts of specific cases.

So yes, fair use does exist. Does it allow for some uses of copyrighted works that would otherwise be infringing in the absence of a fair use doctrine? Yes. Does fair use give a user a blanket license to infringe copyrighted works with impunity? No.

Fair use is among the many factors that prosecutors consider when determining whether or not to bring criminal charges. Having said that, however, fair use is not typically at issue in the cases we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

8) distinctions - by newsdee
Is a distinction made between different levels of IP infringement?

I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.

However, this question has two assumptions:

- The student would not use the software if it was not available (i.e. it is not a lost sale)

- Both activities are infringing (i.e. this question is not seeking to justify the first case)

I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).

O'Leary:
Yes, there are distinctions made between different levels of infringement. Perhaps the most significant distinction is the difference between civil and criminal infringement. Historically, the vast majority of disputes about intellectual property rights enforcement have been dealt with in civil lawsuits, with the criminal law dealing with only a narrow subset of activity. Although there has been increased emphasis on criminal prosecution in recent years, it is still the case that most intellectual property enforcement is civil. The criminal copyright statutes don't allow anyone to be prosecuted unless he infringed a copy willfully, which is the most difficult type of intent to prove. The civil statutes, on the other hand, address infringement even if it was negligent or unintentional. Because we focus on the criminal IP laws, I will answer your question from that perspective.

There are two levels of criminal violations within the criminal copyright code. There are misdemeanors, which carry a prison term of one year or less. And there are felonies, which carry prison sentences of over one year (more on this below).

In general terms, infringement becomes a criminal matter (as opposed to civil) when it reaches a certain magnitude and when the conduct is willful. Within the criminal copyright statutes (17 U.S.C. sec. 506 and 18 U.S.C. sec. 2319) there are thresholds which must be met to trigger potential criminal sanctions. Simply put, these thresholds deal with the quantity and value of the works that are infringed.

Your question talks about the blatant thief who makes money out of selling copied software. This highlights another important area within the criminal law. The criminal statutes make a distinction between for-profit and not-for-profit piracy. Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products. In those instances, defendants will be subject to the 5 year penalty.

As we discussed earlier, there are a number of variables that determine a defendant s sentence in any particular case. However, these are the general distinctions made among various types of conduct which would be considered criminal in nature.

Finally, your question references cases being brought by the RIAA. As we've noted above, the cases filed by the RIAA are private civil actions which do not involve the Department of Justice. Also, you referenced the "beyond a reasonable doubt" standard within your question. In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

9) "... under penalty of perjury ..." - by OWJones
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis mine).

Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since

1. It was an mp3.
2. It did have the name of an RIAA-represented artist in the title, and
3. It was at a university.

If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?

I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.

O'Leary:
Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.

Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time.

10) Daniel Peng's "MiniNapster" - by Pxtl
What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?

O'Leary:
The litigation involving Daniel Peng was a civil matter between private parties. I don't know any more about the case than what has appeared in the public press and other media. Therefore, as I mentioned at the outset, we simply cannot comment. However, as promised, we answered two additional questions which were not submitted to us by Slashdot moderators to make up for not answering this one.

11) Copy protection? - By Jucius Maximus
I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?

O'Leary:
Copyright owners have indeed implemented a variety of methods for deterring unauthorized copying or counterfeiting of their works. Software makers in particular often apply very elaborate authentication features to the packaging and media for their software in order to distinguish genuine copies from counterfeits.

In our experience, it appears that many of these methods have been effective at discouraging infringement and counterfeiting. For example, the use of unique authentication codes or serial numbers seems to have helped discourage some copying of software. The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs. And the advanced authentication methods used on software packaging (like holograms, watermarks, and edge-to-edge printing) have made the task of manufacturing counterfeits more difficult. In fact, some counterfeiters appear to have given up trying to beat the software makers at the authentication game, and instead now simply try to steal genuine packaging materials to package their counterfeit discs.
Have these copy-protection or authentication features eliminated infringement and counterfeiting? No, but they have had a deterrent effect.

12) Foreign Agencies - By mitd
As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US? Specifically Canada but also internationally in general.

O'Leary:
Great question. For too long, people have believed that geographic boundaries shield them from the consequences of piracy. Over the past few years, we have been working to change that belief. The Department recognizes that in order to deal with piracy effectively, we must respond globally. This is true regarding both online piracy and traditional hard goods piracy cases.

CCIPS has made international enforcement a priority. We have a number of tools, both formal and informal, for working internationally, including Mutual Legal Assistance Treaty Requests and Letters Rogatory. We are also able to employ the network of legal attaches stationed at U.S. Embassies around the world to help strengthen relationships with our foreign law enforcement counterparts and help build strong international cases. In general, international cooperation on intellectual property cases is becoming more effective each year. We do work on intellectual property cases with Canada and will continue to do so in the future. We are also currently working on cases in over a half a dozen other foreign nations. Over the past two years we have worked closely with investigators and prosecutors overseas in order to strengthen our own domestic prosecutions as well as support foreign prosecutions. We have traveled overseas to assist our foreign counter-parts and have welcomed foreign agents to the U.S. to learn more about evidence we might have to support their prosecutions.

Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.

Although working internationally is time and resource intensive, it is essential to effective enforcement of intellectual property rights, and we are committed to addressing piracy wherever it occurs.

Addendum:

Thanks again to everyone for submitting your questions. There were some great ones, and we regret that we cannot answer all of them. Thanks also to Slashdot for the opportunity to discuss these important issues. We look forward to additional opportunities to work with members of the online community to ensure that intellectual property rights are sufficiently protected.

Comments

willful infringement.

[sbuckhopper]

In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations.

Guess he hasn't been keeping up with SCO's new licensing options...

Re:willful infringement.

[kilonad]

Or maybe SCO hasn't tried reporting any individuals to law enforcement for infringement. SCO's just running their mouth off to IBM and the press, but so far no subpoenas have been issued for the developers who allegedly slipped in their code. As of yet, SCO vs IBM is a civil case anyway.

Re:willful infringement.

[Grey Fox LSU]

Unfortunatly, SCO's case aginst IBM is a civil case, not criminal

Re:willful infringement.

[Anonymous Coward]

I think the original poster was thinking the other way round. The DOJ should be investigating SCO's criminal extortion posing as a "licensing" scheme

Re:willful infringement.

[sbuckhopper]

I think the original poster was thinking the other way round. The DOJ should be investigating SCO's criminal extortion posing as a "licensing" scheme

You are correct. SCO's new license agreement for Linux violates the GPL...

Re:willful infringement.

[anthony_dipierro]

SCO's new license agreement for Linux violates the GPL...

True, but I wouldn't say that SCO's infringement is willful, which is a requirement for criminal prosecution.

Re:willful infringement.

[frost22]

Unfortunatly, SCO's case against IBM is a civil case, not criminal

But the public's case against SCO should be a criominal, not civil

Re:willful infringement.

[dnoyeb]

I think he was again making the distinction between criminal and civil matters.

Re:willful infringement.

[Stephen Samuel]

Methinks the reference was to the idea of OS copyright holders asking the DOJ to rip SCO a new, um, PR policy.

Re:willful infringement.

[gpw213]

You are correct. SCO's new license agreement for Linux violates the GPL...

Actually, people are assuming that SCO's new license agreement will violate the GPL. While this is most likely correct, they have not yet actually announced the terms of their "license" for linux, and therefore any discussion of lawsuits or prosecution is a bit premature...

Re:willful infringement.

[Darth]

the willfulness of it will probably be strengthened when it goes to court. If the case falls as a result of a judge determining it's a waste of time and is frivolous, then i would think there's a very strong case for SCO's behaviour being willful.

I doubt any criminal action against SCO will occur before the resolution of their accusations against IBM, though. I also kinda doubt the SEC is going to pursue them until after the case is resolved.
(but i expect the SEC will tear everyone who sold stock during the run-up to trial a new asshole once the trial is over)

Re:willful infringement.

[theedge318]

Well speaking of OSes ... I think everyone should read the following report to the Library of Conrgress (it was a link on one of the above references)

Anyways ... it makes 2 claims about DVDs. Saying that the Copyright law forbids using a copyrighted medium from dictating a hardware platform. But that is exactly what the DVD-CCA does. It sites Alcatel USA vs. DGI Technolgies Which would basically justify all of the Linux DVD players out there.

So that combined with the fact that DVD region encoding restricts the free flow of global trade, basically blows a big hole in the DRM abilities of the DVD format. Although, I just found out that Region Encoding isn't so much about pricing equity, so much as allowing DVDs to be release in the US, before the movies have even hit the theaters elsewhere in the world. Although that said ... there should be no reason that a Region 1 DVD player can't play all other DVD regions (unless it had something to do with restricting the balanced flow of the DVDs as a commodity.)

Re:willful infringement.

[anthony_dipierro]

I fail to see how SCO's civil case is related in any way to its violation of the GPL. The SCO case is about breach of contract, not copyright infringement.

Re:willful infringement.

[Darth]

because evidence brought out in the SCO case can be used against it when it is a matter of public record.

With respect to proving willful intent to violate copyright, SCO having no case in it's contract dispute will go a long way to showing that their attempt to apply a binary only license to works protected under the GPL is a willful infringement of the GPL.

Re:willful infringement.

[anthony_dipierro]

because evidence brought out in the SCO case can be used against it when it is a matter of public record.

Actually I'm not so sure about that. After all, SCO has a right against self-incrimination in a criminal case.

With respect to proving willful intent to violate copyright, SCO having no case in it's contract dispute will go a long way to showing that their attempt to apply a binary only license to works protected under the GPL is a willful infringement of the GPL.

It's not illegal to apply a binary-only license to works protected under the GPL. What is illegal is creation of a derivative work without licensing that derivative work under the GPL. Now once SCO claims that they did not license the derivative work under the GPL in civil court, they will be estopped from claiming otherwise in criminal court. But it seems to me that they could claim that there is reasonable doubt as to whether or not they failed to license the derivative work willfully. In fact, the mere question of whether or not they did in fact license the derivative work under the GPL is a legal question which is much in dispute. It seems to me to be a difficult if not impossible case to win.

Re:willful infringement.

[rifter]

Actually, people are assuming that SCO's new license agreement will violate the GPL. While this is most likely correct, they have not yet actually announced the terms of their "license" for linux, and therefore any discussion of lawsuits or prosecution is a bit premature...

No, their license agreement, by its very existence, violates the GPL. You cannot take GPL software and add additional license requirements. Likewise if any patented material is not released under a royalty-free license it cannot be released under the GPL. What SCO is doing is illegal and violates copyright law. Of course some slashdotter will pipe up and say that the GPL has not been tested in court; well, it is about to be very soon.

Re:willful infringement.

[Darth]

Actually I'm not so sure about that. After all, SCO has a right against self-incrimination in a criminal case.

they have a right against self-incrimination with respect to testimony they give in a criminal case. they have no right to bar public statements they made willingly. If people could do that, confessions would be inadmissable in court.

It's not illegal to apply a binary-only license to works protected under the GPL

i disagree. I believe the GPL specifically requires any code under the GPL that is distributed to have its source made available to anyone who requests it. A binary only license would put a further restriction on it's distribution and would then be a violation of the GPL. The only caveat to that would be if you owned the specific code, you could release it as GPL and also license it in non-GPL forms, like MySQL does. That, however, wouldnt apply in SCO's case because they are extending their restriction to cover code in the kernel that they do not hold copyright to. (unless you buy the "everything ever coded is a derivative of unix, therefore we own it" argument....but that's just absurd).

So the way i see it, if SCO fails to convince a judge that every operating system is a derivative work of sysV and thus they own the IP for all of it, their licensing scheme would clearly violate the copyright rights of all other Linux kernel contributors.

It also seems like if they fail in the civil suit, it opens them up to charges of fraud by everyone who buys one of their licenses.

Re:willful infringement.

[anthony_dipierro]

they have a right against self-incrimination with respect to testimony they give in a criminal case. they have no right to bar public statements they made willingly.

Yes but they are not willingly making the statements they are making in civil court. The court is forcing them to make them. If the government could do that, they'd just have a civil trial before every criminal trial so they could force the victim to incriminate himself.

If people could do that, confessions would be inadmissable in court.

They commonly are.

It's not illegal to apply a binary-only license to works protected under the GPL

i disagree.

Tell me what law is being broken.

I believe the GPL specifically requires any code under the GPL that is distributed to have its source made available to anyone who requests it.

Yeah, that's pretty much accurate.

A binary only license would put a further restriction on it's distribution and would then be a violation of the GPL.

A license does not place restrictions on things, a license allows you to do things.

The only caveat to that would be if you owned the specific code, you could release it as GPL and also license it in non-GPL forms, like MySQL does. That, however, wouldnt apply in SCO's case because they are extending their restriction to cover code in the kernel that they do not hold copyright to.

Clearly SCO's license would not be binding on third parties. I could grant you a license to copy and distribute Microsoft, but that doesn't mean that license is valid. It would probably be considered fraud or something, but when I said that it wasn't illegal I really meant it wasn't copyright infringement.

It also seems like if they fail in the civil suit, it opens them up to charges of fraud by everyone who buys one of their licenses.

Well, that's a completely different argument. I was specifically talking about criminal copyright infringement.

Great Answers, but...

[revery]

Most of the questions where I was really looking forward to the answer tended to end up involving civil law. I'd be very interested to see if Slashdot could get an interview with someone from that side of the law.

Other than that, I was very pleased with the responses we got. They weren't the short little answers I was expecting.

--

Was it the sheep climbing onto the altar, or the cattle lowing to be slain,
or the Son of God hanging dead and bloodied on a cross that told me this was a world condemned, but loved and bought with blood.

Re:Great Answers, but...

[FortKnox]

I'll agree with your sentiment. The answers were well thought out, well laid out, and answers the questions completely (but I did expect it. We are talking about top lawyers, here).

Civil answer would also be great, but we have to find another source that works on the 'other side' of the fence (not FSF lawyers, but RIAA lawyers).

Re:Great Answers, but...

[Surak]

Civil answer would also be great, but we have to find another source that works on the 'other side' of the fence (not FSF lawyers, but RIAA lawyers).

And given the number of cracks and stabs taken at the RIAA and the MPAA, do you *really* think they would *want* to answer questions posed by a mob of Slashdot users? ;)

Re:Great Answers, but...

[Otter]

Another agreed -- those were clear answers from people who a) know their stuff and b) clearly understand the audience they're speaking to.

The overlap between questions was unfortunate -- multiple confusions of RIAA civil suits with DOJ criminal cases and multiple "You're on their side, aren't you? Aren't you?" -- but that's a consequence of the ask-and-moderate system.

As far as civil law is concerned, I'd be happy if we could just get it into the head of the readership that the distinction exists. If we didn't have to read the words "convicted monopolist" in the comments for every single story, it would be a victory.

Re:Great Answers, but...

[bofkentucky]

You'll find that most civil cases have gag orders associated with them, plus you would have to track down the legal counsel for all of the companies you want to speak with assuming it wasn't gagged. The RIAA or MPAA is nothing but a Chamber of Commerce for the entertainment industry, they do not normally provide legal counsel for their associated companies.

However, there are some cases where it seems that the RIAA has banded together in a common class (RIAA v. Verizon) so it may be possible to extract comment on that case in particular or similar ones.

Re:Great Answers, but...

[DrWho520]

I must concur with this sentiment. I would like to see this type of story with experts in the Civil side of this issue. They do not have to be RIAA attourneys. Attourneys who would defend in this matter would be more than satisfactory. In fact, I would wager that many attourneys who would defend this matter got tired of representing plaintiffs in this arena. I am sure I would become sick at some of the tactics used by RIAA-like groups.

But then again, I am not a lawyer.

Re:Great Answers, but...

[Dave2 Wickham]

Y'know, if it wasnt for you, I doubt the term "Convicted Monopolist" would even have appeared in the comments here ;).

Re:Great Answers, but...

[Atzanteol]

If we didn't have to read the words "convicted monopolist" in the comments for every single story, it would be a victory.

*rofl*

I thought I was the only one who wanted to bitch-slap every slashdotter who used that phrase...

Re:Great Answers, but...

[The Llama King]

Other than that, I was very pleased with the responses we got. They weren't the short little answers I was expecting. You were expecting short answers? From a bunch of lawyers?

Re:Great Answers, but...

[evilpenguin]

I think the confusion arises because the Sherman Act sections in question (15 USC 1 and 15 USC 2) include criminal provisions.

A casual reading of the statute followed by a casual reading of the Findings of Fact and Conclusions of Law could easily lead even an intelligent layman into the error.

Point people to the opening sentence of the Conclusions of Law:

The United States, nineteen individual states, and the District of Columbia ("the plaintiffs") bring these consolidated civil enforcement actions against defendant Microsoft Corporation ("Microsoft") under the Sherman Antitrust Act, 15 U.S.C. 1 and 2.

(Emphasis added). It is also confusing to the layman that the DoJ brought the action. Instead of smugly telling people how stupid they are, maybe explain the reality to those less informed than you. That might do more to cut down on these irritations.

Re:Great Answers, but...

[powerlord]

and, equally, do we really expect to hear anything that we would find "enlightening" from their answers?

I have a feeling that in the majority of cases (no pun intended), Slashdot readers and **AA lawyers, would tend to take very different views, and I doubt either really could stomache the others thoughts (although I bet the lawyers would act more civil about it).

Re:Great Answers, but...

[sebmol]

Personally, I don't think the RIAA or MPAA lawyers have any position on this subject whatsoever. I'd rather imagine them to be of whatever position their clients are. The legal opinions of lawyers are of no significance if they are working to represent their clients.

Re:Great Answers, but...

[God! Awful 2]

Amazing how a set of lucid answers like these can make your average /. thread look like a bunch of squabbling 2 year olds.

-a

Re:Great Answers, but...

[pod]

Another agreed -- those were clear answers from people who a) know their stuff and b) clearly understand the audience they're speaking to.

Of course, law, like any technical subject, has people who are considered experts in their field. I urge any intersted /.ers to read some Supreme Court opinions/excerpts (including (or especially) the dissenting ones) on a recent high profile case. To me, the casual observer, the case is often very clear cut, and issues known, etc, etc, and I'm all ready to offer my solutions and opinions on it. But I know shit all about law. Like me trying to explain something, or contribute to a serious discussion about quantum physics. I grasp the general idea, but that's about it, and I'm sure I'd sound like an idiot. So back to the SC. Reading the explanations for their decisions is extremely enlightening. You'll be going like, 'hey, I never thought of that', or 'good point', or, 'hmm, really? damn who knew?' These people obviously more than just know their way around law. They're intimately involved with it on a daily basis. They spend a lot of time thinking about these issues. They understand what's involved. And still they disagree.

It's like kernel design, or CPU architecture. To a casual observer (ie, 99% of /. (no really, I shit you not)), the issues involved seem very simple. 'Why doesn't Linus just put in that patch? X will run 3 times as fast with it!' or 'why doesn't Intel throw another meg of L1 cache on their chips? What are they, dumbasses or something? Don't they know that'll boost performance 200%?' Well, the reality is somewhat more complicated, and experts in the field have their reasons. They're not always right, and it's not like they should not be questioned, but they know a heck of a lot more than you do, and more often than not, it's YOU who's missing something.

Re:Great Answers, but...

[WNight]

Sometimes. But other times supreme court justices are as deluded as drunks on a week-long bender.

For example, the recently sodomy issue. What possible legal reason is there to keep homosexual sex illegal? How is society served in any way? It costs more to police it, it annoys people who want to do it, etc.

The supreme court justices who were against this were voting their religion, nothing else. You could have replaced them with high-school dropout trailer-park residents for all the legal thought they had to put into their decision.

Sometimes experts are just highly paid imbeciles.

Well, by their length...

[TWX]

you can definitely that lawyers were involved in answering questions...

Re:Well, by their length...

[MaxwellStreet]

When balanced against William Shatner's responses, I'd say they average out nicely.

Aside, this was a great interview idea; and getting something like this would have been really hard without a site of Slashdot's size and popularity. There are a lot of (perhaps legitimate) complaints about what constitutes "news" around here, but this was seriously a great feature.

Thanks to Slashdot and the DOJ lawyers for making this happen.

Re:Well, by their length...

[nacturation]

you can definitely that lawyers were involved in answering questions...

And you can definitely that proofreading wasn't involved in your post.

Re:Well, by their length...

[Jon Abbott]

Yeah, the William Shatner interview, on the other hand, reminded me of the conversation between Flynn and the "bit" in TRON:

[A Bit flies around Flynn's head in a Recognizer.]
Kevin Flynn: Hey! Hold it right there!
Bit: Yes.
Kevin Flynn: What do you mean, "yes"?
Bit: Yes.
Kevin Flynn: Is that all you can say?
Bit: No.
Kevin Flynn: Know anything else?
Bit: Yes.
Kevin Flynn: Positive and negative, huh. You're a bit, aren't you?
Bit: Yes.
Kevin Flynn: Well, where's your program? Isn't he going to miss you?
Bit: No.
Kevin Flynn: I'M your program?
Bit: Yes.
Kevin Flynn: I've got a mouth to feed.
Bit: Yesyesyesyes!

Re:Well, by their length...

[Anonymous Coward]

yeah - I'd love to see the average open sores slashboters answer questions from an ignorant and hostile crowd like this place. Wait, I can sum up the answers, they would have all said "Read the f'ing law"

Re:Well, by their length...

[TWX]

Just thinking faster than I can type. Overran the buffer in my brain.

Re:Well, by their length...

[blair1q]

If you tried to put that much information into the answers, they'd each be 40 pages long and contain at least one grammatical, typographical, or factual error per sentence.

Penalty of perjury

[henrygb]

Reply 9 is interesting. The only part of a notification which can be penalized for deliberate inaccuracy seems to be the part on who the notifier is representing. Do general defamation laws apply to the rest of the notification? Or can I claim to represent myself (true) and that every internet publication infringes my exclusive right (false - in most cases), without fear of punishment?

Re:Penalty of perjury

[Col. Klink (retired)]

That's how I read has answer. Now I can get the name and address of anyone with a website just by filing a document in court claiming that the person is violating my copyright on "XYZ", just as long as I actually own the copyright to "XYZ". The Justice Department seems to think that this is just fine and will not prosecute you.

Re:Penalty of perjury

[Kintanon]

I thought that was interesting too, because technically there was a violation of the perjury clause there. The RIAA claimed to be authorized to act on behalf of the copyright holder of that specific MP3, when in fact they were NOT authorized to act on behalf of the copyright holder. Isn't that precisely the situation that the perjury clause is designed for?

Kintanon

Re:Penalty of perjury

[ispeters]

IANAL, but my interpretation of response #9 is that you must state, under penalty of perjury, that you represent the copyright holder. Truthfully saying that you represent yourself, and then falsely claiming to be the copyright holder, probably doesn't get you out of the perjury charge.

Ian

Re:Penalty of perjury

[Boing]

can I claim to represent myself (true) and that every internet publication infringes my exclusive right (false - in most cases), without fear of punishment?

You can claim it, and you can probably send an email to every webmaster in the U.S. saying so. But if you publish that claim about individual "infringers" on your website, it may be libelous since you are publicly making an untrue claim about someone else's illegal activity.

Re:Penalty of perjury

[Kierthos]

Unfortunately, most courts will look and see if they acted in a manner that was deliberately deceptive. When you testify in court, if you tell the truth, as you know it, and it turns out later that something you said was incorrect, but you had no way to know that, it's not perjury.

Kierthos

Re:Penalty of perjury

[Anonymous Coward]

Well, you could claim to own ":-(" ...

Re:Penalty of perjury

[dr_canak]

I don't know,

but it is an interesting point. I have no idea who the card carrying members of the RIAA are, but it could very well be the case that publishers are. And through recording contracts with artists, they allow for the RIAA to be the spokesperson for the protection of their property. Ergo, the RIAA can speak on behalf of all artists who are currently under contract with the publishers who themselves are associate members of RIAA.

just a thought?
jeff

Re:Penalty of perjury

[realdpk]

That sounds right to me. He may not have been familiar with this specific case.

Basically, what he just said means that an RIAA lawyer could send a DMCA notice for every person in America, simply because they hold a copyright to something.

I don't think that's right - it'd be great if he read the responses to the answers of the responses to the call for the original questions and then replied - that is, meta-ask-slashdot?

Re:Penalty of perjury

[Pionar]

No, you're misunderstanding. The RIAA claimed to represent Usher, the alleged singer (true) and that the "infringing" mp3 was an usher song (false, but not perjurous.)

The RIAA assumed that the mp3 was a song by an artist they represent. They did not claim to represent the real author, an (astrophysics?) professor. Simply being mistaken does not imply perjury.

Notice that most "under penalty of perjury" clauses in notices state something like "true to the best of my knowledge". That means that even if it isn't true, if it's true as far as you know, then you aren't committing perjury.

But really, "truth" is such a subjective word. :o)

Re:Penalty of perjury

[Kintanon]

It seems to me that they said "We represent the copyright holder of THIS mp3 (mp3 name here) and are going to kick your ass if it doesn't come down, we swear to god!"
Well, they didn't represent the copyright holder of that Mp3. They represent some shitty rapper named Usher.
So as I see it they were claiming to represent the professor simply by claiming to represent the copyright holder of THIS mp3 (mp3 name here). Now, to know for sure we would probably need the precise content of the notice sent to the university. But with the limited knowledge I've got it would appear that they do indeed just claim that they represent the copyright holder of the Mp3 listed and not "we represent 'Person' who we believe to be the copyright holder of 'Mp3' take it down or we'll kill you." which would make this a violation of the perjury clause.

As for being mistaken, do they not verify the contents of the files before sending out notices? Why is the burden of proof shifted away from the accuser here?

Kintanon

Re:Penalty of perjury

[Anonymous Coward]

If that's the case then a viable way to slow down the RIAA is to DOS attack the subpoena process.

Re:Penalty of perjury

[Reckless Visionary]

Despite my sympathy for your point, why would the Justice Department prosecute you for something that's not against the law? It's not their fault they wouldn't prosecute that, it's perfectly legal. Your point is better directed to your legislature.

Re:Penalty of perjury

[FuddChuckles]

It's a good thought, but defamation wouldn't apply. Defamation as defined in any given legal dictionary, is:

"communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person."

This can be published (libel) or spoken (slander).

Defamation couldn't apply to the mp3 notice because the false communication was not with a third party. You couldn't sue me for slander if I told you that you were a pedophile. Only if I told your boss that you were a pedophile. Also your reputation has to be harmed by the lie. If I tell your boss that you are a pedophile (and you are not, in fact a pedophile- truth is an absolute defense to defamation), and he shrugs his shoulders, then no dice. If he fires you after I tell him and proceeds to tell the community so you can never get a job, well then we have defamation. The mislabled mp3 file didn't harm the recipient in any such manner.

Lying to a customer violates all sorts of Uniform Commercial Code provisions and other state laws. Obviously, I can't sell you a glass ring and claim it's a diamond. But the UCC generally doesn't apply to what are considered illegal dealings (such as copyright infringement). In other words, good luck trying to sue Jay and Silent Bob for selling you Oregano when they told you it was weed.

Hope this helps.

-FC

Re:Penalty of perjury

[Cyno]

Well, looks like SCO can get away with it..

Re:Penalty of perjury

[aptenergy]

This is my guess, and IANAL, but the copyright owner is not the owner of the MP3 or work that is being stolen or whatever. In this case, I'm guessing the RIAA was acting on behalf of Usher, who I presume is the copyright owner of his songs. So it's not the actual creator of the file that matters, but the owner of the copyright whom the RIAA feels they can represent.

Now let's say I publish a piece of music but I make it free to everyone. If the RIAA subpoenaed someone for downloading music that I had made, and if they think that they're going to make money off of representing me somehow... that's just wrong. I think that's where the perjury rule applies.

Still though, you can't help but wonder what we can do against an organization that is so ruthless. Companies that spend millions of dollars on litigating people who have no way of defending themselves (and if they did, would probably run up some serious debt and probably lose or settle out of court) shouldn't be able to get away with the abuse that they have made so prominent on the evening news.

Re:Penalty of perjury

[AntiOrganic]

First, it's important to note that the copyright holder is the record label which holds the copyright, and not the artist whose name is on the album.

The RIAA is a trade union, and as such has certain powers granted to it by the labels which have created it. I'm sure that this is one of them. It's much better for these companies, PR-wise, to sue and subpoena under the guise of an industry lobby group than that of their own corporate moniker.

Re:Penalty of perjury

[Col. Klink (retired)]

Exactly. According to the DoJ, it is perfectly legal to claim someone is violating your copyrights and force their website down and get their personal information, even if you KNOW that they are not violating your copyrights.

If I want, I can now legally get your name. I just need to subpoena slashdot for the IP address of whoever posted your message, claiming it to be an infringement of my copyright, and then I can subpoena your ISP and find out where you live.

Maybe people will start being more polite online now...

Re:Penalty of perjury

[PhilHibbs]

The RIAA seem to agree on the scope of the perjury clause:

Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies in matters involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.

Re:Penalty of perjury

[MattRog]

The RIAA's lawyers are not stupid. Something tells me the notices they send out do not say anything near to "We legally represent the copyright holder of the song YourFile.MP3" -- precisely due to the perjury clause. We've seen examples that are generally much more vague, but the vagueness is generally all it takes to get the Uni to take a look at it. Was the professor ever taken to court? Of course not.

Your argument doesn't pass the reasonable person test - no court in the US is ever going to think the RIAA is making that claim... because they aren't.

Re:Penalty of perjury

[Hatta]

But based on what you're saying the RIAA could observe anyone downloading any file, claim that it's the newest metallica song and spam everyone with C&D letters. The language of the law says that they must accurately identify themselvs as representing *the* copyright holder, not just any copyright holder. The copyright holder in question must be the copyright holder of the mp3 in question. This is what the clause was written for, to help stem the tide of IP barratry. Interpreting the clause your way makes it totally ineffective at that.
Granted, a little good faith is allowed in perjury. This would be marginally acceptable if there wasn't a way to find out who actually holds the copyright to the mp3. But if they can't take the time to listen to the mp3 before they fire off a form letter then there has been no good faith effort to verify their statments, and they deserve to be tried and convicted of perjury.

Re:Penalty of perjury

[Dylan Zimmerman]

Well, the only reason that they were ignorant of the fact that it was clearly not a work of their Usher is because they didn't have a human listen to it or even look at the name. I'm pretty sure that that would be fairly extreme negligence at the least and quite possibly perjury. That just seems a little like (as the man said) testifying "in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male". Even a cursory comparison of the two would show quite well that they are not the same.

Re:Penalty of perjury

[starcraftsicko]

I agree. For those unclear about this, here is some clarification.

RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher

1) The RIAA was authorized to act on behalf of the music group Usher (or their publisher). However, since the work was not in fact by the music group, since it was in fact not a musical composition at all, this is not relevant.

2) The RIAA was not ever authorized to act on behalf of Professor Usher.

3) The content of the file clearly bore no resemblance to any work by an author or publisher that the RIAA was authorized to represent.

4) The RIAA represented to know the content of the work when they claimed that it was an example of copyright infringement.

5) Because of (4), the RIAA cannot claim (3) was an honest mistake. In order to make the claim of infringement, it can be said [legaleese] that they either knew or should kave known [/legaleese].

Perhaps there is a case here?

Re:Penalty of perjury

[nobody69]

You would think that there would be some sort of way for the RIAA to tell the difference between a rap song and an astrophysics lecture though. The fact that they threatened someone without a valid reason (w/c/sh)ould expose them to some sort of potential civil action at least, or criminal extortion charges at worst. I'm not familiar with the details of the incident, but it sounds like the equivalent of realizing somebody in jeans and a tee-shirt picked your pocket so you started threatening everyone you saw who had jeans on.

Btw, I like how you referred to Usher as 'the alleged singer'.

Re:Penalty of perjury

[AMammenT]

I think you could safely do that without fear of criminal punishment. However, I don't know what the civil response might be - all those people (or even some small number of them) may choose to sue.

Re:Penalty of perjury

[Fareq]

Ahh... but the subpoena is going to the ISP to get your information, not to you directly (although the ISP will likely inform you -- I think they have to, but I'm not sure)

So, in this case, the RIAA would be telling the ISP that you are an infringer of copyright. And since, in response, the ISP would treat you differently (namely, pass out to the RIAA your contact information) you would probably have a decent defamation case here.

Only one problem. Defamation of character (slander/libel -- libel in this case) is a civil matter, which means you are on your own to respond. Good luck suing the RIAA. They could and would throw their enormous mass behind destroying the first few such claims to discourage people from presenting others.

Before you knew it, they'd have won with their millions of dollars worth of legal help, and you'd be stuck paying their legal fees...

this is the biggest of the problems... it is simply impossible to sue companies so very much more powerful than you without enormous help as the "dream team" always wins.

Re:Penalty of perjury

[geekee]

" I thought that was interesting too, because technically there was a violation of the perjury clause there. The RIAA claimed to be authorized to act on behalf of the copyright holder of that specific MP3, when in fact they were NOT authorized to act on behalf of the copyright holder. Isn't that precisely the situation that the perjury clause is designed for?"

You're making the same mistake the questioner did. The RIAA represents the copyright owner of Usher. They have not lied about this so there is no perjury. The fact that the mp3 in question was not the copyrighted work of Usher, but something else, is irrelevant to the perjury clause. It's not illegal to file a charge based on poor evidence, just a waste of everyone's time. If the defendant wants to countersue for damages, that's his option.

Re:Penalty of perjury

[michael_cain]

I suspect that they say, "We represent the rapper Usher" and "We claim this MP3 is an infringement of that Usher's work." They are correct in the first statement (so there's no perjury), but wrong in the second (so there's no case). If they are blatent enough and frequent enough with the second error, there will eventually be changes in the law to attach penalties to failure to verify the content before sending the notices (which should have been in there from the beginning).

Re:Penalty of perjury

[xThinkx]

Just to point something out, I go to Penn State and work for them as one of the webmonkeys during the school year. The RIAA couldn't sue Penn State University, or claim, or really do anything, as Penn State University doesn't exist. The correct and legal name is "The Pennsylvania State University", which after now working for them has been burned into the insides of my eyelids.

Re:Penalty of perjury

[danila]

The claim to be the copyright holder is not false. I am definitely a copyright holder (for example, to this post) and all I claim is that you infringe on my copyright.

Re:Penalty of perjury

[Anonymous Coward]

Becuase the Department of Justice and Congress represent corporate interests. This attorney is lying through his teeth about the equity of enforcement as well as this specific case of perjury.

re: penalty of perjury

[ed.han]

o, sure: *that's* gonna happen... :>

ed

Re:Penalty of perjury

[Maudib]

You guys are misinterpreting this. The RIAA was in fact authorized to represent Usher, and when confronted with a file that they mistook for being a work of Usher's they pursued civil action. So while they were wrong in that there was no violation of the Usher's copyrights, they still werent committing perjury because they never claimed to represent the Professor who created the work in question.

For perjury they would have needed to claim that they were representing the professor.

Simply being mistaken as to the composition of and authorship of the work in question didnt suddenly transform the RIAA's filing into stating that they were representing someone other then Usher.

Re:Penalty of perjury

[MasonMcD]

I think the point made was, because the RIAA wasn't claiming to act on behalf of Professor Usher, but the artist Usher.

It's like the following exchange:
"Hey, have you ever spoken with Robert DeNiro?"
"No"
"HAH! Wrong! *My* name's Robert DeNiro!"

No one would call you a liar for saying no, likewise, no judge would call mistaken identity perjury.

That in no way is meant to imply the RIAA didn't look like a bunch of dickheads, just that in the absence of any damage, it's not actionable.

Re:Penalty of perjury

[Anonymous Coward]

Why subpoena slashdot?

What would happen if thousands of people recorded a little song they created, called it something like..."Ray of Light.mp3", and then started subpoena'ing every music server (including the online music stores) they could find...that would tie up some courts, eh?

Re:Penalty of perjury

[Kintanon]

The crux of that is whether they said they were representing the artist Usher in their letter of if they said they were representing "The copyright holder of whateverthehellitis.mp3". If the letter is of the second type they are misrepresnting themselves.

Kintanon

Re:Penalty of perjury

[Jameth]

I think we would do well to be reasonable in such matters. Just because the RIAA have sunk to the point that their personal integrity is as solid as air doesn't mean that we should start giving them shit about what they didn't do. That WAS a genuine mistake. Maybe most of the world is sue-happy, but that doesn't mean that everyone else should join them.

Re:Penalty of perjury

[Anonymous Coward]

I can't see where they would have even had any reasonable belief that what they said was true. For example: Say that I go into court and testify that there is currently a big pot of gold sitting on the courthouse steps (when in fact there isn't). Now I didn't actually look to see if there really was (there could have been, anything is possible). I probaly can't defend myself against perjury charges by saying that I wasn't being "deliberately deceptive" since I didn't know what I said was false because I didn't look. As an individual, the judge would throw the book at me. The rules seem to be different for corporations though.

Re:Penalty of perjury

[Anonymous Coward]

No, you are interested in the "good faith belief" part, not the perjury part. Perjury is just like he said; if you lie about your authority to act for a copyright holder, then you are committing perjury. (this is also covered by Rule 11 of the Fed. Rules of Civ. Pro., albeit under a different theory)

The RIAA has to have a "good faith belief" that the person has infringing material in order to subpoena the information. Now, what is a good faith belief? No one knows since there is very little law on it in this context. Is it simply looking at file names, or do they have to download and examine the whole file? Right now it seems like it's the former, but no one is sure yet. I personally think they are pushing very close to the limits of good faith in their quest to find high-profile cases to make examples out of. They're banking on no one fighting back.

Re:Penalty of perjury

[Anonymous Coward]

Your mixing up perjury with good faith. Perjury is if they outright lied about who they represent. Good faith is how long they spent doing their homework to see if the file really is the aforementioned shitty rapper.

Re:Penalty of perjury

[Anonymous Coward]

The problem, however, was that those "Usher" mp3s were of a lecture by one professor Usher, not the Usher associated with the music.

Re:Penalty of perjury

[paynter]

First, its important to note that the copyright holder is Professor Usher.

Given that, the RIAA is largely irrelevant to the question.

Dont you just hate it when...

[Anonymous Coward]

The lawyers dont come across as black hearted bastards but people who are truely passionate about the field they work in and seem to want to make a diffrence.

Re:Dont you just hate it when...

[Anonymous Coward]

It's called PR. That doesn't mean they're not still whores to bad laws and toadies to Corporate Amerika. They're lawyers for fuck's sake. Of course, they know how to spin.

~~~

Re:Dont you just hate it when...

[Anonymous Coward]

I don't think of government lawyers that way. After all, they certainly are not in it for the money.

Re:Dont you just hate it when...

[mikeophile]

"The greatest trick the Devil ever pulled was convincing the world He didn't exist."

- Verbal Kint

Re:Dont you just hate it when...

[lysium]

A tenuous analogy:
In a police state, the police officers themselves are decent more often than not. They are a tool to be used, albeit unjustly.

---------------

Re:Dont you just hate it when...

[Anonymous Coward]

Yes, I hate that. The most dangerous people are those who passionately believe they fight for a "good cause".

Re:Dont you just hate it when...

[Anonymous Coward]

I don't remember who said it, but, "you can't hate someone once you understand how they got there."

Re:Dont you just hate it when...

[jafac]

Of course, take this with a grain of salt.

Persuading people to agree with their view is what they do for a living. They're very good at it. Their BMW's show it.

Re:Dont you just hate it when...

[Monkelectric]

The lawyers dont come across as black hearted bastards but people who are truely passionate about the field they work in and seem to want to make a diffrence.

I think he still missed the point though. I think people are unhappy that a handfull of companies control music, movies, video games, television and news. And these companies are determined to provide the least usefull solutions and the least value to their customers.

How many times have you bought a DVD only to have several special edition versions issued later? Why not pirate the dvd now, and wait for the special edition? I have several DVD's which have died of "dvd rot". What is the Warner Brothers solution to this problem? Go buy another one!

The XBOX modding situation -- Emulation and XBOX Media Player on the xbox are *killer apps*. Yet people are *GOING TO JAIL* for selling chips which let you do this? Why doesn't Nintendo sell all their NES games on a cd with an emulator for 60$? What a killer app that would be!

Bush gutted the Microsoft settlement, and the issue of their massive financial fraud is still unaddressed.

Lastly, price fixing and payola, by the music industry is legendary, and what was the remedy? A 15$ rebate for people who were affected?

Piracy is an expression of peoples disatisfaction with the current state of affairs. But instead of fixing the *cause of the problem* these companies have convinced everyone that the nasty pirates are the problem, when they aer infact the symptoms of a broken system.

Re:Dont you just hate it when...

[RestiffBard]

high paid lawyers are black hearted.

These were government employees, thus poor. you don't go to work at the DOJ if you expect to make the big bucks. You go there cause a. you're just out of college or b. you really do care.

these folks struck me as the "we care" branch of the DOJ.

Re:Dont you just hate it when...

[jdiggans]

These are federal prosecutors. They are not overpaid , whiny, corporate defense attorneys. Lawyers working for the DoJ often choose to take an enormous hit in their salary for the opportunity to work on the other side of the federal fence. Having read the answers they provided I think it's clear the problem lies not with those in the trenches @ DoJ but rather with the leadership.
-j

Re:Dont you just hate it when...

[acceleriter]

Lawyers working for the DoJ often choose to take an enormous hit in their salary for the opportunity to work on the other side of the federal fence.

Providing them useful experience in the law enforcement side for when the go to the private sector. There is precious little altruism among lawyers, and certainly none among intellectual "property" lawyers.

Re:Dont you just hate it when...

[jdiggans]

So you've worked your way throughout the legal system and can say this with authority? As cynical as you may be, there are plenty of lawyers out there doing it for the love of the game; for the exact same reasons programmers write GPL'd code.
-j

Re:Dont you just hate it when...

[DoctorFrog]

"Between Ego and Entropy there is no need for a Devil." H.L. Mencken

Re:Dont you just hate it when...

[deblau]

Michael didn't miss the point at all. The lawyers at the DOJ are in the Executive Branch. They don't make laws, they just enforce them. Ideally, under our system of checks and balances, they shouldn't have any say over making the laws, and kudos to them for understanding this and responding to the interview questions in an appropriately professional manner. I'm glad that we have bureaucrats of their caliber working hard for us.

If you feel righteous indignation over large conglomerates controlling the economy, and if you feel that the situation should be corrected by enacting new laws, write your Congressman, and vote. If laws aren't appropriate, vote with your wallet. If the law is against you and all the businesses are against you, move out of the country, or engage in civil disobediance and expect a visit from our friendly DOJ lawyers *ahem*p2p*cough*.

The large corporations are working within the system to right the wrongs that they see. As Michael pointed out, and much to my happy suprise, the DOJ lawyers represent many small operations. I suggest that we get back in the ball game and start using the system ourselves. I think it would be remarkably appropriate for Prof. Usher to contact the DOJ regarding the notice he received from the RIAA.

Re:Dont you just hate it when...

[bill_mcgonigle]

How many times have you bought a DVD only to have several special edition versions issued later? Why not pirate the dvd now, and wait for the special edition?

Here's what I did: I waited for the LOTR:FOTR Special Edition. I didn't get the regular edition. I didn't copy a friend's. I waited. And lived. And was happy. And found other stuff to do in the meantime.

Maybe I want to have something now, but that doesn't mean I have the right to have it for free. That's the welfare attitude.

Re:Dont you just hate it when...

[bishopi]

I think he still missed the point though. I think people are unhappy that a handfull of companies control music, movies, video games, television and news. And these companies are determined to provide the least usefull solutions and the least value to their customers.

I don't know that he missed the point. His views on whether the companies themselves are right-or-wrong don't really matter - his role is to help with enforcement of the relevant laws, and to do that regardless of who is raising the complaint.

Privately, I think most people would have concerns about the collection and abuse of power going on in most countries today. The average citizen has been made, basically, irrelevant, in the bigger picture. In the end though, they're still going to go to the office and do their job, because you're even more irrelevant if you can't even survive in the society that is served up to you.

Ian

Question #9

[rhombic]

What I want to know is, why hasn't there been a prosecution for violation of the perjury clause of the DMCA on the Usher lecuture? It seems pretty cut and dried-- Professor Usher obviously never authorized the RIAA to act as his agent, and whomever issued the takedown letter swore under penalty of perjury that they were acting as his agent. So why hasn't this ended up in court?

Re:Question #9

[DeltaSigma]

I believe Prof. Usher would have to bring charges against them.

Re:Question #9

[overunderunderdone]

Clever, but a little too cute. This was obviously a case of mistaken identity. If it was a rival professer that was trying to get the Usher .mpg taken down THEN it would have been a criminal purjury case.
Professor Usher DOES probably have recourse in civil court though.

Re:Question #9

[Planesdragon]

IIRC, Usher wasn't arguing against copying his lecture--his lecture itself was an alleged violation of the DMCA.

Re:Question #9

[N2OY]

Because the RIAA wasn't acting as Professor Usher's agent... they were acting as an agent for the recording artist by the name of Usher. Usher's contract with his record agency probably allows the RIAA to act as his agent in pursuing copyright violations. If I remember correctly, the RIAA issued the takedown letter(s) based on the assumption that the MP3s being shared were those by Usher, the recording artist. As it turned out, they were lectures by Professor Usher, so the RIAA was not able to enforce the removal of those MP3s.

Re:Question #9

[Anonymous Coward]

No perjury was commited. The RIAA claimed, under penalty of perjury, that they represented the musician "Usher". They also claimed (without risk of perjury penalty) that the mp3 in question was copyrighted by their client.

They were correct under the first count (they represent the musician) therefore no perjury.

They were wrong on the second count, the mp3 was actually owned by Mr Usher the professor.

The DOJ answer clearly showed they did not have to be factually correct about the file in question, only that they do represent the copyright holder who is making a claim of infringment.

Re:Question #9

[HiThere]

Yeah. So it would be alright if I issued a take down order claiming to represent myself, and claiming that something someone else wrote was stolen? That's what this is asserting.

They didn't do any checking. If they aren't required to, then they should be. If they aren't required to, then I have even less respect for the law than I thought was the minimum.

It should be possible to sue anyone who causes your ISP to interfere with your service for maliciously destructive action unless you have intentionally made it difficult for them to verify that their claims are false. (Or, of course, unless their claims are true.)

Repeated fraudulent actions of this nature should be a (very) minor felony. Along the lines of embezzlement or other kinds of fraud. And it should be chargeable against the members of the board of directors of any corporation that authorizes it. Barring that against the Chief executive and the head of the legal department.

Re:Question #9

[johnrudy]

Re-read the answer carefully. RIAA was acting on behalf of the musical "artist" (ahem) Usher, not Prof. Usher. They got the take-down because they thought (incorrectly) that the mp3 they saw was for the musician they represented. They screwed up big-time, but technically, under the law, they had the right to make the attempt.

Which of course is why the law is in need of revision!

Re:Question #9

[matt_morgan]

Re-read the answer. The perjury bit does not refer to the accuracy of the claim, but to the authority of the complainant to act on the behalf of the allegedly damaged party.

Re:Question #9

[an_mo]

Come on , this is insightful? The parent poster clearly didn't read the answer.

Re:Question #9

[chrystoph]

Re-read the answer. The perjury bit does not refer to the accuracy of the claim, but to the authority of the complainant to act on the behalf of the allegedly damaged party.

However, if you read the actul content of the perjury claim, they have made a statement that does not work.

I am contacting you on behalf of the Recording Industry Association of America, Inc. (RIAA) and its member record companies. The RIAA is a trade association whose member companies create, manufacture and distribute approximately ninety (90) percent of all legitimate sound recordings sold in the United States. Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies in matters involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.

As a result of reading the entire statement, they have committed perjury by claiming that the organization that they represent is the copyright holder, or its legal agent (inferred in this paragraph, but stated in the next), of the infringing material.

Re:Question #9

[rhombic]

Doesn't matter. If the RIAA issues a takedown notice under the DMCA, they have to swear, under penalty of perjury, that they are either the copyright holder, or the authorized agent of the copyright holder. While they may be the authorized agent of Mr. Usher the R&B singer, they are probably not the authorized agent of Dr. Usher the professor. Therefore their sworn statement under which they issued the DMCA takedown notice is perjured.

Whether Dr. Usher presses charges or not should be irrellevant; perjury is an offense against the court, not an offense against a person. Not sure how this works under the DMCA.

Re:Question #9

[rhombic]

Yeah, I did read the answer. Several times. You might try it, it's kinda cool to do so.

The copyright holder of the recording in question, the lecture, is either Prof. Usher or his University. The RIAA issued a takedown notice under the DMCA. To issue this notice, they have to swear, under penalty of perjury, that they are either the copyright holder, or the authorized agent of the copyright holder, for the work in question. They are not.

They screwed up, they thought the recording in question belonged to someone (Usher the singer) for whom they are the authorized agent to make takedown notices.

Notice that the DOJ attorney ended his answer with "In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time."

He's clearly not saying that this action wasn't a DMCA violation, he's saying that he's unaware of a prosecution for violating the perjury clause.

Re:Question #9

[rhombic]

No, they didn't have the right to make the attempt. They claimed they had authorization to take down a copyrighted work. Re-read the answer, very carefully.

"In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time."

He's not saying the takedown didn't violate the DMCA, he's saying they haven't prosecuted yet. OF course, that might have something to do with the RIAA and their lapdogs Bush and Berman keeping the DOJ on a leash.

Re:Question #9

[gilroy]

Blockquoth the poster:

Yeah. So it would be alright if I issued a take down order claiming to represent myself, and claiming that something someone else wrote was stolen? That's what this is asserting.

Here's the cool part: You could send a cease-and-desist letter on your own behalf. The ISP takes down the web site for a day or two to review the allegation. They find it not true and restore the site. You then send the letter again (or arrange someone else to do the same). The site comes down. You can keep doing this indefinitely, since there are no penalties for the false claims.

Either the ISP keeps taking the site down (knocking that person off the Net) or they run a legal risk of losing their safe harbor protection (which their lawyers probably won't let them do).

Poor man's censorship. Yay.

Re:Question #9

[Anonymous Coward]

If I remember correctly, the RIAA issued the takedown letter(s) based on the assumption that the MP3s being shared were those by Usher, the recording artist.

So they stated, supposedly under penalty of perjury, that something was true when you say it was actually an (incorrect) assumption. How can that not be perjury? They falsely claimed something to be true. At best they simply didn't have the facts that they were claiming (under penalty of perjury) to provide.

Re:Question #9

[Anonymous Coward]

So lets flood the P2P networks with noise that is named with RIAA artist file names like "Usher". Kind of a reverse of what their previuos tactic.

This will slow the RIAA down as they have to check each song downloaded to ensure it is the correct song! They could not just look at the share folder. There would be some inconvenience for users but it could get the RIAA of their backs.

Could also use as a defense!!

Re:Question #9

[JGski]

The question is whether the RIAA is exercising "due diligence" in their filings. It seems clear they are not in this case and others. It would still be a civil tort - essentially negligent behavior that results in damage to reputation and/or incurred cost.

Re:Question #9

[litesgod]

The one thing everyone is forgetting is that perjury is defined, by the law as:

The deliberate, willful giving of false, misleading, or incomplete testimony under oath.

The key to this would be the terms deliberate and willful. However, the RIAA were acting as agents of Usher(R&B) and, in good faith to their client, were attempting to remove his copyrighted material from public distrobution. There is nothing perjorous in their act. It was a simple, honest mistake. Yes, it could have- and probably should have been avoided, but that does not make it illegal (criminally).

However, Dr. Usher probably would have a decent claim in a civil court, slander or some such- but he (so far) seems to be a nice guy and realizes that everyone makes mistakes.

Re:Question #9

[Atzanteol]

He's not saying the takedown didn't violate the DMCA, he's saying they haven't prosecuted yet. OF course, that might have something to do with the RIAA and their lapdogs Bush and Berman keeping the DOJ on a leash.

Obligatory Bush bashing eh?

They haven't prosecuted because there was no criminal claim made, AND the fact that this was a civil matter (which he mentioned a number of times wrt other cases). They don't just run around prosecuting folks ya know.

Re:Question #9

[Atzanteol]

I believe that the RIAA was claiming to act on behalf of the singer Usher (whom they mistakingly believe is the copyright holder). They were wrong about the file being under that copyright.

I do not believe the RIAA was claiming to act on behalf of the professor.

Re:Question #9

[Anonymous Coward]

An enlightened mind among us. If I had mod points, +1 to you sir.

Re:Question #9

[Anonymous Coward]

How can that not be perjury? They falsely claimed something to be true.

Because that's not, by itself, perjury, any more than "falsely claiming something", by itself, is lying.

The RIAA believed that the MP3 was by an artist it had the right to represent. It wasn't claiming to be Professor Usher's representative, and didn't know that the MP3 in quesiton wasn't by the artist it was representing. Its "falsely claiming something" was not deliberate. It was not lying, or committing perjury, it was just wrong.

Re:Question #9

[Merk]

So that's an interesting question. Let's say there is no penalty for accidentally claiming that you own the copyright for something and demanding that someone take it down. If that's the case, can I send a note to the RIAA demanding they take down their website because I believe they're using a graphic I created?

How sure do I have to be? Do I have to be absolutely certain that it's mine by examining it carefully? What if a friend said "Hey, your graphic is being used on the RIAA site, did you authorize that?" -- if I trust him and don't bother to look, can I still demand they take it down? What if I just think the RIAA are evil, evil bastards and because I saw the letters "riaa" at some point in my web server logs that I can assume somewhere on their site they've got a stolen image of mine?

If I don't do it in a public way, they can't accuse me of slander or libel, right?

My understanding is that the burden of proof seems to be with the accused to show they're not infringing... So can I force the RIAA to prove that they own the copyright to all their images? If I sent the takedown message to their upstream connectivity provider and demanded they be cut off for violating my copyright, would their bandwidth provider have to comply to avoid a DMCA violation, no matter how absurd the claim?

Re:Question #9

[Wooo]

In this instance, the attorneys for the RIAA were acting on behalf of the copyright owner (in this case the RIAA) who believed that another party (Professor Usher) was infringing upon their copyright (Usher the musician). They nowhere claimed to be representing a party with whom they were not the legal agent.

The perjury clause of the DMCA is only valid if someone claims to be representing a copyright owner when, in fact, they have no legal grounds to do so. If I were to start issuing takedown notices to people saying that I was representing the RIAA even though I had no legal grounds to do so, I would be commiting perjury, NOT the RIAA.

In the end, yes the attorney's for the RIAA were wrong in assuming Professor Usher was infringing on the RIAA's copyright, but they were representing the RIAA who were the legal copyright holders of Usher's music. Therefore, they are not commiting perjury because they were the legal agents of the RIAA.

Re:Question #9

[N2OY]

How can that not be perjury? They falsely claimed something to be true. Because that's not, by itself, perjury, any more than "falsely claiming something", by itself, is lying. The RIAA believed that the MP3 was by an artist it had the right to represent. It wasn't claiming to be Professor Usher's representative, and didn't know that the MP3 in quesiton wasn't by the artist it was representing. Its "falsely claiming something" was not deliberate. It was not lying, or committing perjury, it was just wrong. Exactly. And if you read the response to the original question in the interview, you'll see that the penalty of perjury refers to the representation of the person whose copyrights are supposedly being infringed upon. To quote from the reply to #9:

Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

Re:Question #9

[johnrudy]

IANAL, but intent in seeking subpeonas in DMCA will carry a lot of weight. RIAA was representing a musical artist, and issuing the subpeona based on the musician, NOT the professor.

That they apparently didn't even bother to download, open and listen to the contested file to ensure that it was their copyright actually does not seem to prevent enforcement.

Which is, again, why the law needs revision. The burden of proof for those subpeonas needs to be higher.

Re:Question #9

[overunderunderdone]

Like I said, too cute. They mistakenly thought that Dr. Usher's copyrighted material was Mr. Usher's copyrighted material who they swore, under penalty of perjury, that they were the authorized agent of. They never claimed to be Dr. Usher's agent. Sorry, it simply is not perjury no matter how much you or I dislike the RIAA.

I think if Dr. Usher was harmed by the RIAA's negligent mistake he probably has some recourse in civil court.

Re:Question #9

[ShadyG]

Professor Usher obviously never authorized the RIAA to act as his agent, and whomever issued the takedown letter swore under penalty of perjury that they were acting as his agent. So why hasn't this ended up in court?

Probably because the RIAA actually swore that they were acting as the agent of the musician Usher. I doubt they knew this professor existed, or ever claimed to be acting on his behalf. So they did not perjure themselves.

Re:Question #9

[odin53]

Yeah, I did read the answer. Several times.

Then you're misunderstanding his answer. Your interpretation is the same as the questioner's, and O'Leary said that the questioner is interpreting the provision incorrectly.

The RIAA is invoking the rights of Usher, the R&B singer, for whom they are the authorized agent to give takedown notices. For purposes of that perjury provision, it's irrelevant who the copyright holder of the allegedly infringing work is. The only thing that matters for that provision is whose right is being invoked.

Notice that the DOJ attorney ended his answer with "In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time."

He's clearly not saying that this action wasn't a DMCA violation, he's saying that he's unaware of a prosecution for violating the perjury clause.

Again, you're reading this incorrectly. In that quote, he's summarizing his explanation and then saying that he's never heard of a prosecution for violating the perjury provision. He's certainly not even talking about the Usher case.

Re:Question #9

[Anonymous Coward]

The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner

Right, and in this case they definitely were acting without the authorisation of the copyright owner. Maybe you need to read this thread again from the begining?

Re:Question #9

[Anonymous Coward]

Are you really so dense as to unable to see the difference between mistakenly claiming something, and doing so deliberately?

Re:Question #9

[Paradise Pete]

Let's say there is no penalty for accidentally claiming that you own the copyright for something and demanding that someone take it down. If that's the case, can I send a note to the RIAA demanding they take down their website because I believe they're using a graphic I created?

Only if you pretend the word accidentally has no meaning.

Re:Question #9

[/dev/trash]

It was sloppy work by the RIAA. They were working on Usher ( the singer)'s behalf. So they messed up. Big deal.

Re:Question #9

[Anonymous Coward]

I can tell the difference, but I'm not sure that you can. The claim earlier in the thread was that they'd assumed something to be true and then stated it as a fact subject to perjury. If that's the case then they misrepresented their knowledge. Calling it a "mistake" is playing with words. Possibly the claim that it was an assumption is untrue though and they really did have reason to believe it.

Re:Question #9

[rhombic]

My interpretation's not the same as the questioner-- it's not that the perjury is in affirming that the recording is illegal, the perjury is in claiming that they are "authorized to act on behalf of the copyright owner" when they're not. Because they're not. Open and shut.

If you really think that the RIAA is totally free & clear in this, then why did they issue a formal apology, give the poor Prof. an Usher T-shirt and CD, and claim that it was an error by a temp worker? So if they are in the wrong on this, why wouldn't Penn State (the copyright holder) want to go after the RIAA? Well, it might have something to do with:

"Penn State President Graham Spanier, who testified before Congress in February about online piracy, is the co-chairman of a working group that includes the entertainment industry." Story from News.com Seems kind of obvious (if a bit smelly) to me...

Re:Question #9

[odin53]

My interpretation's not the same as the questioner-- it's not that the perjury is in affirming that the recording is illegal, the perjury is in claiming that they are "authorized to act on behalf of the copyright owner" when they're not. Because they're not. Open and shut.

I don't think you have a different interpretation. The questioner gives this analogy: "if the police are looking for a 'Caucasian male, age 50-60, bald, 200-225 pounds,' can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?" This clearly is supposed to analogize to the identity of the copyright holder issue.

At any rate, even if your interpretation is different, it's still wrong. Section 512(c)(3) requires: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. " Emphasis mine. That's pretty clear to me. The provision doesn't talk about whether the complaining party is claiming to be authorized to act on behalf of the owner of the copyright of the specific work they're complaining about, which is what you are saying.

Thus: the RIAA -- the complaining party -- claims, under penalty of perjury, that it is authorized to act on behalf of the R&B singer Usher, who owns the exclusive right to distribute copies of his songs, which seemed to be infringed by unauthorized MP3s on the Penn State network.

If you really think that the RIAA is totally free & clear in this, then why did they issue a formal apology, give the poor Prof. an Usher T-shirt and CD, and claim that it was an error by a temp worker?

Because it's an embarrassing mistake, of course. Mistakes are bad public relations, no matter what. (You may think that the RIAA's behavior in general is bad PR, but that's a totally different story.)

Re:Question #9

[Alsee]

Many people still do not understand what the DOJ said.
THE PERJURY CLAUSE DOES NOT APPLY TO THE ALLEGATION OF INFRINGEMENT.

The perjury clause ONLY applies to your claim that you hold a specific copyright or that you represent a specific copyright holder.

Anyone can get a subpoena against anyone else by make totally unsubstantiated infringment claims so long as they claim is it an infringement of something that is actually have a copyright on.

I could claim that DOJ lawyer voilated the copyright on my poetry and get a subpoena on him. even if it's a poem I wrote 5 minutes ago and that no one else has ever seen.

-

Re:Question #9

[rakeswell]

The one thing everyone is forgetting is that perjury is defined, by the law as:
The deliberate, willful giving of false, misleading, or incomplete testimony under oath.
...the RIAA were acting as agents of Usher(R&B) and, in good faith to their client were attempting to remove his copyrighted material from public distrobution. There is nothing perjorous in their act.

Well the problem with your assertion is that here you are giving an affirmation that it *is* the case that you represent the lawful copyright owner, even though you know damn well you haven't done the due diligence to confirm that this is actually true. This is usually refered to as due diligence.

If you make an assertion under oath where you know that there is a good chance that the assertion you are making is false (because you haven't bothered to do due diligence), doesn't that constitute a "deliberate, willful giving of false, misleading, or incomplete testimony under oath."

Re:Question #9

[ynakai]

In general, lots of posters are looking at (a subset of) a law and saying, "well gee, that means I could do this and that!" While that is good critical thinking in general, most of the strange potential effects are curtailed by common sense and other aspects of law. So for instance, while under the DMCA you could attempt to shut down any number of web sites by making frivolous copyright infringement claims, that behavior would be pretty obvious and would be penalized by a court.

We're doomed....

[revery]

Our interest in technology explains why so many of us are frequent Slashdot readers

They're Slashdot readers?!? We're doomed....

--

Was it the sheep climbing onto the altar, or the cattle lowing to be slain,
or the Son of God hanging dead and bloodied on a cross that told me this was a world condemned, but loved and bought with blood.

Re:We're doomed....

[Telex4]

Our interest in technology explains why so many of us are frequent Slashdot readers

They're Slashdot readers?!? We're doomed....

All of a sudden I feel less secure in my smug "IANAL but..." comments ;-)

Re:We're doomed....

[Toasty981]

You think you get smug with good "IANAL, but" responses? Imagine having to hold back on typing "Look, IAMAFDOJL" (I am a fucking Department of Justice lawyer) when someone tells you you're wrong!

Re:We're doomed....

[aug24]

Yeah, but being lawyers they post like this:

"Notwithstanding the possibility of a third party or several third parties having already done so without the knowledge of this contributor, First Post. This post comes with no warrantee whatsoever and read at the the reader's own risk, including, but not limited to, eye-strain, boredom, suicidal rage and scabies."

J.

Re:We're doomed....

[homebru]

They're Slashdot readers?!? We're doomed....

Should have expected it. After all, there _are_ at least a half-dozen posters who know the difference between "lose" and "loose".

Re:We're doomed....

[rzbx]

Since they do read slashdot, then where are the IAAL acronyms?

Re:We're doomed....

[Anonymous Coward]

Imagine having to hold back on typing "Look, IAMAFDOJL" (I am a fucking Department of Justice lawyer) when someone tells you you're wrong!

Yeah, cause that would then confirm that you're wrong!

Re:We're doomed....

[Anonymous Coward]

Since they do read slashdot, then where are the IAAL acronyms?

What, you were expecting free legal advice? More likely,

IANYL - I Am Not Your Lawyer
GYOGDLYGTNO - Get Your Own G-d D-mn-d Lawyer, You're Going To Need One
IWBYLF$300PH - I Will Be Your Lawyer For $300 Per Hour

Re:We're doomed....

[Anonymous Coward]

Our interest in technology explains why so many of us are frequent Slashdot readers
They're Slashdot readers?!? We're doomed....

You thought the enemy wasn't here? Of course we are.

Believe it or not, some slashdotters are even (gasp) Microsoft employees.

Re:We're doomed....

[Toasty981]

It's meant as a joke. You know, like when people say "look, im obviously not stupid, I have a doctorate" even if the topic at hand has nothing to do with their field.

Re:We're doomed....

[Anonymous Coward]

Our interest in technology explains why so many of us are frequent Slashdot readers
They're Slashdot readers?!? We're doomed....

The DOJ guys would be reading this even if they weren't in the enforcement end of the business. Slashdot, you see, is just about the fastest, most comprehensive IP Litigation News Monitoring Service available. (Not to mention free.) Don'tcha just love the rule of unintended consequences?

IAAL, BIANYL.

Re:We're doomed....

[Cesaro]

I wonder how many FPs they have between them?

Re:We're doomed....

[Anonymous Coward]

You think you get smug with good "IANAL, but" responses? Imagine having to hold back on typing "Look, IAMAFDOJL" (I am a fucking Department of Justice lawyer) when someone tells you you're wrong!

Yeah, poor bastards. And they can't haul off that way, as you well know, because some fool would immediately go down the road of "Toasty981, a DOJ spokesman, said on the Internet News site Slashdot Thursday that the DOJ would no longer be..." Same reason most slashdotters won't identify their current employer.

They just have to bite their tongue when some AC blathers on about how the Eldred case ruined the patent system or why the Lindows name should be a fair use, since there's prior art to Microsoft's invention of the word "windows".

Of course, the lawyers don't have it any worse than the slashdot PhDs and industry veterans who get ignored (or modded down or flamed by in 3l337 sp33(h by d00d5 who ph33r their own spell-checkers) when they try to calmly explain for the seventeenth time that the internet is not the world wide web and that free-as-in-beer does not mean that some one is throwing a kegger.

Re:We're doomed....

[Anonymous Coward]

So they think reading Slashdot makes them technically qualified? Well, I read GrepLaw and LawMeme so I guess that makes me qualified to practice law, huh? Now, where do I sent off for my license? I want to get started in my new career as soon as possible!

A.C., esq.

Re:We're doomed....

[tqft]

If I were you I would be more worried about them reading your sig and sending the "attaches" around about your DVD ripper

Nice to know these guys are regular readers

[Anonymous Coward]

Re: That link to those questionable binaries from that article last week

It wasn't me. I didn't do it.

-- A. Coward

NoNoNo

[God! Awful 2]

If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further.

The question is whether piracy affects everyday people who are trying to drive companies *out* of business. (Companies such as Microsoft.)

-a

Re:NoNoNo

[Anonymous Coward]

Yes, it's interesting that if I physically harm one person I gain the scorn of people. But if I ruin the lives of countless people in my shrewd business dealings, I gain the admiration of people.

The human race is f***ed up.

Re:NoNoNo

[Anonymous Coward]

You are a stupid communist...

Re:NoNoNo

[Anonymous Coward]

The sole objective of any business is to drive its competitors into insolvency.

breaking the law

[evenprime]

O'Leary said: We feel strongly that everyone should comply with the requirements of all laws.

I think that's the key here. As has been pointed out before, most file sharing, CD burning, etc. goes on because the public believes that they somehow have a *right* to a song or a movie without paying for it. That's just plain silly.

Ignoring the law just because it is inconvenient is wrong. O'Leary was incorrect in stating that *all* laws should be obeyed - the civil rights movement was an proper form of law breaking - but "because I want this" is not a valid reason to break the law.

Re:breaking the law

[Anonymous Coward]

So you think we should have all been nice polite british subjects a few hundred years back and happily paid for our stamps and tea and all the other "good laws" of George the III?

Immoral laws can never be tolerated by an educated population, and there is nothing as immoral as claiming to own others, whether in physical or intellectual slavery. The mis-application of copyright as if property is as such immoral.

Re:breaking the law

[Anonymous Coward]

Ignoring the law just because it is inconvenient is wrong.

how about ignoring law because it is wrong? IP and copyright are fundamentally unethical laws in an age in where there are no natural restrictions to the flow or creation of information and the vast majority of "violators" are not doing so for profit or for gain.

Unethical laws must be broken by any public-minded citizen. It is time to bring the system down, down, down.

Re:breaking the law

[deman1985]

I think people would be much more inclined to respect the laws if it were the artists themselves pressing the charges against people and stepping up to remand piracy stops instead of the RIAA which doesn't serve any purpose other than to litigate. If I hear the artists themselves screaming about losing money then I might care. When I hear a big corporation telling me to stop copying stuff when they themselves aren't the ones creating the music, then it does nothing more than piss me off. And by artists screaming, I don't mean ones being sponsored by the RIAA-- I mean they themselves must go and speak out against it. I don't hear the indie artists complaining about piracy, and there are plenty of big indie artists out there that I'm sure have their music pirated too.

Re:breaking the law

[tds67]

O'Leary was incorrect in stating that *all* laws should be obeyed - the civil rights movement was an proper form of law breaking - but "because I want this" is not a valid reason to break the law.

The civil rights movement *wanted* something: their perceived rights. So do we vis-a-vis music. Sometimes it's necessary to exercise civil disobedience when you *want* something (e.g., copyright reform, artists to be free from the RIAA and the record companies, etc.), especially when corporate America has your government in its back pocket and refuses to adapt to the marketplace. I can't think of a better way to do this than to *show* the powers that be that we want to buy our music online in a free and unfettered way. This demonstration is being done peacefully online.

Re:breaking the law

[IWorkForMorons]

Wrong. Not all laws should be obeyed, if the majority of society believes a law to be too restrictive. Look at Amsterdam and the pot laws. Pot is still illegal there. But yet people use it often, and legitimately set up businesses around that illegal substance. No one considers the law to be pertinant, yet it's still on the books.

But also consider the fact that Amsterdam has fewer people per-capita who use pot compared to most American cities. You can go away for a long time for having a joint, yet people do it anyways. Soon, you can go away for a long time for having a pirated song on your computer. Yet a lot of people will do it anyways...

Re:breaking the law

[Anonymous Coward]

AC said:

So you think we should have all been nice polite british subjects a few hundred years back and happily paid for our stamps and tea and all the other "good laws" of George the III?

No, I don't. Much of the lawbreaking in the American Revolution was justified. You are missing the point of the revolution, though. The USA was founded because the colonists objected to "taxation WITHOUT REPRESENTATION", not because they objected to taxes.

Besides, the most effective way of avoiding the tea tax in those times was to drink coffee, which is why it is more popular here now than tea. The way to avoid the rum tax was to produce whiskey locally.

Now days, the best way to avoid unfair file sharing regulations is to intentionally listen to and share music from RIAA-independent bands who don't mind.

Re:breaking the law

[Anonymous Coward]

The proper response to your post is music I "stole" just yesterday (KMFDM / Glory):


War and slavery, exploitation:
The common faces of the western nations
Official version, a falsified story
The truth lies buried in a shroud of glory

Influential people aren't serving time
For being involved in organized crime
But stashed away in beautiful mansions
Guess who provides for their generous pensions?

Oppression, ignorance, censorship rule
Education is more than what's taught in school
Forced in the mold, held down by threats
Decisions are made over our heads

But there is a way to refuse and resist
We don't need to be ruled with the iron fist
We are the people, we are strong
Let's make up our minds and call them wrong

Re:breaking the law

[Kierthos]

Yes, but then the British government had the "wonderful" idea of sending the taxable goods over anyway and saying "You must pay the taxes on these. The amount owed is such-and-such"... which, of course, led to Boston Harbor looking and smelly manky even before modern petrochemicals were added.

And the rest... is history...

Kierthos

Re:breaking the law

[Anonymous Coward]

Well, if the public thinks they have the right to do something, shouldn't they elect representatives that will promote that right in legislation and execution?

Oh, wait, I forgot, People elect representatives, but advertising garners people.

Re:breaking the law

[evenprime]

how about ignoring law because it is wrong?

I'm all for it. In my post that started this thread, I said that the civil rights movement was a "proper form of law breaking". Someone else in this thread asked about the british laws that were broken during the American Revolution. Same deal.

IP and copyright are fundamentally unethical laws in an age in where there are no natural restrictions to the flow or creation of information.... [my emphasis -- 2]

I'd say talent and/or drive are restrictions. If you think it is so easy, write your own music and content. Direct your own movies. Then there's no need to pilfer someone else's.

...and the vast majority of "violators" are not doing so for profit or for gain.

People who get copies of copyrighted works without permission are profiting from their efforts as they gain (i.e. obtain) something they didn't pay for.

Re:breaking the law

[Anonymous Coward]

In informed discourse, it is usually taken as read that "law," by virtue of its definition, must necessarily be legitimate and just. An unjust or illegitimate law is no law at all.

For example, if your neighbor, Stu, declared that it was against the law for you to wear black socks with Bermuda shorts, would that actually be a law? Of course not, because it's illegitimate.

Similarly, a law that is fundamentally unjust is not a law at all. It's a clerical error on the part of the legislature.

Now, educated people can disagree about which laws are just, but the underlying assumption is just laws must be obeyed.

Re:breaking the law

[HiThere]

Not to worry. As good ecologists they soon removed everything that they had thrown into the harbor and recycled it.

Grade school history books always paint things in black and white, and ignore many or the real reasons that things happened. "Because we wanted the tea, and didn't want to pay the taxes" was a big part of the reason for the Boston Tea Party. (Also because Samuel Adams was a smuggler.)

This *doesn't* mean that it wasn't the right thing to do.

Re:breaking the law

[HiThere]

Just because the current copyright laws are unjust doesn't mean that copyrights aren't a good concept. They're a various dangerous concept, as any creation of a monopoly is, but they can serve an useful purpose.

OTOH, I doubt that there is any valid justification, except in an extremely small minority of cases, for a copyright that lasts longer than 5 years. I'll go so far as 17 years and consider it's probably reasonable. Anything over that and...no. You're extending monopoly to dangerously. More than the social benefit justifies.

Re:breaking the law

[HBI]

Ignoring the law just because it is inconvenient is wrong.

Recent music piracy has a Boston Tea Party flavor to it. We won't buy it, so we'll steal it and dump it overboard.

Re:breaking the law

[Anonymous Coward]

The civil rights movement *wanted* something: their perceived rights. So do we vis-a-vis music. Sometimes it's necessary to exercise civil disobedience when you *want* something...

Theft is not civil disobedience, and onerous pricing of music is the same as being treated as an inferior race.

...(e.g., copyright reform, ....

Write your congress critter. Write angry editorials to the local paper. Organize a meatspace protest. Use any other means of protesting copyright laws. If you really believe that you goal is to reform the laws, you need to understand that you are currently hurting your cause. When you take music without paying for it, you ensure that the public thinks you only care about obtaining things without paying for them; they won't even listen to your rhetoric about the need for copyright reform.

....artists to be free from the RIAA and the record companies, etc.),

Any artist who doesn't want to sign a contract with a record company has that right. Any musician who wants to sign a contract with a company, but doesn't want to restrict file sharing of their music can submit a demo to record companies that allow taping and sharing of their artist's shows.

Re:breaking the law

[ahfoo]

Are you quite sure the colonists were all happy to pay taxes? Did they pay income tax? Are you aware of the history of income taxes in the US? I'll give you a hint, it comes after the Civil War.
Prior to that time, the US government's income came primarily from import duties and land sales, you will recall the westward settlement. I can guess you'll try and back out by saying that import duties are taxes, but they're not, they're duties. That's why there are two words. It's like calling copyright infrinegment stealing.
The parent is damn right that unjust laws should not be followed and should be broken willfully by corageous citizens and this is an American tradtion we should be proud of.

Re:breaking the law

[Anonymous Coward]

evenprime said: "Ignoring the law just because it is inconvenient is wrong."

HBI replied: "Recent music piracy has a Boston Tea Party flavor to it. We won't buy it, so we'll steal it and dump it overboard."

Wrong. If you downloaded it to /dev/null, so that it was not useable, you might have a point. If you downloaded it and listened to it, there's nothing even slightly like the Boston Tea Party about it.

Re:breaking the law

[Laur]

Recent music piracy has a Boston Tea Party flavor to it. We won't buy it, so we'll steal it and dump it overboard.

Actually, it's more like "We won't buy it, so we'll steal it and drink it anyway." Not quite the same selfless act, now is it?

Re:breaking the law

[Fascist Christ]

If I hear the artists themselves screaming about losing money then I might care.

Unfortunately, in most cases (especially regarding the RIAA) the artist does not own the copyright and, therefore, cannot press charges (even if they wanted to).

To take it a step further, the artist might even benefit from the free exchange of the music (ie: increasing awareness increases the value of their live performances). However, the copyright holder isn't necisarily conscerned with that, especially if their profit strucure depends mostly on retail sales rather than live performances.

Re:breaking the law

[HBI]

Actually, it's more like "We won't buy it, so we'll steal it and drink it anyway." Not quite the same selfless act, now is it?

No, not really, but I don't think anyone today feels obligated towards large corporate interests, really. Moral ascendancy over corporations is a waste of time. Steal, steal, steal seems to be the order of the day.

Ultimately the underlying lack of concern for the corporation is going to be what causes their doom. Society is already disintegrating at a rapid pace - the failure of large-scale private enterprise is going to be close to the last straw.

Hopefully i'm dead by then.

Re:breaking the law

[Fascist Christ]

O'Leary said: We feel strongly that everyone should comply with the requirements of all laws.
I think that's the key here.

I can't remember the Ten Commandments, let alone all the laws.

Re:breaking the law

[tds67]

Theft is not civil disobedience...

Theft? Who's talking about theft? I was talking about copyright infringement.

...and onerous pricing of music is the same as being treated as an inferior race.

Not sure I agree with that. I doubt Martin Luther King would, either.

If you really believe that you goal is to reform the laws, you need to understand that you are currently hurting your cause. When you take music without paying for it, you ensure that the public thinks you only care about obtaining things without paying for them...

Nonsense. You might think that, but you don't speak for John Q. Public--especially not the 65 or 70 million online music traders (or copiers, whatever).

Any artist who doesn't want to sign a contract with a record company has that right.

Of course they do. And you have the right to be unemployed if you want to.

Re:breaking the law

[anthony_dipierro]

I think that's the key here. As has been pointed out before, most file sharing, CD burning, etc. goes on because the public believes that they somehow have a *right* to a song or a movie without paying for it.

No. The public believes they they have a *right* to *copy* and *distribute* a song or movie without paying for it.

Ignoring the law just because it is inconvenient is wrong.

No it isn't.

O'Leary was incorrect in stating that *all* laws should be obeyed - the civil rights movement was an proper form of law breaking - but "because I want this" is not a valid reason to break the law.

I fail to see the difference. Why is the right to sit in the front of the bus any less important than the right to copy a song? Were our founding fathers wrong for refusing to pay their taxes?

Re:breaking the law

[anthony_dipierro]

You are missing the point of the revolution, though. The USA was founded because the colonists objected to "taxation WITHOUT REPRESENTATION", not because they objected to taxes.

When the RIAA gives me a seat on their board of directors I'll happily stop arguing about their copying tax.

Re:breaking the law

[Anonymous Coward]

tds67

....artists to be free from the RIAA and the record companies, etc.),

AC:

Any artist who doesn't want to sign a contract with a record company has that right. Any musician who wants to sign a contract with a company, but doesn't want to restrict file sharing of their music can submit a demo to record companies that allow taping and sharing of their artist's shows.

tds67:

Of course they do. And you have the right to be unemployed if you want to.

Nice try. You ought to check links before responding. A band on a national tour with B.B. King and Jeff Beck is certainly not unemployed.

Re:breaking the law

[Uncle Eazy]

Let's not forget how people tore into Metallica for doing exactly what you're talking about.

Uncle Eazy

I think people would be much more inclined to respect the laws if it were the artists themselves pressing the charges against people and stepping up to remand piracy stops instead of the RIAA which doesn't serve any purpose other than to litigate. If I hear the artists themselves screaming about losing money then I might care. When I hear a big corporation telling me to stop copying stuff when they themselves aren't the ones creating the music, then it does nothing more than piss me off. And by artists screaming, I don't mean ones being sponsored by the RIAA-- I mean they themselves must go and speak out against it. I don't hear the indie artists complaining about piracy, and there are plenty of big indie artists out there that I'm sure have their music pirated too.

Re:breaking the law

[tds67]

Nice try. You ought to check links before responding. A band on a national tour with B.B. King and Jeff Beck is certainly not unemployed.

I don't modify my beliefs based on the audience.

Re:breaking the law

[Ogerman]

Immoral laws can never be tolerated by an educated population, and there is nothing as immoral as claiming to own others, whether in physical or intellectual slavery. The mis-application of copyright as if property is as such immoral.

The easiest way to destroy immoral laws is to make them irrelevant. If everyone switched to Open Source software and RIAA-independent bands who gladly share their tunes, none of this stuff would matter and all these excessive "IP" lawyers would be out of jobs.

Of course, this requires one putting their money where their mouth is. As long as folks insist on "playing the old game", they're going to keep being hastled by the old game's rules.

Re:breaking the law

[Anonymous Coward]

>I don't modify my beliefs based on the audience.

That's nice. It really is commendable. I admire integrity.

What would be even better would be if you learned to maintain that integrity, meanwhile learning to modifying your beliefs when they run contrary to *ACTUAL DATA*. You claimed that a band that doesn't do things the RIAA was will be unemployed. I showed you an example of a very successful band that is not doing things the RIAA way. Ani Defranco is another nice example.

Copyright infringement is a piss poor way of fighting RIAA. If you want to avoid RIAA, go buy used CDs and then send the money you saved directly to the artists. Better yet, listen to RIAA-free artists. Oh, sorry, I forgot, you don't think there are any of those in the music buisness.

Re:breaking the law

[jratcliffe]

First off, claiming that enforcing copyright law is tantamount to slavery is disgusting. You're probably one of those people who bandies the phrase "Nazi" around casually. Secondly, people certainly should feel free to resist or ignore laws they view as unjust - they shouldn't be surprised, however, if they're punished for violating them. The leaders of the civil rights movement understood that they were breaking the law, and that breaking the law has consequences; they were willing to accept those consequences. By the same token, if people believe that they have the right to violate copyright, they should be willing to accept the penalties associated with it.

Re:breaking the law

[PMuse]

Immoral laws can never be tolerated by an educated population, and there is nothing as immoral as claiming to own others, whether in physical or intellectual slavery. The mis-application of copyright as if property is as such immoral.
Oh, my blue bu^H^Hfoot it is!

Slavery is when you cannot act freely.** Intellectual slavery is when you cannot think freely. The existence of some one else's copyright does not prevent you from thinking freely. You can still write your own novel or sing your own song.

Copyright is not immoral in concept. Copyright laws represent us haggling among ourselves about what you can do with something some one else created. Can you perform it? Can you modify it? Can you duplicate it? And for how long? At what price?

Sure, copyright terms are too long right now. Sure, a rich public domain is a really good idea. Sure, current copyright law is not the result of any pure consensus vote, but has come about by a haggling process that is corrupted by money. But that only makes it wrong, not immoral. That only makes it restrictive, not slavery.

--Muse

**A better definition would have been, "Slavery is when some one else, without your consent, prevents you from acting freely," but the additional complexity is peripheral to the point here.

Re:breaking the law

[zenyu]

The leaders of the civil rights movement understood that they were breaking the law, and that breaking the law has consequences; they were willing to accept those consequences.

Martin Luther King Jr. understood that he was breaking laws when helping black people vote. He understood the consequences, but I think it is going a bit to far to say he accepted them. I think he was angry and felt that he was unjustly held for disobeying immoral laws. Read some of his letters from behind bars, he did not accept that the state had the right to enforce these laws against being black.

I think it would be best if we had some kind of compromise that kept copyright in existance, such as a 2-5 year term and reasonable penalties for infringent, like you get for disobeying the speed limit to various degrees. I think I should be able extract a significant settlement from commercial infingers and perhaps some portion of the fine levied on no-commercial infringers of my copyrights. No one should lose all their savings or their company or much less go to prison. But barring this sort of compromise I totally understand those making the arguement that as currently enforced these "IP" laws are as bad or worse than slavery. Especially patents, for obvious reasons, but copyright can as well effectively block unaccepted speakers from legally engaging in speech that addresses topics discussed in the last 150 years, as the reference material is all locked away. Barring a compromise we are much better off without these restrictions on ideas and other forms of discussion and thought at all.

BTW Can any lawyers argue whether conflicts between the first amendment and the copyright clause can be said to favor the first amendment? My understanding is that the bill of right came later in response to fear of the over-reaching power grab the states thought the constitution granted to the federal government. Couldn't the first amendment be interpreted with respect to the copyright clause as the 21st amendment is to the 18th (Alcohol). Right now I wouldn't make the arguement before the court, but if the corporate copyright holders over reach I think the reaction might be to see copyright as an uncompensated takings of property by the government that is given to a private monopoly in contradiction to its oblication to promote trade and in contradiction with the common good. In that climate the court might be emboldened to take a closer reading of the constitution. I think they would at the very least find the framers did not intend to set up the current system of heretitary ownership to the expression of ideas.

Re:breaking the law

[tds67]

You claimed that a band that doesn't do things the RIAA was will be unemployed.

Wah. Did I hurt your feelings?

Copyright infringement is a piss poor way of fighting RIAA. If you want to avoid RIAA, go buy used CDs and then send the money you saved directly to the artists.

No. I don't believe in buying used CDs. Here's why: When I buy a new CD, I am buying a license to listen to the music. But when I buy a used CD, I'm not. I want the ability to buy a license for an MP3 file, too. That's what this is all about. But I won't be able to do it without some sort of digital protest against the RIAA, because they are standing in the way.

I don't want to avoid the RIAA and the record companies. I want them gone, period. They are the problem. And I'm not sending the artists the price of a full CD just because they are unwilling to "band" together and help fix this problem.

Re:breaking the law

[Darth]

ok. so here you are talking about civil disobedience. Part of civil disobedience is you have to stay and take the punishment for openly committing the crime. You have to demonstrate the injustice and immorality with personal sacrifice.

If you arent willing to take the punishment in an effort to bring down the law, you should stay home.

Re:breaking the law

[Anonymous Coward]

Um, copyright law was used to prevent publication of a 'rewrite' of Gone With The Wind from the slaves' perspective (google up 'Wind Done Gone' by Alice Randall).

It isn't tantamount to slavery, but valuable voices are being silenced by these wrong & overzealous copyright extensions. And losing one's rights individually is just one perspective of this: all of us being deprived of our right to the public domain. Copyright is a gift, not a right, to the writer/creator. That's the perspective that makes me rank it as a grave issue. Think I'm wrong? Sing a song that doesn't fall under copyright. Hell, whistle it. You're breaking the law. That's absurd, but Mickey Mouse (tm) has made it so.

After I read the Eldred decision, I decided to stop supporting mass media. I will minimize toward zero any and all expenditures on entertainment. It is not a boycott (I've got kids who're too young to understand, and I make a lousy tree-huggin' hippie) but the industry is losing thousands a year from me alone.

Fear me, *AA. I'm the guy with a six-figure income that just became a closet pirate because you've pissed me off. Funny thing is, I know I'm not alone.

As for everyone that thinks I'm dirt for breaking the law (quietly), I also don't drive 5mph over the speed limit around cops, and when I hit an empty intersection and a red stoplight at 3am, I tend to only run it after checking for cops. My little Maswell-esque hierarchy says: Not-In-Jail outweighs Ethical outweighs Legal, and my ethics are offended by the Eldred decision, copyright extension as it stands, non-compulsory copyright, stupid devices (stoplights and DMCA encryption) and the way the price of CD's remain high after decades of decreasing costs.

Re:breaking the law

[God! Awful 2]

So you think we should have all been nice polite british subjects a few hundred years back and happily paid for our stamps and tea and all the other "good laws" of George the III?

Realistically, yes. The American revolution was started by a subversive mob who deliberately spread lies and propaganda in order to further their pet cause. The fact that these deliberate distortions still live on today, is proof of the American public's desire to believe them.

For example, historians now agree that the Boston massacre was not really a massacre. An armed mob confronted a small group of British soldiers who merely fired in self defense. The tax on tea was not unreasonable. What is often not mentioned is that the British had already removed 90% of the taxes on other dry goods. The revolutionaries could hardly complain about the quantity of tax they paid, so they started complaining about the principle of the thing. Hence, "no taxation without representation."

In many aspects, the American revolutionaries weren't all that different from /. readers, in the sense that they were extremists who believed in Libertarianism at any cost.

-a

Re:breaking the law

[Agthorr]

Slashdotters are hardly the first people to think the free flow of information is a right.

"That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move and have our physical being, incapable of confinement, or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
-- Thomas Jefferson

Re:breaking the law

[yakovlev]

BTW Can any lawyers argue whether conflicts between the first amendment and the copyright clause can be said to favor the first amendment?

Note: IANAL

In general, amendments are considered to overrule all earlier law, but the Bill of Rights is a special case. The Framers were the same ones who wrote the Bill of Rights, and they were in some ways a planned part of the original constitution even though they weren't enacted as such. As a result, the Bill of Rights is generally viewed as on par legally with the original constitution, and when there are conflicts justices usually try and view the work as a whole. This is part of why the first amendment argument was so weak in the Eldred case.

I declare

[smoondog]

Best interview ever....

-Sean

Re:I declare

[kryzx]

> Best interview ever....

I absolutely agree.
I think this is the pinnacle of the /. community phenomenon to date.

Agreed

[aptenergy]

Agreed. If some of those lawyers are indeed avid members of Slashdot, I'd like to hear their personal opinions on 1) The RIAA 2) The MPAA 3) SCO I would have also liked to hear what they think about the RIAA having permission to issue subpoenas without having to ask a judge. Doesn't this give control of the judicial system to a multimillion dollar corporation who has no interest in justice, but rather profits? Or am I barking up the wrong tree here?

Re:Agreed

[MilesBehind]

I think our gracious lawyer friends are too smart to do something like that. They're lawyers enough to know not to put their opinion on this lair of seething resentment that is slashdot. Being a reader does not neccessitate being a contributor, since any opinion they state could be taken as the opinion of the DoJ, which would get them in a load of trouble.

I'm sure they get a good chuckle out of all the clueless IANAL posts, tho.

Re:Agreed

[SwissCheese]

Maybe they are the one's contributing the IANAL posts.

Re:Agreed

[Dare nMc]

I imagine they have, it would be nice to know if they have slashdot user names, and what they are. Enquiring minds want to know. (and no, named as Anonymous Coward wouldn't help.)

It would at least be interesting if and what questions they submitted, because that is what they wanted to answer. (which I think is proper, but disclosing who they were would be even better.)

marketplace rights?

[markbo]

...As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

Sound to me like the marketplace is deciding whether or not I can exercise my fair use rights. If I have a fair use right, then I have that right whichever way the market place settles!

Re:marketplace rights?

[deman1985]

It seems that if there is indeed fair use for personal copying, then I should be able to copy the CD my any means necessary--including cracking any protection algorithms... If the record labels should be able to attempt to circumvent my rights with a system of their invention then I should have the same freedom to circumvent that system without litigation, regardless of what the DMCA says.

Re:marketplace rights?

[shotfeel]

The problem I see is that the marketplace isn't being given the chance to decide. Its not like the big 5 record labels are competing against each other to dermine which form (if any) of content control the consumer prefers. Its being decided by the RIAA, and the marketplace is being told, "This is how its going to be!". In fact we've got members of congress who seem willing to legislate that there must be content control and they will (with the help of the industry) decide what it shall be.

If they really want to see what kind of copy prevention the market will put up with, take a look at software. For decades, software companies have tried different schemes, but whenever there is any real competition, the market prefers no copy control, primarily due to the hassles involved (compainies dropping support for a product or going out of business, lost/damaged key disks, dongles that stop working, looking up word 3 in paragraph 5 of page 32 in the manual....).

Its only when there is a monopoly, when the control mechanism can be forced on the consumer, that these types of mechanisms can even be considered. XP product activation, anyone?

Re:marketplace rights?

[Anonymous Coward]

Its only when there is a monopoly, when the control mechanism can be forced on the consumer, that these types of mechanisms can even be considered. XP product activation, anyone?

Ahh, but due to the hassle of XP activation many OEMs are circumventing activation requirements (most likely per agreement with M$)

Even prosecutors have trouble determining legality

[kasparov]

It seems strange that we, as a people, would allow laws to become so complex that even the attorneys (who have been specifically trained in the law) would have trouble giving a specific "bright line" definition of when something is Fair Use, or not. How can a layman ever know if he is breaking the law if an attorney can't even say when a "line has been crossed"?

Interesting interview...

[JetJaguar]

But I can't help but think that we are talking to the wrong people here. The DOJ's main purpose is enforcing the law, not making it.

What we really need is a rethinking of IP law in general, which is more in the domain of the legislative branch of government than in the judicial. Unfortunately, catching the attention of those guys is a lot more difficult, unless you can contribute a couple of million to their campaigns.

of note

[Anonymous Coward]

of note

Re: Civil Law

[twoallbeefpatties]

IMHO, this was the most (unintentionally) interesting thing that he pointed out:

In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

Filesharing is a very grey area of the law right now. By taking cases to civil court rather than trying individuals as more serious criminals, the RIAA would only have to garner the support of half the jury rather than the full 12 (or something like that, I'm not completely versed in civil law). It may be harder for them to win serious precedents in this manner, but it will be easier to win single judgements, which fits their bill of scaring filesharers straight to let them know that they actually could be punished for trading.

Nice doublespeak.

[Anonymous Coward]

There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products.

IOW, we aren't going to get around to prosecuting GPL violations. Try civil court. Pound me in the ass prison is for people who infringe on big companies' IP, except for the occasional small fry we prosecute to maintain an appearance of equity.

~~~

Re:Nice doublespeak.

[arget]

The original point of the question, that OSS competes head on head (and often wins) with BigCo IP Software and deserves the same protection and attention from the law, was completely missed, either because these guys just don't get it or because they just don't care.

The implicit assumptions in the answer are that only commercial enterprise of whatever size are worthy. It does not address the position of OSS.

Now, go after SCO for their infringement of copyright in claiming they have the ability to license the Linux kernel for a fee, and I'll be convinced the DOJ 1) gets it and 2) cares.

Re:Nice doublespeak.

[panda]

Yes, but before they can even consider criminal prosecution for copyright violation, there must be a certain amount of "economic" damage, i.e. measurable in dollars. I believe it is even codified in the law as $X, but I could be mistaken.

Since, for the most part, Linux is given away for free and since not one of the copyright holders on any part of the kernel expects to receive a single dime in compensation for their contributions to the kernel from everyone who uses it, you can't very easily establish a monetary harm in the SCO case.

I know that "damage" caused by copyright infringement should not just be limited by money, but generally that is what it is about and that's how the legal system seems to operate. It's very hard to prove damages when someone takes something that you're giving away for free to begin with. It's why many in business have a hard time taking the GPL and people who develop under the GPL seriously. The only basis you'll have for assessing the damage is how much money they've made off of your copyrighted material.

Now, if still you want to sue SCO in civil court for violating your copyright on some portion of the kernel, then go right ahead.

Re:Nice doublespeak.

[Anonymous Coward]

Yes kernel hackers code for free AS IN FREEDOM! Let us put this in line with the DOJ viewpoint.

If a kernel hacker wanted to code for money then they could. They chose to make their code free, SCO are therefore involved in "theft". Just because somebody was not going to legally purchase some warez that they downloaded doesn't seem to factor into damages for criminal IP cases. Likewise because the kernel code is free, that doesn't mean that {$developer} would not have charged $1,000,000 dollars per license for his code.

There is your economic loss using similar logic to the DOJ. I've not even started on lost sales of distributors because of SCO FUD.

Re:Nice doublespeak.

[Anonymous Coward]

If a kernel hacker wanted to code for money then they could. They chose to make their code free, SCO are therefore involved in "theft". Just because somebody was not going to legally purchase some warez that they downloaded doesn't seem to factor into damages for criminal IP cases. Likewise because the kernel code is free, that doesn't mean that {$developer} would not have charged $1,000,000 dollars per license for his code.

But the kernel hacker didn't charge for his code. He explicitly gave it away. More fool him.

Simply amazing

[Lord_Dweomer]

Perfect spelling.........AND they read slashdot. We could all learn something from the DoJ lawyers.

Re:Simply amazing

[TheDukePatio]

We could all learn something from the DoJ lawyers.

twue, twue. He even avoided answering the same question twice then later stating that "he hadn't seen the previous question before.

Re:Simply amazing

[JanneM]

And they actually _read_ the material they are commenting on!

Re:Simply amazing

[Anonymous Coward]

Worse, they don't have to say "IANAL" ...

He's about to be slashdotted!

[Anonymous Coward]

He will be in a few hours. Once someone finds a website to submit complaints to the DOJ.

How many bytes in body, Roblimo?

[Anonymous Coward]

Or was one of the conditions of the interview that the number of bytes in body would not be displayed, because it is a criminal IP violation?

Civil Courts.....

[Grey Fox LSU]

In light of this article, it seems that the US Civil courts need to be cleaned up, making the burden of proof stronger to win a case, AND set limits on how much money on litigation a corporation can throw at a citizen, since a coroporation has much more money than a citizen can make in a lifetime. (Humm aka we need an "Even Playing Field Act")

Re:Civil Courts.....

[crusher-1]

Yes, the real issue AFAICT is the manner in which the civil courts have been hijacked by big business and corporations. This seems part and parcel to the "my lawyers are bigger than you lawyers" paradigm. In otherwords, large companies and corporations can afford to have a very skilled and large team lawyers, or afford to go to an outside firm that perhaps others couldn't afford to employ.

What happens is that it's not so much about evidence and merit as much as it is about injuctions, motions, and various (if not endless) court room tactics that win cases. Even more to the point is the manipulation of the system. It often appears to me that the clowns are running the circus. The lawyer often run roughshod in the court room. And then the issue of the jury. Take a technical issue, confuse and overburden a group of people with limited technical knowledge and then once you have them beaten down steer them to the direction or decision your seeking.

Take the pending case with Open Source's favorite problemed child. They (or more appropriately Boies) have opted for a trial by jury. Why? Simply put because they have a better chance of winning the case. Why? Becuase they rely on the fact that most people won't understand the technical and complicated nature of the case and therefore can be led by the nose to the decision desired - hence why someone like David Boies doesn't need facts as much as he needs to be adept at the art of persuasion.

Persuasion is a part of the equation, but the overlaying burden should be based on fact and evidence. Too often it is not, it's based on clever courtroom tactics and convincing a jury that your right - regardless of whether of not the evidence supports your claim. How often have we read or heard about a jury rendering a decsion that seems to fly in the face of the facts or evidence? All too often IMHO.

The manner in which the courts handle private cases (as in civil torts) has been entangle with contrary and confusing laws that it isn't about right or wrong, its about good lawyers verse better lawyers and how they can manipulate the courts and juries.

And the legislators that keep arguing that putting caps on damages will curtail this is sorely mistaken. Indeed, awards often outwiegh the crime. But often times it's more about the fact the the system is broken in many places and needs an overhaul - which would translate into actually having to put some thought and effort into this problem instead of throwing a quick fix solution like limiting damage awards as a way to thwart frivilous lawsuits.

Re:Civil Courts.....

[BobTheLawyer]

if you want to fix the US legal system you need to do at least two things: - introduce a "loser pays" rule, so anyone who sues and loses has to pay the winner's costs - abolish/cap punitive damages - if you win a case you should recover for your losses, you shouldn't be able to win a jackpot of millions of dollars

Oh Goodie!

[tds67]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

So I'll only have to be careful for a maximum of 60 months in prison while bending over for the soap, as opposed to 70 to 87. That's good news.

Re:Oh Goodie!

[allism]

Oh, so you only have ONE pirated song on your hard drive?

Pirate one album, you're gonna be doing about eight times the sentence for agg sexual assault.

Re:Oh Goodie!

[overunderunderdone]

So I'll only have to be careful for a maximum of 60 months in prison...

Sooo... tds67 you're ADMITTING that you are infringing on someone's IP. We'll be right over.

I TOLD you we read slashdot.

Re:Oh Goodie!

[pla]

So I'll only have to be careful for a maximum of 60 months in prison while bending over for the soap, as opposed to 70 to 87. That's good news.

I resisted hitting "reply" when I first read that in the DoJ's response, but since you commented on it...

I can't help but notice the phrase "for one count".

5 years per count of copyright violation.

Wow.

So, basically, taking an RIAA-esque interpretation of copyright law, all of us carrying around an MP3 mix CD could literally receive an 800-year sentence in a the federal pen.

But really, the DoJ insists that copyright doesn't carry stiffer penalties than rape or murder.


BS. Does anyone else notice that most of the DoJ's answers seem directed toward justifying their corporate pandering, while at the same time denying it?

I think their answer to the "do you have any technically competent people" basically covers it. They all but said "no". "Well, Steve does fairly well with those neato Microsoft Office programs, but when we have real trouble, like how to open a new type of email attachment, we call Jimmy up from the mail room to help us out". Yeah. Whatever.

Put simply, they have such a poor grasp of modern tech culture that they really believe a person might only have a single infringing file in their posession. Hell, I have more than that which I've downloaded accidentally, yet they don't consider the penalties a tad draconian.


The 60's started a generational war with the WO(s)D. Looks like we've kicked off the new millenium with a generational war on geeks.

Civil attorneys?

[sulli]

Don't expect them to be civil to this crowd!

Smooth :)

[banana fiend]

Well, I'm glad you asked that question

That's an interesting question

You're quite right

I liked the answers, and the fact that they pulled out 2 questions to answer from the unsubmitted ones. All in all, though...... smooth and political. The people involved in large legal issues like this are professional and capable, it's funny how different it can be to the slightly more... emotional opinions to be found on slashdot.

It's interesting that these two different worlds are engaging in dialogue

Re:Smooth :)

[nenya]

It should be smooth. They are lawyers, after all, and they're trained to be professionally smooth. But honestly, folks, what did we expect from a group of people that is by definition exceptionally literate and eloquent?

Slashdot is read by plenty of l33t d00dz whose idea of self-control is not pissing themselves. The results of comparing them to people with advanced degrees in ligsuistically technical fields are on the obvious side.

legally could copy, but legally can't...

[bigpat]

" While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them." ... so you have a legal right to copy stuff but the ability to do so is illegal. Like saying you have freedom of speech, but it is illegal to open your mouth. Thanks.

Re:legally could copy, but legally can't...

[DeltaSigma]

It's far more complicated than that.

Essentially what they're saying is, if you wish to legally copyright and distribute works where the copyright has expired, you should assure that these works are not obscured by a method which requires a tool. A tool which has only the single purpose of making the contents of this previously copyrighted work open to copying and distribution.

To put it another way: Don't buy copy-protected CDs!

Allow me to explain further: Suppose 90 years from now this (popular-band) cd which has DRM applied to it loses its copyright. This is ninety years in the future, so suppose you had some device which made perfect physical copies of the cd itself, down to the atomic level. It would be legal to copy and distribute that cd for free or profit. However, under the DMCA, circumventing the DRM measures used in that CD would still be illegal.

Re:legally could copy, but legally can't...

[IdleMindUI]

Another interpretation might be that you have freedom of speech, but it's illegal to sell megaphones, so you're stuck with a big paper cone.

Re:legally could copy, but legally can't...

[Mr_Matt]

Ahem...

Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls.

So the tool is only unlawful under the DMCA if it removes access controls. Just taking out copy controls seems okeydokey, which agrees with my reading of the DMCA (I use a strobe light. :)

Re:legally could copy, but legally can't...

[Telastyn]

No, that means that whomever writes the copy control removing tool cannot sell/transfer the tool. They *CAN* use it, and then sell/transfer the work which is now beyond the scope of copyright.

Furthermore, if the copy protection mechanism only protects that work, or only works that are no longer under the protection of copyright, you can traffic in a tool to remove them, as the DMCA only applies to tools who's primary purpose is to remove copy protection on copyright protected works. [and debatably, even if the copy protection mechanism still exists on copyright protected works, the tool can be traded, as it can be argued that the tool's primary use is on the now public domain works which happen to have that copy protection mechanism]

Re:legally could copy, but legally can't...

[McFly777]

Don't forget that given the extensions on copyright, there are extremely few examples of items which would apply under DMCA and yet have expired copyright (or ever will... thus Lessig's arguments in Eldred)

Re:legally could copy, but legally can't...

[aafiske]

Actually, I believe what is being said is that it is perfectly legal for you to circumvent the copy controls. What is illegal is for you to then sell or distribute your tool for circumvention.

Which makes it very unlikely that most people will circumvent it, seeing as not everyone has time to crack the newest encryption scheme, it doesn't make it illegal for them to try.

Re:legally could copy, but legally can't...

[homer_ca]

It was a long response that didn't really answer anything. He essentially said, yes it's a contradiction. It's not illegal to circumvent the access controls of a public domain work, but it is illegal to traffic in the tools of circumvention. It's not a problem now. If it gets to be a problem, Congress or the Copyright Office would probably do something or they might not. If you think it's a problem, you can always comment to the Copyright Office during the DMCA's periodic review.

Re:legally could copy, but legally can't...

[rhadamanthus]

Yeah, I was a bit irritated that my question wasn't answerable too. Basically, I think what he said amounts to, "Yeah we know that doesn't make sense, but it hasn't come up yet for review." Makes me wonder why congress doesn't think about these things before writing the laws...

---rhad

Re:legally could copy, but legally can't...

[Anonymous Coward]

I take it as saying you can write your own circumvention, but you can't distribute it once written. Is that kind of like you can build your own cassette deck to fair-use copy a tape, but you can't sell cassette decks to anyone else?

You have the right to say whatever you want, but nothing guarantees/requires that anyone hear what you say. (You have the right to make a speech to 20,000 people on the steps of the Capitol, but nobody is required to provide you a sound system or media access.)

Re:legally could copy, but legally can't...

[koehn]

You're missing the (admittedly subtle) point.

What he said is that while creation, possesion, and use of tools to circumvent copyright protection may be legal, it's still illegal to traffic (distribute, sell, etc.) in them.

So if you build the tool yourself, you're okay. Just don't give it to anybody else. Give a little bit to them. Have somebody else supply another little bit. And so on.

Individually, the bits don't violate the DMCA. Only when you assemble them do you have a tool, which you can use, but cannot distribute.

Get it?

Did he just say what I think he said?

[realdpk]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

So two counts of copyright infringement > aggravated sexual assault? How many counts of copyright infringement does it take to hit the maximum for aggravated sexual assault? 10? 20? Copyright infringement counts can add up pretty quick.

Re:Did he just say what I think he said?

[Toasty981]

I was thinking the same thing. I honestly don't know, so I'm asking: Are the alleged infringers the RIAA is targeting charged with one count per each song? IANAL, but it seems like that'd be the case, and that's obviously ridiculous.

Re:Did he just say what I think he said?

[adturner]

Yes, that's exactly what he said. Somebody mod this parent up.

Re:Did he just say what I think he said?

[Anonymous Coward]

Not sure, but I think the penalty system works differently. The maximum sentence is 60 months regardless of the severity of your copyright infringement. The law can't nail you for 100 years of life imprisonment for 20 maximum counts of copyright infringement. However, aggravated sexual assault charges can be stacked to increase the sentence. Could be wrong; IANAL.

Re:Did he just say what I think he said?

[BobTheLawyer]

most unlikely sentences would be imposed consecutively as you suggest. If you have 100 infringing MP3s you can be pretty confident you won't be jailed for 500 years.

Re:Did he just say what I think he said?

[Jester99]

Also, what really counts as "one count of copyright infringement?"

If I copy a CD, I've infringed on copyright... so, that's one infringement.

But if I copy an MP3 file, is that one infringement? A CD of 16 tracks should be 16 counts then, shouldn't it?

If I copy half of an MP3 file, I've still infringed upon someone's copyright (assuming I don't legally own the MP3)... so, wouldn't copying the whole file really be two counts? But why even stop there? It's been ruled that four notes of a song constitute a complete work...

So, how does one define a count of infringement?

Re:Did he just say what I think he said?

[Anonymous Coward]

None ever tried to do this kind of math. Are 2 rapes == 1 murder? Who knows? It all depends. It's not that simple, as 1 2 3

Re:Did he just say what I think he said?

[Linux_ho]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

So the sentences for copyright infringement aren't WORSE than for rape. In fact, they're a whole 30% shorter!!! That's justice for ya. The rapist will only have the opportunity to ream the copyright infringer's ass for FIVE years out of his seven year sentence...

Re:Did he just say what I think he said?

[tburkhol]

So two counts of copyright infringement > aggravated sexual assault?

Not exactly. Two of the worst possible kind of copyright infringement can get you more jail time than the least serious rape. It's also possible to get zero jail time for multiple counts of copyright infrignement and life for a single count of rape.

Always important to notice modifier words like "maximum" and "minimum".

Re:Did he just say what I think he said?

[Anonymous Coward]

if I copy an MP3 file, is that one infringement? A CD of 16 tracks should be 16 counts then, shouldn't it?

You wouldn't be charged seperately for each track of a complete CD as the individual tracks (or fractions of tracks) are included portions of a greater work.

Re:Did he just say what I think he said?

[aahzmandius]

Yes, but on most (all?) occasions, time sentenced on multiple counts is served concurrently. That is, if you've been sentenced to 10 years on each of 5 counts of charge X, you'll only spend 10 years (less time for good behaviour/we just want to let you go early) total, not 50 years total.

Re:Did he just say what I think he said?

[Anonymous Coward]

do you not understand the words "maximum" and "minimum"?

Re:Did he just say what I think he said?

[Linux_ho]

do you not understand the words "maximum" and "minimum"?

Do you not understand the words "hyperbole" and "humor"?

Theft vs Piracy

[GillBates0]

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

In almost every discussion on /. regarding RIAA and the like, somebody comes up with the point that file-sharing is not theft, since nobody was actually deprived of the property.

I guess that's valid, only when you look at it from the customer's point of view. Though none of the customers were deprived of music as a result of file sharing (as opposed to stealing a CD), the artist was deprived of a certain amount of money which he could've made as a result of selling the music. So it *could* be labelled as theft, since the artist was deprived indirectly as a result of filesharing.

Not that I'm opposed to filesharing, but I think most of the questions (especially the one regarding theft and piracy) were answered pretty well.

Re:Theft vs Piracy

[de Selby]

This music piracy "theft" is different in that any losses are just guesses of intent.

If I download a CD that I wanted to buy and then don't buy it, that's a loss of the value of the sale. I'd say this one's clear cut.

If I download a CD that I wasn't going to buy, then what?

Re:Theft vs Piracy

[DigitalReligion]

"the artist was deprived of a certain amount of money which he could've made as a result of selling the music. So it *could* be labelled as theft, since the artist was deprived indirectly as a result of filesharing." Yes, but would people still purchase the music if it wasnt free? My guess is probably not. It's pretty obvious that people act on free things not only more than costly items, but they might not buy the item at all if it were not free. This is like saying Burger King is a thief from MacDonald's since they "stole" their potential customers using the same business plan.

Re:Theft vs Piracy

[rking]

Though none of the customers were deprived of music as a result of file sharing (as opposed to stealing a CD), the artist was deprived of a certain amount of money which he could've made as a result of selling the music. So it *could* be labelled as theft, since the artist was deprived indirectly as a result of filesharing.

That doesn't make it theft. If I smash all the windows in your house then I've committed a crime and it's probably going to put you at a financial loss but it isn't theft.

If I take something that belongs to you with the intention of permanently depriving you of it, and it has zero sale value then I have committed theft. If I leave a million dollars when I take the item, but still without your permission? Still theft, though you might choose not to complain :)

Lots and lots of things cause economic loss, some of them lawful and some of them unlawful but that isn't enough in itself to make any of them theft. Theft is about taking the property of another with the intention of permanently depriving them of it.

His comments about copyright infringement potentially hurting the victim more than "traditional theft" was especially glaring. If I burn your house down then that's probably going to hurt you pretty badly and if you're in it at the time then almost certainly more so than "traditional theft" but that doesn't mean it is theft. "Theft" isn't a measure of harm, it's one particular, clearly defined, offence.

Re:Theft vs Piracy

[ScuzzMonkey]

Ah, but it brings up the thornier issue of, would the person have bought the product at the price available if it were not available for free? This is a bit like the Department of Pre-Crime, isn't it? Although there are definitely sales lost to shared files, there is no way to prove in any specific case that it resulted in a lost sale. In our system of justice, you do have to actually commit the crime before you can be convicted of it (note that conspiracy to murder and murder are different charges and carry different sentencing guidelines--appropriately so).

Now, not buying an album isn't a crime, but it's using the same logic that I object to the theft analogy for filesharing. It assumes something that should not be assumed in our system of justice--that a downloaded file is equivalent to a lost sale in every case. I know that's not true for me personally--I download a lot to check something out, end up deleting half of it, and never would have checked the artist out in the first place if I had to shell out $16 for a CD. I think many, if not the majority, of filetraders are like that.

Which is not to say it doesn't violate a law--it does--but it's not a law that at all resembles theft. The basic intents of copyright and property laws are completely different. Laws against stealing property are designed to protect an individual's right to own and hold property; laws against infringing copyright are designed to promote the public's right to access intellectual works and ideas. Copyright allows the holder to pad his pockets only as an incentive to release the work, not as a basic right like property ownership.

Now, in the lawyer's defense, he was talking about piracy. I don't know about him, but I view piracy and run of the mill filesharing as separate issues. This guy is used to prosecuting criminal cases, as he says repeatedly--those are usually when someone is into the game for profit, which is what I think of as 'piracy'. That is certainly closer to theft, because it does have the intent of depriving legitimate sales by trickery. Phrased more carefully, he may not have drawn the same analogy for some kid sitting in his parent's basement checking out the latest Britney song.

Laywer Speak - Translated

[nurb432]

The entire thing was mostly a long winded way of saying 'we are coming to get you, little people', and 'get used to it, as this fight to take away your freedoms and privacy has only begun'.

Re:Laywer Speak - Translated

[DeltaSigma]

Actually, they mentioned numerous times that most of what they deal with are extremely serious offenses where the copyright holders intellectual property is quite obviously violated. If you actually read the thing you'd have noticed that they're not to blame for the attacks on the "little people." Those matters are settled in civil courts, not criminal courts.

Re:Laywer Speak - Translated

[BitwizeGHC]

These are federal employees who sincerely believe that they are doing their bit to enforce legitimate laws that protect every day people.

They need to be educated, not demonized.

Baloney

[Anonymous Coward]

"For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months."

What a load of crap. Why would someone be charged on one count of copyright infringement? In his own words, they've found people with 20,000+ infringements. That would jack someone well into the rapist sentence zone.

Re:Baloney

[Anonymous Coward]

No, that would jack someone into the "old sparky the electric chair" zone.

Unimportant.

[Anonymous Coward]

People who are passionate about fundamentally unethical laws are still...

you guessed it: Blackhearted Bastards.

No Other Answers....

[Caraig]

I suspect we'll be hearing a lot of slashdotters complain about these answers. A lot of them sound like pretty standard party lines and canned answers. Let's be honest here: they're representatives of a large bureaucracy, not policymakers. There's no other answers they could have given.

However, this interview was not a total wash. In particular, I found the fact that they consider the copyright infringement of music downloading to actually be honest-to-Congress theft to be very fascinating and intriguing. This is the words from the "enemy," boys and girls. Send your laywers to take a gander at this article and consider their court arguments very carefully in this light.

You are being heard

[Entropy248]

Blockquoteth the lawyers:
Our interest in technology explains why so many of us are frequent Slashdot readers, and why working at CCIPS sparked our interest in the first place.

At least our side of the debate is being heard...
[insert obligatory /. reader joke here]

Re:You are being heard

[Anonymous Coward]

That also explains where all the Gay Nigger posts have been coming from.

Re:boring

[mjmalone]

In soviet russia the copyright office works for you.

I want to move there!

Great Interview - Here's a suggestion

[isoga]

Well answered. Lengthy, and a little dry but guess what? That's what IP is all about!

It does seem though that although they are lawyers who are interested in technology and how it intersects with the law, and that they research tech issues etc before a case, that they don't have enough of a tech background / training.

I propose that they should find more avenues to have contact with 'techies.' They should have opportunities to attend some programming and compSci classes, so that when someone tries to invoke the DMCA on some trivial (eg/ ROT13) 'encryption' mechanism, they understand just how much the wool is being pulled over their eyes.

Similarly, they should talk to FOSS project leaders, try out leading FOSS tools, try running their own LAMP powered website, etc.

I think it's key that these people see how empowering FOSS software is and the resultant benefit to society, before they put forward copyright cases, as after all, the purpose of copyright (and dare I say it, all laws) is to benefit society.

Dave
www.davidgoodwin.net

Paid for? [OT]

[ldspartan]

However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

Did anyone else pick up on this? If so, does /. pay for these interviews, or is the interviewee just using a common turn of phrase?

Not that it matters terribly, but I think it would add to the context of these things if we knew that slashdot paid for interviews. -- lds

Re:Paid for? [OT]

[Anonymous Coward]

It's just a figure of speech.

Re:Paid for? [OT]

[RestiffBard]

1. it's a clever turn of phrase

2. They do work for me and the other citizens of the United States. I would like to think that if a bunch of lawyers from DOJ are taking a few hours to answer some geek's questions that they at the very least do a proper job of it.

old myth: N illegal copies == N lost licence fees

[divec]

The O'Leary writes:

One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further.

This doesn't show that the business has lost out due to piracy. There has only been a loss if someone who would otherwise have paid for a legal version has instead obtained an illegal copy.

That might well have happened in this instance. But it's important not to just assume that there's been a huge financial loss, and severe adverse effects on this Midwest business, merely because, say, 100 illegal copies have been downloaded.

If only two of the downloaders would ever have paid the price for a licensed version, then all that has been lost is the price of two licences. The other 98 downloads have done no financial damage - sure, they're illegal, and you might well argue immoral too, but they haven't affected the business's income at all.

The same thing happens when someone releases a piece of free software, sees that he has 100 users, and thinks, "Hey, if only I'd made it proprietary and sold licences for $50, I could have made $5,000". In both cases, it's quite possible that 98 of the 100 would never have even considered paying a fee for the software.

Re:Even prosecutors have trouble determining legal

[gila_monster]

I'm not sure it can be helped, really. Some situations cannot be definitively described. This is why much of the law depends on precedent (decisions made by courts) to provide interpretation of legislation. Legal systems never become less complex. There is a game called Nomic (or Agora or a number of other variants) that demonstrate this quite well.

And really, given the complete lack of knowledge some legislators display, we we really WANT them to try to draw a "bright line?" I'm sure that won't end well.

How come no one is screaming about this?

[Elwood P Dowd]

The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Well, I guess it's codified in law. This is why Kevin Mitnick got charged with doing billions of dollars of damage. I wish we thought of asking them about the legitimacy of calculating damages by multiplying the number of copies and the suggested retail value of the stuff being copied.

Er, not the legitimacy, (Apparently it's legitimate.) but rather the morality. Doesn't there have to be a more realistic manner of calculating damages?

Re:How come no one is screaming about this?

[Toasty981]

Wasn't there a piracy report not-too-long-ago that screamed some ridiculous number like $500 quadrillion dollars lost due to piracy, but upon investigating their methods, it turned out the number was based on "Number companies expected to sell" - "Number actually sold"?

When this kind of awful estimation becomes common in court, like the DirecTV guy who has to pay $500/month for the rest of his life, it will set precedent to allow this kind of crap to continue unchecked.

Re:How come no one is screaming about this?

[smoondog]

Uhh, no. I think here they are referring to the total value of the software on the computer. Usually, people on the /. complain about N copies * Value of N = total value of loss. This is different, they are summing up the total value of the software/media on the computer *not* the loss incurred by copying it some number of times. In my opinion, this is the totally appropriate way to deal with this. Anyways, it always strikes me as kind of funny that people complain that they traded a bunch of stuff, then get hit with the loss = N * value argument in court and whine. Trading software/media is not fair use under any definition for most purposes.

-Sean

Re:Even prosecutors have trouble determining legal

[Planesdragon]

That's just how the law works. There are a whole bundle of things--like whether a particular work is derivitive of another or not--that are amazingly grey areas.

Pay for legal insurance, and when you have a serious question, go ask. The first step in most grey-area cases is an attempt at non-litigous settlement--when you get a C&D, decide if you want to fight or not; if not, you may get off with nothing more than an agreement to not do the grey-area thing anymore.

In general, follow the laws you know about (taxes, speed limits, etc.), don't try and hurt anyone, and repsect the rights of others. I'll wager that, baring incompetence ("your bad driving kills someone"), you'll be able to go your entire life without seeing the inside of a courtroom, much less getting sued.

('course, IANAL...)

You fell for it it appears

[nurb432]

Dont belive what you hear from an governmental attorney. They ARE out to get the little people ( and their money and their rights ).. just cant admit that directly.

And i DID read it.. for what it really meant. Not just for its propaganda.

Re:You fell for it it appears

[DeltaSigma]

Alright, sure, you gave a friend a copy of a song once so he could see if he liked it. And these guys are out to get you. That's all they want. Their relationship with their wife has atrophied to null because they won't even associate with them. They're either at their desk tracking down more evidence so they can get you and throw you behind bars or they're at home masturbating to the imagery of you behind bars. It's all they want it's all they think about. Look, if you think some guy with ten thousand different isos of industry standard software such as Photoshop, Lightwave, Amaya, 3DSMax, Flash, and so on and so forth that has an FTP open requiring you to upload some other big name iso in order to download a few from him, if you think this guy's average joe american you're really off... That's the difference here. Sure everyone has traded a song, downloaded a copy of software, and made copies available to other people. However, most people don't do so on such a scale. A criminal scale.

Slashdot and the Daily Show

[Carrion Creeper]

This interview reminds me of the daily show:

A medium which is usually about satire (or complaining in slashdot's case) ends up putting forward an excellent interview. Witness knucklehead Jon Stewart asking reasonable questions to senators and the like.

It certainly hints at a new media/political reality, and good things for slashdot's future.

Re:Slashdot and the Daily Show

[Toasty981]

It certainly hints at a new media/political reality, and good things for slashdot's future.


*Gasp!* JonKatz got a new UID!

Re:Slashdot and the Daily Show

[psxndc]

The Daily Show is probably the most honest "news" program out there. And yes, JS has done some amazingly, disturbingly even, insightful interviews with people that most Daily Show viewers would never even hear about (e.g. a young Congressman from Tennessee who I guarantee will run for President some day but whose name escapes me, Martha Burk, chairwoman of NCWO) and well as people that most should probably pay more attention to: Madeleine Albright, Sen. McCain, etc, etc. YMMV, everyone has their own opinion. The good thing though is that they bring politicians and authors out from behind their works and engage them in real dialogue. Awesome show.

psxndc

Re:Slashdot and the Daily Show

[InfoVore]

The Daily Show is probably the most honest "news" program out there.

That is because good comedy is about looking at the truth from a different point of view.

The Daily Show tends to use the old standard comedy viewpoint: "the patients are running the nuthouse". Given the state of the world and politics at any given moment, its probably the best way to pierce the veil of spin and BS associated with most 'news'.

Since it is nominally a comedy program (a "Fake News Show" as John Stewart sometimes calls it), it allows their guests to relax and frequently say what they actually believe, as opposed to the "real news" spin version. That plus the fact that Stewart will jovially push his guests on topics they really don't want to talk about ("hey we're not a real news show after all", "you can tell us, its just me and the three home viewers", etc), he often gets the truth to peek out from the clouds. That plus the show's eagerness to mock all sides equally makes for one of the most balanced news/interview programs around.

Unfortunately, they are starting to do more of the gross-joke and "mock the rube" type special feature stories and are spending less time on the core "here are the headlines" pieces. Even so, it still beats any "real" news program I've seen in years.

I think it is the best general news program on US TV, bar none. It is the only one I watch regularly. It is the only one that is truly fair to all sides of an issue, because they mock everyone for their stupidity equally...

And sometimes its even funny.

Cheers,

"And now, for your moment of zen..."

I.V.

Another question...

[Shoten]

"How many possible ways can you dodge allegations from multiple sources that you exclusively protect large commercial organizations or large groups of smaller commercial organizations, and largely ignore individuals?"

O'Leary:
"We determine this based upon a number of factors..."

The question they missed

[NetDanzr]

Very interesting read; kudos to the lawyers who had the courage to face the angrycrowd here. However, they seem to have ignored one of the most common questions in the original debate: that of fair use.

While they touched on fair use briefly, I remember others asking more direct questions concerning faire use, such as the rights to convert a copyrighted material into a different format or the discreptancy between fair use and many modern EULAs. I'm wondering whether ignoring these questions was deliberate or not...

Re:The question they missed

[Anonymous Coward]

A EULA is a contract completely separate from copyright, so it doesn't apply.

As for different formats, the issue isn't that it's illegal to perform the conversion. The issue is that it's illegal to distribute the tools to do it with. You can write your own.

But that's like making the distribution of motorized wheelchairs illegal, but telling the handicapped person he can make his own.

As a side thought, it might be possible to make decoding tools available, so long as the tool is written from scratch every time it's transported. It depends on the definition of the word "distribution"

Re:The question they missed

[NetDanzr]

I may have not been too clear in my previous post. I still remember a post where the writer asked whether it would be legal do download a digitized version of a product (song, book), if you own the physical copy of that book. While I understand that it's illegal to offer such downloads, this concerns only people who download.

As for EULAs, I'm aware that they are different from copyright law. However, the copyright law implicitly lists certain actions under fair use, while some EULAs disallow them. I was always curious which takes precedens in this case, and so did another writer who asked this question in the original discussion.

Re:Even prosecutors have trouble determining legal

[reallocate]

Having been in the position of looking for that "bright line" more than once, I'll agree that it can be frustrating.

However, if you impartially apply the standards laid out in the fair use clause, step by step, you ought to be able make a reaonably clear determination. When I've brought in lawyers, that's what they've done.

Of course, be ready to argue your position of the copyright holder disagrees. Remember, a fair use challenge will be a civil case, and you'll need to convince a judge that you're right. If your actions are in keeping with other actions traditionally considered fair use, you've nothing to worry about. If you are doing something new or different, that's a different matter.

Favoring Big Business?

[Daniel_Staal]

In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

That sounds fair, until you think about it:

When is proscution going to be the most of a detterant? When it is publicised. And it is the big businesses that will publicize it.

When will prosocution lead to finding more cases? When there are multiple products being infringed on, or there are large networks of products. Again, this favors 'helping' big business because they are the ones who have large product lines, and who have spread their demand over a large area.

The criteria aren't totally flawed, of course. They just have more of a bias then is immediately obvious.

Re:Favoring Big Business?

[smyle]

And it is the big businesses that will publicize it.

Not necessarily. Just like with Enron, the media likes seeing big businesses screw up (at least, for purposes of their ratings).

Where you're right is that you won't see a case of John Q. Codemonkey vs. Joe College prosecuted.

making an uncopyable product...missed the point

[Anonymous Coward]

Regarding whether it's a violation of fair-use rights to make an uncopyable product:

As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

If someone creates something that I need, but makes it uncopyable through legislation (DMCA), then that's a violation of my fair-use rights since by law I'm not allowed to find a way to copy it anyway. Or am I missing something here?

qualifications

[spamchang]

i didn't get a clear answer on their tech qualifications for the job. 'we're interested and we have the background' doesn't really answer the question. reading /. once a week for 2 hrs doesn't count either.

Legal Circumvention Tools

[Bob9113]

While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

The answer is clear then. From now on all circumvention tools must be marketed as "intended for use only on works which have entered the public domain".

This is exactly the same way in which a lawyer can give you legal advice and say, "this is not legal advice" and have no liability. It's the same way in which herbal supplements stay, "Promotes Alertness (this claim has not been verified by the FDA)" and get past FDA labelling restrictions.

That is, it is not about acting within the spirit of the law - that would be true if we had a common law system. It is about acting within the letter of the law.

Re:Legal Circumvention Tools

[edwdig]

I don't think that excuse would work. Keep in mind the length of copyright. If you bought a circumvention tool marketed as "intended for use only on works which have entered the public domain," you'd be dead before there would be anything you could legitamately use it on. The RIAA or whoever would argue that the sole purpose of the tool is to commit piracy, and they'd probably win. How will you defend yourself? "I bought this so that my great grandchildren would legally be able to make a copy of NSync's CDs." I don't think a court would believe that one.

Re:Legal Circumvention Tools

[protoshoggoth]

As someone pointed out, e-book publishers are already offering locked-down versions of novels from the 1800's. So such a thing would have a use right now.

Re:Legal Circumvention Tools

[zakureth]

Even worse. From my interpretation, it still says that traficing the tools is illegal in any case. It's just their use that would be legal against public domain works. So you could use the tools, but it would still be illegal for anybody to give them to you.

Calculating the value of pirated goods

[bentcd]

In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars.

The way I read this, the means used to calculating the final value is something along the lines of adding the retail value of each of those 20,000 titles for the total. This method seems a bit suspect. I wonder, if I made a piece of semi-useful software, put a $1mill price tag on it and made sure it was reasonably easy to pirate, could I just wait a while and then start successfully suing anyone who copied it for everything they've got?

I can't help feeling there needs to be some sort of independent agency that would assess the actual value of pirated goods. The copyright owners are clearly biased and I doubt most courts have the competence to do it.

Re:Calculating the value of pirated goods

[rabel]

Actually, according to the response, the calculation of the final value would also be multiplied by the number of times each title was downloaded. The DOJ would have to prove each instance of downloading, but each one they could prove would be added into the grand total.

I can't say that I disagree with the DOJ's answer. There has to be some method of determining the cost and this is the most obvious method.

Sorry, your $1mill idea to sue anyone who downloads your product has already been copy-righted by SCO.

Interesting but...

[Raindance]

Interesting answers- these guys seem like they've thought out a great deal of these issues.

However, did anyone else notice they still use words such as 'piracy' and 'intellectual property' instead of more conceptually correct words such as copyright infringement or copyrighted work?

I have to think that unfortunately this office is still largely a tool for and of the copyright mafia, if these are the terms they think in.

Re:Interesting but...

[Telex4]

However, did anyone else notice they still use words such as 'piracy' and 'intellectual property' instead of more conceptually correct words such as copyright infringement or copyrighted work?

I have to think that unfortunately this office is still largely a tool for and of the copyright mafia, if these are the terms they think in.

Of course they're exactly a tool for the copyright holders, be they large corporations or small businesses. Size shouldn't matter here. Let's stop being silly and pretending that the DoJ in this case should do anything other than uphold the law. If the law is wrong, then it will take sufficient civil disobedience and/or some interesting law cases to overturn it.

That said, you are very astute to pick out their abuse of terms like "piracy". The RIAA, MPAA and BSA have done such a good job of making copyright a one-way agenda (protecting property, rather than protecting a system that can be of huge benefit to society) that the first struggle is to redefine the terms in their original forms.

Interestingly, in the UK some mainstream journalists have started calling Copyprotected CDs "corrupt CDs". The backlash is starting, at last.

Re:Interesting but...

[HiThere]

Not only do they use them, but the defend the use of them as reasonable.

Doesn't make me think more highly of them. Nice presentation, though. You can tell he frequently wears a smart suit.

Re:Interesting but...

[RestiffBard]

hey genius, did you notice they also refrained from using phrases such as "party of the first part". they were answering generically worded questions with generically worded answers. But, when the question cited U.S. Code they all pulled out their big ol' U.S. Code book and cited the stuff back like a lawyer.

I have to think that had our questions been even better laid out (they were good questions mind you) that their answers would have been equally unequivocal and would have met your high standards.

Re:Interesting but...

[Alsee]

Yeah, he used the phrase "intellectual property" thirteen times even though it wasn't used once in any of the questions. But most disturbing is his use of "property" at the end of #6. He actually says it is property that is being stolen when he says that the victim "retains his property".

-

Re: Civil Law

[Kierthos]

Civil law requires that there is a "preponderence of evidence", while criminal law requires "behind reasonable doubt".

Basically, it works like this for preponderence of evidence... If it is more likely then not that a punishable action occured, then the burden of evidence has been met. This is why, even though OJ was found not guilty in a criminal trial, the exact same evidence was enough to sink him in a civil trial.

Now, it various from jurisdiction to jurisdiction, but in South Carolina, a civil jury is anywhere from 6 to 12 people. No idea how they determine the number. Perhaps it's based on the monetary or compensatory judgement sought. Other states have their own requirements on the size of the civil jury, and a larger jury can work for or against you.

Best advice, as always... don't get caught.

Kierthos

Am I the only one who finds this disturbing?

[yakovlev]

Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.

Although I don't know all the details of this case, this description seems like the case is setting a disturbing precedent. I don't like the idea that I can break another country's laws while sitting in my own living room, and that that country can then have me extradited from where I live, without my ever setting foot on their soil. This sounds a lot like the Skylarov case, only in this one they're extraditing him without his ever coming to the US.

It's one thing if the US attorney's office says "hey, we noticed that this guy is committing crimes in your country, and you might want to prosecute. Here's some evidence." It's quite another to say "this citizen of yours is doing what is considered a crime in our country, and we want you to hand him over to us for prosecution."

Re:Am I the only one who finds this disturbing?

[gerardrj]

This has been going on for years, and it's only getting worse.

It is the apparent goal of the United State to have our laws apply to every person on the planet. In a few more decades, we'll start issuing traffic tickets to every driver in Europe that drives on the left side of the road in direct violation of U.S. law.

Re:Am I the only one who finds this disturbing?

[Garfunkel]

I think the not knowing the details to the case is actually an important thing here. It's possible (in fact likely)that he or a member of his group were using servers based on US soil to distribute the warez. That would make it much more clearly a violation of US laws and make extradition reasonable. If all the guy was doing was running a warez server in Australia, then no, extradition is stupid and not somthing that should be pursued.

Re:Am I the only one who finds this disturbing?

[daveo0331]

This is quite disturbing, and it ties in to the idea of the USA wanting to impose its values/laws on the rest of the world. It's like when we "certify" whether or not we like another country's drug laws. Who are we to tell some European country they have to throw their citizens in jail for smoking pot?

Going back to the extradition topic, imagine Hugh Hefner being extradited to Saudi Arabia because some guy over there was looking at playboy.com. It would never happen. Americans don't have to obey Saudi Arabian law (unless they actually travel to Saudi Arabia of course); why should Australians have to obey US law? (Exception - if something is illegal in both Australia and the US, I wouldn't have a problem with it).

Re:Am I the only one who finds this disturbing?

[RestiffBard]

this citizen of yours is doing what is considered a crime in our country, and we want you to hand him over to us for prosecution

er, the extradition would never happen if both countries didn't agree that the offense was in fact a crime.

also, just because a crime is done in a virtual space doesn't mean you can't be hunted down and tried in real space. if geography doesn't matter on the internet why should it matter in the real world?

Re:Am I the only one who finds this disturbing?

[whatch durrin]

It is the apparent goal of the United State [sic] to have our laws apply to every person on the planet. In a few more decades, we'll start issuing traffic tickets to every driver in Europe that drives on the left side of the road in direct violation of U.S. law.

Oh how quickly any thread on Slashdot turns into a "Bash the USA" party.

If someone sits in another country and willfully performs an action that, according to US law, violates an American citizen or American company, the DoJ should attempt to pursue that person.

In the end, it's up to the country where the person resides whether (s)he will be extradited or not. US attorneys don't prosecute the person in their native country.

Do you believe there is no situation where a non-US citizen should be pursued, and attempts should be made to extradite them back to the US for prosecution?

Re:Am I the only one who finds this disturbing?

[Alsee]

Do you believe there is no situation where a non-US citizen should be pursued, and attempts should be made to extradite them back to the US for prosecution?

Sure, if someone commits an act IN THE UNITED STATES.

If someone commits an act IN AUSTRAILA then only Austailian law has jurisdiction. It is not a crime unless it violates Austrailian law. And if it is Austrailian law that is violated then it MUST be tried by an Austrailian court.

You CANNOT violate US law unless you commit an act under the jurisdiction of US law.

Ziare could pass a law imposing the death penalty for farting. But Zaire law and Ziare court have no jurisdiction unless you fart in Zaire.

-

Re:Am I the only one who finds this disturbing?

[Alsee]

Exception - if something is illegal in both Australia and the US, I wouldn't have a problem with it

But if the crime occurred in Austrailia then it belongs in Austrailian court even if it was infringment of an American's copyright. It would be up to Austraila to decide whether the American actually has copyright protection on the item in question, the extent of that protection, and whether or not it was actually infringed.

-

Re:Am I the only one who finds this disturbing?

[Alsee]

just because a crime is done in a virtual space

Nonsense. The act occurred in Australia.
If he violated Austrailian law then no problem, prosecute him in Australian court.

Extradition is for people who violated a foriegn law while under the jurisdiction of that law. If he had come to the US and commited the act then extradition would be appropriate even if it was not a violation of Australian law.

-

Re:Am I the only one who finds this disturbing?

[whatch durrin]

From my first post, here's what matters:

In the end, it's up to the country where the person resides whether (s)he will be extradited or not. US attorneys don't prosecute the person in their native country.

Re:Am I the only one who finds this disturbing?

[Alsee]

So what if Australia chooses to extradite him? Any and every court in the US should immediately dismiss the case for lack of jurisdiction over the act in question.

Though I guess the Feds could avoid that result by not bringing him into court at all and just shipping him straight to Guantanimo bay instead chuckle.

-

Re:Am I the only one who finds this disturbing?

[yakovlev]

if geography doesn't matter on the internet why should it matter in the real world?

Because I should be able to say "the Chinese government are all dorks," on the internet and expect not to get arrested so long as I never enter China.

(Not that I'm actually expressing an opinion here, this is just a hypothetical.)

The problem is...

[BitwizeGHC]

The problem is that until recently, theft had a specific, legal meaning: taking possession of property while depriving the owner of same. Look it up, it's in black's Law Dictionary.

If depriving someone of money they expect to make constitutes theft, then theft suddenly becomes expanded to ancompass a range of things. Blocking banner ads is theft. Skipping commercials is theft. (Remember the Turner Broadcasting guy?) Buying only sale items from a supermarket is theft. Sure, you bought and paid for every item, but you're still stealing: you're stealing the money they expected to make by selling you more items at full price than you paid for on sale.

And no, IANAL.

Re:The problem is...

[Anonymous Coward]

Agreed,

Although I was pleased with the majority of the answers that were given, I think that the lack of riguour with the definition of 'Theft' was actually damaging to the credibility of the DoJ.

In this particular instance, I believe that the explanation tended to project a view which protects the corporations rather than ensure correct understanding of the law, as currently written.

Re:The problem is...

[Anonymous Coward]

I had a run in with that 'sale item' issue. At a local Burger King my girlfriend ordered a Whopper and fries. Well they had a special that was promoted on tv and such, 'free fries with the purchase of a burger and drink' or something similar.

When we asked why we got charged for the fries, the employee said his had manager told them to only give the special to persons who ask up front. Of course we got the item taken off of the bill after a bit of a hassle.

Then the manager had the audacity to say "So I'm going to get my money right? You'll be back after this promotion expires and I'll get paid for those fries." What a jackass.

Of course I wanted to beat some sense into him right there, but restrained myself. I did however refuse to go back to that particular restaurant for months.

Re:The problem is...

[cpeterso]

When you use a coupon to buy an item at a discount price, your sales tax is computed on the ORIGINAL sales price, not the discounted coupon price. The gub'mint does not want you to steal its PROSPECTIVE sales tax revenue.

Re:The problem is...

[Anonymous Coward]

You miss the point. This is not about "depriving someone of money they expect to make", but rather using someones intellectual property without paying for it, and in that manner, depriving them of money they expect to make". Surely you can see a distinction between that and any of your examples (blocking ads, skipping commericals, buying sale items).

Re:Even prosecutors have trouble determining legal

[overunderunderdone]

The law is not vague because it is complex, it is vague because it is fairly simple. It's a few short lines that say "If you're only copying part of it and you're doing it for a review or for educational purposes" then it is fair use. In most cases it's obvious whether something is fair use or not. A few excerpts in a review is fair use. Quoting the whole thing and adding a forward and calling it a "review" is NOT. In a few cases there is a dispute, in those cases there *are* some rules of thumb that judges use to help them come to a decision in the dispute - but it comes down to a judgement call and as such even an attorney can't say when a "line has been crossed". Only the judge can and he (hopefully) has to put some effort into thinking about it.

Of course in our adversarial system of law where you *always* have at least one attorney on either side of *every* issue - unless they can read the judge & juries mind they can't ever say with utter confidence when a "line has been crossed."

Millions of dollars?

[Anonymous Coward]

In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars.

Prosecutors on drug busts frequently inflate the "value" of the seized product; I see more of the same here. How do you determine the value of pirated ones and zeros? By adding up the retail prices of all the distributed copies (in which case, you very well might end up with astronomical sums)? Or by figuring out how much the pirates would make off of it (which might be zero, in many cases)?

Is it just me

[Laur]

or did anyone else feel like they talked a lot but didn't say much? (Lawyers, I know)

This isn't surprising to me since most of the really interesting stuff is occurring in civil law, not criminal. These guys mostly go after rampant piracy for profit (i.e. large software counterfeit rings and such).

From question #7:

As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied.

I was hoping that they would clarify whether it was legal to circumvent the copy protection to exercise fair use rights. They mentioned in question 3 that the DMCA contains fair use exceptions but this seems to be a legal gray area. Is it legal to use DeCSS to watch legally purchased DVDs on Linux? Is it legal to hack copy protected CDs to rip them to mp3s (for personal use)?

Re:Is it just me

[Laur]

Sorry to respond to my own post, but I wanted to add somehing. The submitter for question #7 asked:

Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use?

It didn't seem like they really answered this question. They determined that, yes, fair use exists, but didn't go so far as to say that making personal copies falls under fair use. What if the software EULA expressly forbids making backups for "archival purposes"? What if you lose the original, what rights, if any, do you retain? Can you still legally use your backups (isn't this what backups are for)? How do you prove to the copyright holder that you purchased the original?

Re:Is it just me

[Anonymous Coward]

Sadly, they won't answer this, ever. It's not their job. They are told if it's legal or not and go after the bad guys.

Re:Is it just me

[Alsee]

I was hoping that they would clarify whether it was legal to circumvent the copy protection to exercise fair use rights.

It is a crime to circumvent DRM. There are a few and pretty much useless (insanely narrow) exemptions for research and whatnot, but fair use is not a defence to the crime of circumvention.

The really disturbing aspect is that you can do the descrambling calculations and steps entirely mentally. It would be slow and laborous, but there's no reason you can't do it. You can illegally access (read) a DRM'd book just by looking at the file and thinking. The DMCA makes thinking those thoughts a crime.

-

Re:old myth: N illegal copies == N lost licence fe

[divec]

Oops - I missed a better example of the same myth ("millions of dollars 'worth' of illegal copies == millions of dollars of economic harm done, even if most downloaders would never have paid money for a legal version")

The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Re:old myth: N illegal copies == N lost licence fe

[Wiseazz]

I suppose that since there's no good way to read peoples' minds to determine if they would have purchased the software, this is the best they can come up with.

I agree that calculating damages due to software piracy if difficult, if not impossible. To me, it's a case of a square peg and a round hole (or maybe a round peg and an octagonal hole would be more appropriate). When you have a physical product, and someone steals it, the value is very easy to calculate, but not so with IP. That being the case, perhaps we need IP laws that are capable of looking beyond damages in their sentencing structure and rely more heavily upon other factors. Admittedly, though, I can't think of what those might be. Someone smarter than I will have to dream that up :)

Rewording needed

[Anonymous Coward]

If I was a lawyer or an English major, I might be able to state this in legalese, but this:

(a) are primarily designed to circumvent,

(b) are primarily marketed for use in circumventing, or

(c) have limited commercially significant purpose or use other than circumventing,

ought to be dealt with logically like:

((a or b) and c)

And the word "commercially" should be struck out altogether.

Re: Civil Law

[Kierthos]

That should be "beyond reasonable doubt" in the first line. And I even previewed the silly thing.

Kierthos

Ummm...

[Anonymous Coward]

"While we work with a wide range of victims, from large multi-national corporations to small mom and pop businesses..."

Since when did "We, the people... " become "We, the businesses... "?

We need a cap...

[Anonymous Coward]

...on the value, X, of damages seekable from a person with a net value of Y.

Your question raises an interesting point!

[Rogerborg]

Meh. No answers to the big issue:

Copy right was intended as a tool to achieve a goal. The explicit goal was to encourage creators to make their work available to the public, by allowing them to profit from it. The profit is the tool, not the goal.

So, at what point did US.gov forget that? When exactly did it become a crime to "steal" that potential profit, rather than a crime to run cartels that operate to keep creator and recipient apart and to keep that work exactly as expensive as the market will bear? Hmm?

THEY SURE WENT TO "RUN YOUR MOUTH OFF" SCHOOL, YES

[Anonymous Coward]

Angry...

[deman1985]

Their answers to many of the interview questions angered me, to be quite honest. They said many things that only went to verify that our legal system is off balance:

1) Considering IP infringement to be the same thing as theft. This is simply not true, no matter how you look at it. Is it criminal? Yes. Should it be treated the same way as theft? Most definitely NOT. The punishments assigned to most IP cases, even the smaller fines, are ridiculous. Do they think we're all millionaires who can afford to throw around $250k for every single frickin' song we've ever downloaded? They're making examples of the first few they've caught by charging them extravagent amounts of money when the RIAA wouldn't have brought in that much money from the original sale in the first place. Wouldn't something like this fall under cruel and unusual punishment?

2) The references to fair use in the different responses seemed contradictory. They claim there is fair use and that people do have certain rights for private use of their own property. Shouldn't this mean that I have a right to use whatever means possible to copy my own CD for backup purposes? If the RIAA insists on making it more difficult to do this, then I'm more than willing to take the extra time required to do so, only now thanks to our friend the DMCA, I'm not allowed to crack the algorithms used to protect the content. Doesn't this seem the least bit contradictory? If somehow the content falls in my lap, it is perfectly legal to keep a copy of it for my own purposes as a backup, and yet it's illegal for me to obtain that content?

I don't know about the rest of you, but it seems like it's time for a change. The RIAA and various other organizations have corrupted the government bodies that were created to protect the citizens of this country. No longer is it the individual artists who create the content, the actual people doing the work, who are being protected-- only the corporate shell that drains money out of their success.

Re:Angry...

[bmetzler]

Do they think we're all millionaires who can afford to throw around $250k for every single frickin' song we've ever downloaded?

No, that's why you should just buy the song on CD for $15 or whatever it is in the first place.

They're making examples of the first few they've caught by charging them extravagent amounts of money when the RIAA wouldn't have brought in that much money from the original sale in the first place. Wouldn't something like this fall under cruel and unusual punishment?

No, punishment is supposed to be greater then the crime. If the punishment to stealing songs was just that you had to pay for them when you got caught, then everyone would just steal the songs. If they were caught, they just pay what they would have had to pay anyways. If they aren't caught, it is free music. WooHoo!!

Punishments for stealing music needs to be great enough to make others think twice about doing the same thing.

-Brent

Re:Angry...

[deman1985]

Let me pose this question:

If someone steals a $1.00 piece of candy from a store (which is more than one track off a cd is worth), are they charged this outrageous $250,000 fine? No! You might get some short jail time, but nothing near the scale of what they talk about for copyright infringement. All of a sudden it's so much worse to steal digital information than physical property.

I'm not saying that you should steal songs in the first place, but to deter infringement by practically ruining some of these people's lives is just wrong. If you walk up to some artist and ask them if it was worth their pathetic 50 cents to see some poor college student be fined several thousand dollars and face jailtime, I'm sure they would hold back from commenting.

And once again, record labels should not be allowed to take legal ownership of the songs these artists create. If an individual artist really has a problem with people downloading their music, let them speak for themselves. I'm sure that the vast majority of them don't mind the publicity, but because of their stupid contracts they can't voice their real opinion.

Re:Angry...

[bmetzler]

All of a sudden it's so much worse to steal digital information than physical property.

It is so much worse, because it is a much bigger problem. The bigger the problem, the bigger the consequence.

I'm not saying that you should steal songs in the first place, but to deter infringement by practically ruining some of these people's lives is just wrong.

It's not just arbitrarily ruining peoples lives. Those people *choose* to steal music, and software, and movies. If you don't want your life ruined, you choose not to steal. It is a black and white issue.

Through the use of a computer, people can steal much more then Jesse James, and others did robbing banks back in the heyday. Is it right to just give the perpetuators of these crimes a slap on the wrist? No, the consequence should greatly outweigh the crime.

Many people steal music and movies and software because they feel there is no penalty to doing this. This must change, and it must be done by hitting the biggest offenders with serious penalties.

-Brent

Re:Angry...

[Anonymous Coward]

> If you walk up to some artist and ask them if it was worth their pathetic 50 cents to see some poor college student be fined several thousand dollars and face jailtime, I'm sure they would hold back from commenting.

Some do say what they think.. was surprised by this one a bit... tho this guy loves attention and doesn't need money ;P

http://www.cnn.com/2003/TECH/ptech/07/22/jackson .f ileshare.ap/index.html

Federal Sentencing Guidelines

[holt_rpi]

IIRC, these guidelines are set by Congress with input from the United States Sentencing Commission. More info about them here [PDF].

One of the criticisms of the guidelines has been that they offer little flexibility for federal judges when doling out criminal punishment. That's why organizations like this exist. Reform of the laws must be done through Congress - so if you don't like them, write your Senator/Senatrix and Congressperson...

Similar criticisms have been made of the sentencing guidelines with respect to fraud and abuse cases in healthcare, where the scienter bar can often be very low.

Particularly interesting...

[no_opinion]

Excellent responses. Personally, I found the following points particularly interesting, given the common Slashdot rhetoric:

1) "we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft. In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours."

2) "...while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products. "

3) "Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products"

I have to say...

[chrisgeleven]

This is one of the most informative Q/A sessions I have read on Slashdot. Not only did the DoJ not jump around a question or give a half answer, they actually tried to cover both sides of the issues they were asked to talk about. Very impressive and I learned a lot while reading it.

Can Slashdot get someone from the Civil Law side to be interviewed on Slashdot? Also one of our representatives from the House/Senate would be great as well. Politicans should make use of web sites like Slashdot more often.

Quality of the law

[HiThere]

It sounds as if, were we to have decent laws, this would be a good prosecutor. But then he is a lawyer used to presenting himself in public. Still, his positions are largely defensible.

Of course, although he talks about assisting the "little person" he can't provide a single example of where he or his department has assisted the Open Source community. Despite the fact that he must have prepared himself for /. In fact, he could research the answers after seeing the questions.

And usually of the areas that we find most contentious he has said "That's civil law. We weren't involved.". This is particularlly interesting because in civil law you don't need to prove that the person you are accusing did something, you just need to show that he can't prove he didn't. And appear to be even slightly more convincing. This tells us where the corporations are spending most of their money. (Cynical?...less than the facts demand.)

Of course civil law only threatens one with economic ruin rather than jail time...

The summary of his presentation seems to be:
"It's my job to enforce the laws. I don't write them." And he asserts that he performs his job accurately. (He seems to have a convincing presentation, anyway.) And he's not going to say, or appearantly even consider, anything that would make the laws be seen as unfair. Whether they are or not.

I consider his defense of the quality of the laws weak, but he was strong in asserting that his department wasn't involved in the perversions of law that we consider most offensive.

Say WHAT?

[dspeyer]

They wrote:

In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.

Am I the only one who noticed that they never presented any evidence of harm? If this company is surviving in this economy as a small proprietary software company, they're doing better than average. Sounds like piracy is their friend to me.

All right, my argument's not very good -- but theirs is non-existant. I sure hope claims like that don't get through in court.

Skyrocket?

[PhilHibbs]

Q: It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.

A:The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket.

But surely that's the problem! They take the production cost, and multiply it by the number of copies made!

Re:Even prosecutors have trouble determining legal

[DarkBlackFox]

What I find interesting is how methods to prevent fair use are clearly written and identified in law (DMCA), yet fair use itself has become a gray shadow in it's wake.

While O'Leary mentions the Fair Use doctrine was written into law in 1976, he also states it's meaning and interpretation has been greyed to an "instance specific" interpretation. Meanwhile, the DMCA is very clear about preventing technologies which would allow Fair Use copying, in that if a CD comes with copy protection, how can I make a backup copy in the event the original gets scratched or broken (as is the case with many of my CDs).

A few thoughts...

[gr8_phk]

Some things stood out for me:

They claim to have prosecuted a case for the little guy, but only cite one case where there were several parties (including big ones) being affected.

Even after the question about terminology and agreeing that some terms are more accurate than others, they like to use the word pirate. In the last answer we have "This is the first extradition of a foreign national for online copyright piracy". Note it's not "copyright infringement", but the more evil sounding "pirate".

While they refused to answer questions about a specific case, they finnish up by talking about an ongoing extradition in a specific case.

Very good answers to very good questions. I just saw a few things that seem a little off.

Re:A few thoughts...

[Darth]

They claim to have prosecuted a case for the little guy, but only cite one case where there were several parties (including big ones) being affected.

Well, they dont exactly have room for a comprehensive list of all the cases they have prosecuted. I do agree that it was a bad example and would have preferred an example involving open source software. That being said, i do wonder if there has ever been a case involving open source software considering that the criteria they use lends itself more to commercial ventures and the attitude in the open source community seems less likely to pursue government help in issues of copyright infringement.

Even after the question about terminology and agreeing that some terms are more accurate than others, they like to use the word pirate. In the last answer we have "This is the first extradition of a foreign national for online copyright piracy". Note it's not "copyright infringement", but the more evil sounding "pirate"

I chalk this up to society. The use of "pirate" for describing that behaviour is so commonplace, I think they just use it as a slang term, as opposed to any specific intent being behind it's use.
It's still an incorrect usage, but i dont think it's intentionally malicious.

While they refused to answer questions about a specific case, they finnish up by talking about an ongoing extradition in a specific case.

Well, to be fair they refused to answer questions about a specific case that they had no involvement in and have no information about outside of what was published in newspapers. They arent really qualified to authoritatively discuss the merits of the case and, policywise, they probably arn't allowed to for fear of implying approval or disapproval by their department.
The case they discuss at the end is something they are involved in and can speak with authority about.

that's my take on the pieces that stood out for you.

Stalin was passionate too

[MisterMook]

Stalin was pretty passionate about communism, and genuinely wanted to change the Soviet Union too. Off to the gulag with us...

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

Well, the code he cited is written, Open Source is doomed, unless the license prohibits commercial gain from modification. (or something like that.)

That sucks.

Not as simple.

[GoofyBoy]

>but "because I want this" is not a valid reason to break the law.

There are lots of things which can be classified as "I want" such as
"I want the right to vote for representation"
"I want the ability to get married to someone of a different race or culture"
"I want my child to live in a place where he can worship the religon he wants to"

Re:Not as simple.

[El Cubano]

There are lots of things which can be classified as "I want" such as
"I want the right to vote for representation"
"I want the ability to get married to someone of a different race or culture"
"I want my child to live in a place where he can worship the religon he wants to"

OK. I had to let al my mods in this discussion be undone, but you are way off base. The list you propse were all cases of equality.

Take voting. The white guy was allowed to vote, but the black guy that lived two blocks away, worked in the same factory, payed the same taxes and followed the same laws, was not allowed to vote.

The RIAA basically says, "no copying our copyrighted works." This is equality, it's across the board. The don't say, "OK residents of RI, NY, CA, WA, OR, and WY can pirate, everyone else must not." Or, "user of Linux, Mac OS X, and Solaris can pirate, but Windows users are not allowed."

Sadly, you have confused the issue.

Re:Not as simple.

[Deusy]

He wasn't disagreeing that people want things incompatable with the law, he was saying that just because you want something illegal or not legally recognised, doesn't mean you should take it.

If everybody who shared files was to get together in an (even slightly) organised manner, you could force the relevant laws to be seriously reconsidered.

But people like convenience; the convenience to share files illegally rather than the inconvenience of formally confronting the law. It seems the majority of 'file traders' only actually care that the law may not be in the public interest when they are brought to 'justice' for breaching that very law. But getting it changed is too much of an effort, so they share and do nothing.

You might complain that 'big business' controls the law. The reality is that 'big business' just cares more, because of the potential loss of money and loss of control of sales (who controls the internet?), to heavily involve themselves.

If the millions of file traders banded together, they would be a force to be reckoned with. However most don't care enough to do something constructive. Only the minority care and most of those because they were targeted by the law.

The law can only change if you address it's defficiencies. The true tragedy here is the apathetic public nature; most people only care about what lands on their doorsteps.

Half of me thinks, "they deserve it" when people complain, "this is not constitutional" as they face severe punishment for piracy. "The law is wrong" is no excuse when you do nothing to improve it - move to somewhere lawless if that's the way you feel.

Re:Not as simple.

[demastri]

Clearly, that was not the intent of the original poster. His intent was more like "because I want this, although I have no legitimate ethical right to expect it" which makes your post irrelevant.

He even explicitly mentioned the fact that civil disobeience was VALID, further undermining your need to reply. This is why "ethical" above is not "legal", BTW.

This was obvious from his context. I hate when guys nitpick semantically, and still manage to get it wrong...

- John

>but "because I want this" is not a valid reason to break the law.

There are lots of things which can be classified as "I want" such as "I want the right to vote for representation" "I want the ability to get married to someone of a different race or culture" "I want my child to live in a place where he can worship the religon he wants to"

Re:Not as simple.

[GoofyBoy]

>The list you propse were all cases of equality.

Not its not.

If a government takes away representation/voting for the entire citizenship, is that just?

If a law was passed that it was was legal for a person (regardless of their colour) to only marry of the same race as themselves, would that be just?

If a law was passed that said that you can only worship the one true god, Shiva, would you?

These laws treats everyone equally, but equally wrong.

Re:Not as simple.

[zakureth]

Please. Those are not just "because I want it" reasons. I want the right to vote or marry or worship freely aren't simple selfish desires. They may come out on the surface as basic needs or desires but there's much deeper issues of human right and dignity involved. that gave these statements depth and imperitive that demands resisting an arbitrary structure that tries to deny them.

Comparing them to people copying protected works when there is no generally accepted right to free unrestricted access another human beings labor or works is just rediculous.

I wouldn't doubt that the entertainment industry is largely corrupt and monopolistic these days. Dangerously so, in fact. But taking a cavalier attitude to the law like this and actually placing them on the right side of the law on such issues is just stupid. They are generally wrong, but they are legally in the right on this issue. And all congress sees is a bunch of theiving kids whining because some of their largest contributors are trying to protect themselves and their interests.

Re:Not as simple.

[Anonymous Coward]

> Comparing them to people copying protected works when there is no generally accepted right to free unrestricted access another human beings labor or works is just rediculous.

Uh, in many parts of eastern asia that is actually generally accepted. Its due to pressure by the 'western world' mostly that many countries in that area have copyright laws somewhat compatible with what we see in the USA.

For me there is a very basic problem with the RIAA approach. Whenever I buy a recordable CD, I pay the music industry compensation for the eventual case that I'd put a (for strictly personal use only) copy of something on it to which they own the rights.

What this means is that the fact that I distribute open source software on CD recordables results in sponsoring the music industry. Yet, I am not allowed to compensate that by gaining access to such works.

Add to that the nonsense of having to pay for making a copy for strictly personal use of works to which I already gained permanent access..

It reminds me of the nonsense they wanted to get into law here that would make running multiple copies of the same program on the same computer a violation of copyright unless you had obtained a licence to do so... (note that this woudl have applied for both single and multiuser situations... luckily it never made it that far)

The Small Software Shop

[GoodNicsTken]

In the 10 person SW company example the DOJ mentions, I have a question.

Who brought the case to the DOJ's attention?

More to the point, how many cases to the accept from smaller companies compared to large corporations?

If you have a legal team maybe

[MisterMook]

Thats if you have a legal team representing you to file the proper forms. It's great to see that law represents the man on the street, isn't it?

Re:If you have a legal team maybe

[steveshaw]

Actually, many lawsuits are brought pro se by nonlawyers in both federal and state court. You will generally find that courts and the court system bend over backwards to assist these types of suits, often excusing procedural and substantive gaffes that would be sanctioned if a lawyer committed them.

The law does protect the man on the street for the most part, as long as that man or woman isn't a complete and utter idiot. Sometimes it protects them too, though.

As I have told many clients, anybody can sue anybody, it doesn't mean they will win.

Re:If you have a legal team maybe

[MisterMook]

As I have told many clients, anybody can sue anybody, it doesn't mean they will win.

Right, because the determining factor in whether someone wins or not is who bought the law in the first place and who's funneling money where. Without corporate funding of the DMCA in the first place there wouldn't be any laws favoring corporations and slamming the public domain. Without Disney copyright extensions bought in Congress, the public domain would mean something. You may represent your clients, but Congress isn't. They're representing the corporations on the logic that without the corporations we'd all somehow become paupers overnight.

Re:If you have a legal team maybe

[steveshaw]

I tend to agree with your cynicism regarding Congress. However, as my original post dealt with legal matters, let me point out that "who wins" in court is often left up to a jury composed of citizens like you, not corporations.

Re:If you have a legal team maybe

[MisterMook]

What evidence and considerations they're allowed to use as the basis of their decisions are defined by legislatures though, at least in theory right? Even the Supreme Court finds itself limited in that way, when no clear Constitutional issue comes into play they're often forced to enforce whatever boneheaded laws Congress wants them too.

Re:If you have a legal team maybe

[Anonymous Coward]

A nice fantasy, but just not true. Ever hear of "results-oriented jurisprudence"? It basically means that judges decide what outcome they want in advance of the the trial and then use their judicial powers over the proceedings to ensure that outcome. The actual trial and jury (if there is one) are mainly just for show in cases involving individuals v. corporations.

Re:If you have a legal team maybe

[Col. Klink (retired)]

> As I have told many clients, anybody can sue anybody, it doesn't mean they will win.

And that's what is so cool about this law. You don't have to sue anyone or take anyone to court. You just file some paperwork at the clerk's office and violate their right to privacy.

Re:If you have a legal team maybe

[Ravensfire]

But that's the idea of the courts, and the division of responsibilities established.

Generally, the courts only make law in the gray areas, where the law is vague or doesn't exist yet. I'm pretty sure that the Supreme Court justices would be very happy if Congress would legislate some of the issues they deal with, and give clear rules for everyone.

-- Ravensfire

Re:If you have a legal team maybe

[MisterMook]

The courts never make law, they only make decisions based upon the law. When something is clearly unconstitutional then they can remove the law as being illegal in the first place, but they can't make them from thin air. The only thing they do even resembling that is when they establish precedent in a ruling and outline a decision in way that makes it clear to Congress that any other way to phrase a law would be unconstitutional.

Re:If you have a legal team maybe

[steveshaw]

It depends on your definition of "make." Courts can interpret existing laws in such a way as to basically create new laws. The legislature's only resort is to write another law expressly overturning a court's interpretation and clarifying the legislature's intent.

Seperation of interests

[snopes]

I'm not going to get into a nitpicking about speration of private and public (government interests), but would just like to provide this one fact to folks here. I happen to directly know an RIAA investigator. He doesn't participate in P2P or other strictly online cases. His focus is on large scale piracy operations (i.e. overseas manufacturing of conterfeit media). My point, however, is that he, an employee of the RIAA, participates in FBI raids of suspect facilities. He's there representing the RIAA's interests, not the public's. I'm sure FBI folk could go on about how these collaborations are handled to ensure ethical work, but the truth is he's there standing next to the enforcers, pointing his finger, and pressing the RIAA's case before the suspect even has a chance to cry "lawyer".

Large, moneyed organizations do get special treatment by the US federal government. To try to argue otherwise is ridiculous. Similarly it's a waste of effort to try to get them to stop. In this case the claimed issue is that they need an expert on the scene to identify the infringing materials and the FBI can't be expected to provide that expert. What I'd like to know, and my apologies to all for not posting this question in response to the initial RFQ, is how does the DOJ and it's enforcement arm, the FBI, ensure the individuals and groups within their departments are acting ethically and not being influenced by these private organizations? Are ther eductaional sessions for investigators working hand-in-hand with private organizations? Are there established, departmental penalties for unethical behavior which may not technically be illegal?

Maybe we'll get to interview the FBI next?

Perjury

[chrystoph]

I find it disappointing that the perjury issue was not, IMO, addequately addressed.

Yes, it defined the circumstances of perjuring, but it said absolutely nothing about the effects of that action.

My logic is thus: The individual perjures himself by falsely claiming to represent the copyright holder, as in the example above. Perjury is the offering of false testimony under oath (paraphrased) Definition. What court is the individual/organization guilty of perjuring in? If it is, in fact, perjury, how does one get a court to act upon it. It is a criminal act, not a civil one; therefore, it is not, so far as I know, the appropriate case to sue, although that is within the accused's rights for the false claims of copyright.

Fair Use

[Gunzour]

Assuming the definition of Fair Use which they quoted is corrected, it's got nothing to do with personal use, which is surprising to me. Based on their definition, Fair Use does not cover:

Timeshifting for personal use

Making backups for personal use

Making a copy for another location (i.e. copying a CD for your car CD player)

Making a copy for a friend

Photocopying a page from a book at a library

In fact, by their definition, fair use seems to only cover referencing copyrighted material in other copyrighted material, for example, a book reviewer quoting a paragraph from a book in his review of that book.

There must have been some case law that expanded the definition of fair use beyond what they refer to. Perhaps Sony vs. Betamax? Anybody know?

Re:Fair Use

[Artagel]

The statute is appended below, the key language is: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...", which means that a court must consider the listed factors, but is not prevented from considering unlisted factors. The statute does not tell courts how to weight the factors, listed or not.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Re:Fair Use

[swordgeek]

Sure it does. Read this part again:

" the purpose and character of the use"

They didn't quote the entire law verbatim, but it should be clear that burning my records onto CD is a 'fair' exception under this very point.

Re:Fair Use

[mlilback]

I know a lawyer involved in the lawsuit against Replay for commercial skip and sharing recorded programs. Anytime we get into a debate about IP and Fair Use, he always points out that personal use is not a part of fair use.

While courts have ruled favorably for consumers in the Betamax and Rio cases, those decisions also have many conditions and footnotes that limit their application to other areas.

On a positive note, he told me the industry has tried numerous ways to cirumvent commercial skip and none have worked. A legal solution appears to be the only way to prevent it.

Re:Fair Use

[odin53]

The codification of fair use in section 107 is a list of factors that a court should think about in determining what is fair use, so it's not a complete list of fair uses. For your examples, though:

Timeshifting is fair use under the Betamax case;

"backing up" recordings for personal use is a codified "fair use" under the Audio Home Recordings Act, and backing up software is "fair use" under section 117;

making a copy for another location is the same as the previous bullet, as long as it's for personal use;

making a copy for a friend is NOT a fair use under 107 or the AHRA; and

photocopying a page from a book at a library is a fair use under 107 -- re-read the first paragraph of it ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright").

Remember that, ultimately, fair use depends on the character of the copying.

Re:Fair Use

[Anonymous Coward]

Don't expect a DOJ attorney to admit you have rights. As far as they are concerned, you don't until a court order says otherwise. It's pretty sick really.

Re:Fair Use

[odin53]

he always points out that personal use is not a part of fair use

He's right, but don't misunderstand him: personal use in and of itself is not going to make a particular use "fair use," but personal use (versus commercial use) is certainly a factor in determining the character of the use as a "fair use." For example, making a copy of a CD for a friend is arguably a "personal use", but certainly isn't a "fair use." Copying an article from a journal for research for a paper is also a "personal use," but, together with other 107 factors, is probably a fair use.

Re:Fair Use

[Teunis]

all of these are -explicitely- covered in the Canadian copyright code. Whether or not that's a good thing is another story entirely.

IANAL btw. Just have read both the code and the official versions meant for copyright holders... available at any fine business development agency.

Timeshifting? Don't know that term Backups for personal perpose - a single copy (of software) is allowed for backup perpose.. (I suspect there's a lot more clarification for dealing with such things as site backups :)

Copying CDs? As of recently, copyright fee paid on purchase of CDs for burning, regardless of intended purchase. Unless sold, most copying is allowed. Of course CDs are more expensive because of this... Specifically music, movies. NOT software. That's covered seperately.

Making copies for a friend? Videotape, audiotape, audio CD - all okay. Just don't sell it. See the "fee paid on purchase of media". Fair use says explicitely that copying for backup purposes okay and usually that only one copy can be in use at a time. Seperate situation.

Photocopying? An excerpt for review or inclusion in another body of work is acceptable. There's specific limits on all of these - and intended use is important. Don't ask me for more details *wry grin*

now IANAL but I'm a proud Canadian. I also remember there's explicit restrictions in our laws that would prevent the creation of a DCMA (or whatever) here. At least not without some truely careful wording. And it still probably wouldn't survive the first court challenge... who knows though.

Re:Fair Use

[Anonymous Coward]

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ...

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is the important one. $$$ is what copyright is all about.

If you make a copy so you don't have to carry the CD to your car, that is just a convinence for you that doesn't effect the economic interests of the copyright holder. So that could be considered a fair use. Same with timeshifting, etc.

Giving a copy to a friend is a different story.

Re:Fair Use

[Anonymous Coward]

There must have been some case law that expanded the definition of fair use beyond what they refer to. Perhaps Sony vs. Betamax? Anybody know?

There are hundreds of cases on this. Probably dozens in the Supreme Court alone, not to mention the appeals courts and trial courts. The question "What is fair use" has been the subject of thousands of journal articles and more than a few books (BN finds 18 that have fair use right in the title).

The DOJ guys didn't do too badly for a sub-one-page answer. Also, we expected them to be a little conservative, right? They had to be expecting that someone would carry a printout into court and say, "but Your Honor, the DOJ told me I was making a fair use."

Another slashdotter helpfully point out 17 U.S.C. Sec. 107, which is the right place to start, but fair use was created by judges in court cases years before 1976, when 107 was written. They wrote 107 in an attempt to bring some order to the fair use doctrine, which was confused even then. It helped, some, but courts still have to decide whether the use you're making is a fair one. Sony v BetaMax was 1984, but Sec. 107 has been amended since then and, as I mentioned, there have been many other cases as well.

Re:Fair Use

[Nakarti]

Let's see:

No financial impact.(Implied exempt. Accepted as such.)
Ditto.
Ditto.
Piracy: your friend, if he wanted it so much, could have paid.
Research(specifically exempt.)

Say what now?
You people at least know how to read, right?

Re: IANAL

[Anonymous Coward]

Hey, now we know from whom all the IANAL posts come!

Half-answer on question 7 (fair use)

[gumpish]

I was hoping to see a response to the question about "un-copy-able" products violating fair use rights of consumers.

They ducked it.

Re:Half-answer on question 7 (fair use)

[ph43thon]

Their clarification was that fair use is NOT a right. Fair use simply protects certain behaviour.. don't ask me what that might be, but you aren't guaranteed the ability to copy products for yourself. And, actually, I agree.. bah to the RIAA. If they manage to make it impossible to copy the next Britney Spears album, so the hell what. If the MPAA makes it impossible to copy the "Transvestite Butt-Pirate Movie", I do not care. Fair use should protect things like critique, parody, etc. If you don't like how RIAA does it.. then support truly independent artists. Like they said, the marketplace can decide. So it goes...

The Law is an open source project

[RevMike]

It seems strange that we, as a people, would allow laws to become so complex that even the attorneys (who have been specifically trained in the law) would have trouble giving a specific "bright line" definition...

This is a consequence of the "common law" system inherited by much of the world from England. In the common law, it is accepted that disputes will arise that fall outside the language of a statute. Therefore it is accepted that statutes passed by legislatures (Parliament or Congress) and executives (be they Kings or Presidents) can never on their own create a fully effective legal system.

In this vacuum, judges have been empowered to create law by applying the general principles of justice and interpretting the intent of the legislature. Other judges are encouraged not reinvent law a second time but to rely on the prior decisions when faced with similar cases. Because of this, the law is constantly being refined.

It is a great big open source project with thousands of developers constantly tweaking and enhancing it. In that light it is not odd that lawyers cannot give accurate "bright line" definitions. Can kernel developers tell us for sure what the source tree will look like tomorrow?

Re:The Law is an open source project

[HiThere]

Can kernel developers tell us for sure what the source tree will look like tomorrow?

No. But they can tell you: This version is still being debugged, so use the stable kernel for anything serious.

Re:The Law is an open source project

[aggieben]

In this vacuum, judges have been empowered to create law by applying the general principles of justice and interpretting the intent of the legislature.

This is absolutely incorrect. Judges are not empowered to create law in any form or fashion. Applying general principles of justice is also not part of a judge's job description --- that's for superheros. Their only job is to interpret the intent of Congress which is written into law. By implication, their only job is to interpret law as it is written. There is no other way to ascertain the intent of the legislature, which alone has the authority (in the U.S. system) to create law. Precedent is used in the name of efficiency and convenience, but IMHO, I'd like to see the system do away with precedent because it does create an informal power for judges to create law --- which is unconstitutional. Judges should be required to weigh the specific facts of each and every case that they see against the letter of the law --- or at the very least, they should be required to show that the case meets a certain standard of similarity to previous cases in order to use precedent in their decisions.

Note: all of the above comment is directed at the federal level. Indivudual states have the authority to set things up somewhat differently, although not too much so.

Re:The Law is an open source project

[gilroy]

Blockquoth the poster:

This is a consequence of the "common law" system inherited by much of the world from England. In the common law, it is accepted that disputes will arise that fall outside the language of a statute. Therefore it is accepted that statutes passed by legislatures (Parliament or Congress) and executives (be they Kings or Presidents) can never on their own create a fully effective legal system.

Is this just a sociological statement of Godel's Theorem? :)

Re:The Law is an open source project

[kasparov]

Yes, but the consequences... I just really dislike the possibility of spending a significant portion of my life in jail because my interpretation of a law was different than another person's.

The possibilty of spending 5 years in jail (or paying thousands of dollars in legal fees to stay out) just because a vaguely worded law seemed to allow my "fair use" of something, but didn't mean that at all to someone who interpreted it differently (due to differing political or personal ethical leanings) is just really scary...

well, there is tradition

[mveloso]

Do you speed on the highway? Do you make tapes of the radio and give them to your friends? Do you make CDs of the CDs you own and give them away? You probably are breaking the law!

It's funny, but there's a longstanding tradition in the US about the law - it's followed when it matches our expectations/norms, but it's not followed when it doesn't.

Just because it's a law doesn't mean that you have to obey it. There may be right reasons or wrong reasons to obey laws, but it's up to the individual to decide (and pay the price, if necessary).

CD-Socialism/Stalinism/McCarthyism

[felonious]

The vast majority of prosecutions of violent criminals take place at the state and local level, not the federal level, which is where DOJ s jurisdiction lies. However, in those instances where there are federal violent crimes, the penalties are more severe than those imposed for copyright infringement. For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

This guy must think we are stupid. First off he says ONE count of copyright infringement and we know whoever is charged will be charged with more than one count. If it's a per song basis like their $150,000 so-called loss then then counts would seem to follow. Let's think small and go with someone sharing 5 songs. Let's charge them with 5 counts of copyright infringement and charge them with a medium figure of 2.5 years per infringement. That's 10 years and a $750,000 so-called loss. You would do less jail time is you beat and raped a stranger and that's just what the lawyer is saying in his encrypted law-speak. Break it down for yourself.

Now take this very conservative figure and add in other miscelleneous charges and you could be looking at a lot of time along with an amount of money you could never pay back. These are penalties that outweigh the copyright infringement...not crime. Think about someone sharing 100's of songs and look at what they're up against.

Whoever is charged needs to fight with everything they've got because if we make it easy for them then it'll be a "take a number" mentality of which they will process us like cows headed to slaughter. Maybe this is a new business model? If they we don't spend money on their products then they'll take it from us and actually make more and in the future have much more control.

I'll call it CD-socialism...or maybe CD-stalinism would be more fitting. All of this would also include CD-Mccarthyism to generate fear and paranoia. It's what we have to look forward to if we don't make our voices heard and stop buying their shit. If we buy or not they will always use the P2P excuse so don't let that bullshit argument keep you from boycotting. I'm done buying and have been for many months. I don't see myself going back unless an about face is made sometime in the near future.

I say we can change things but we all have to work in unison to get it done on a large scale level....

Links to Tens of Thousands of Legal Music Dwnloads

[MichaelCrawford]

You can avoid being sued or arrested if you download legal music instead of getting your tunes from the p2p networks.

Many unsigned musicians provide free downloads of their music on their websites as a way to attract more fans. Here's mine for example. Many such musicians, while relatively unknown, are as good as any major label band and certainly an improvement over the pablum they serve up on ClearChannel.

You can find many more examples in my new article:

• Links to Tens of Thousands of Legal Music Downloads

The article also explores some of the historical and legal issues behind copyright, and suggests steps the file traders can take to make file sharing legal.

If you're a musician who offers downloads of your music, I can link to your band's website from the article if you give my article a reciprocal link. Please follow the instructions given here

A Big Hole In The Law

[Anonymous Coward]

As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products."

That is a very big hole in the law. Namely, how can you be afforded copyright protection without permitting "fair use" exceptions? The two are meant to go hand-in-hand. If it is the marketplace that should decide whether or not copy protection is viable, then the law should step out of protecting products using it.

IP/Copyrights Bad? Non-profit Piracy?

[goldspider]

"IP and copyright are fundamentally unethical laws in an age in where there are no natural restrictions to the flow or creation of information"

So because the Internet allows software and digital reproductions of movies and music to be copied en-masse, that those creating these works should no longer be allowed to make a living from them?

"...and the vast majority of "violators" are not doing so for profit or for gain."

Amazon.com: Price for Adobe Photoshop - $579.99. I decide I don't want to pay that much for Photoshop, so I go and download it using Kazaa. I have the software now, but it didn't cost me anything. I have just made a profit of $579.99.

So don't tell me that "violators" aren't in it for profit!

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

Notice that he repeatedly makes the distinction between criminal court actions (His forté) and civil actions (where most of the action is right now.)

Methinks there needs to be a cap on the damages seekable from an entity, determined by a reasonable estimate of that entity's net worth under duress.

As a side note, the DMCA only makes criminal provisions, not civil ones. So there's a good chance that DMCA threats may not have a leg to stand on.

Re:Even prosecutors have trouble determining legal

[aafiske]

Yeah, but to be fair, there are a lot of complicated permutations of Fair Use. A law that set everything in stone would be almost certain to be unjust.

For example, how much is too much, when you're quoting for critical or academic purposes? Should we judge it by line? Word? Letter? The only thing that comes to mind is by concept, but how do you quantify that? It's a situation where human judgement is required, because we're talking about more abstract concepts.

I think it's a good sign that legislators knew when to say 'We can't put a number on this, so we'll lay down a set of guidelines and let it be judged on a case by case basis'. Better than plucking absurd 'bright lines' out of the air.

excellent Q & A

[Cyno]

This puts into perspective how little us slashdot readers understand our laws and the DoJ.

Unfortunately, I think we understand these things better than the average citizen.

How do you recommend we educate the public about all these laws they are supposed to obey? Or do you only recommend prosecution for infringement?

Does freedom mean we are free to spend the rest of our lives trying to read and understand the laws of the land so we don't break them and lose our freedom?

Re:old myth: N illegal copies == N lost licence fe

[kafka93]

I suppose that since there's no good way to read peoples' minds to determine if they would have purchased the software, this is the best they can come up with.

This seems to suggest that research should be conducted into precisely these issues: open discourse with the 'pirates', without threat of litigation, to determine how many of their downloads they believed they would otherwise have purchased. Conduct polls on the likes of Kazaa along similar lines. Perform statistical analysis of software sales, comparing baselines statistics with those after a major 'bust'. There are numerous measures that might be taken - and it would be interesting, too, to research how many people genuinely *do* buy a piece of software after playing a pirated copy; whether indeed piracy can sometimes serve as a valuable marketing method.

At any rate, the numbers being bandied around are clearly ludicrous, and shouldn't really be used *at all* as a means of determining sentencing, and especially not with the ancilliary consideration of how many "other pirates" were facilitated to download the software -- which suggests by analogue that a murderer should be tried for the actions of copycat-killers.

This isn't an easy issue - and few, even amongst the pirates, would say that what they're doing is "right". But the punishment needs to fit the crime, and locking up socially-challenged, technically proficient kids who transfer data from one machine to another as a means of gaining 'respect', often without even using or caring about the software itself - this isn't fair, intelligent, or good for society.

Time for "Regime Change"

[illumin8]

"intellectual property rights regime"

I never thought a DOJ prosecutor would put it so succinctly! :-)

meta-ask-slashdot

[sleepingsquirrel]

it'd be great if he read the responses to the answers of the responses to the call for the original questions and then replied - that is, meta-ask-slashdot?

No. That would fall under the regular ask-slashdot catagory. Asking questions about ask-slashdot itself would be meta-ask-slashdot. And answering a question about meta-ask-slashdot qualifies this post as meta-meta-ask-slashdot.

Re:meta-ask-slashdot

[realdpk]

I guess I was referring to him possibly responding to the thread, in the thread itself. Still, I was probably off by the meta-ask-slashdot remark. ;)

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

There seems to be a difference between the legal definition of "loss" and the accounting definition of "loss".

Lets say I illegaly downloaded 1000 songs over the last year at a value of $1 per song. Legally the company has lost $1000 due to my downloading. But suppose I only earned $500 that year and was only willing to spend $50 of that on music purchases. In accounting terms the company has only "lost" $50 due to my illegal downloading despite my downloading of 1000 songs. If I purchased $50 in music as well as downloaded 1000 songs that year then in accounting terms the company lost nothing due to my illegal downloading.

I wish they had gone into this topic in more detail.

Question #3

[Anthony Boyd]

The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work.

And here is a summary of the DOJ response to that question: "Um, yeah, pretty much you're screwed. Maybe someone will pass better laws."

They seem to have completely ignored the frustration level of the person asking the question. They don't address the feelings people have about these systems. Instead, they simply comment on the system itself. And that may be what they're legally required to do, but I could sense that more than a few questions were trying to hammer home the point that the system is unfair, and therefore unsupportable by the people. They don't seem to get it. Most corporations don't seem to get this at all -- they're totally out of touch and are going to be completely inept at handling the human response. Which is, of course, to use Kazaa and eDonkey and Freenet more and more and more.

Hey DOJ! Hey government officials! Hey massive corporations! I can summarize the problem for you in one sentence: the system doesn't honor the public domain or fair use rights anymore, so the people don't honor the system any more. Got it? You want people to respect the laws? Make the laws respectable.

Other famous Slashdot-related lawyers

[goldspider]

(mod-bomb disclaimer - it's sorta funny. laugh)

4) Do they know the (in)famous "goatse.cx lawyers"?

Re:Other famous Slashdot-related lawyers

[nacturation]

4) Do they know the (in)famous "goatse.cx lawyers"?

Yes, they're the ones which start out every post with "I ANAL, butt..."

Proper roles

[gilroy]

Blockquoth the poster:

Copy right was intended as a tool to achieve a goal. The explicit goal was to encourage creators to make their work available to the public, by allowing them to profit from it. The profit is the tool, not the goal.

I understand your point, but you have to be fair: It is not the job of the DoJ to weight policy issues. They enforce the law. The law is written by the Congress. And to put the blame one step back, the Congress is elected by us.

Re:Proper roles

[Rogerborg]

It is the job of the DoJ to hand out justice, not pre-judgement. Look at the number of uses of "theft" in the replies. Criminal copyright violation, yes. "Theft" is editorial.

Re:Proper roles

[yerricde]

And to put the blame one step back, the Congress is elected by us.

By us? Or by the broadcast TV networks, most of which are owned by movie studios? The majority of American voters seem to vote not on the issues but for whatever candidate looks better on TV.

Re:Proper roles

[Alsee]

"Theft" is editorial.

Even more disturbing is his use of "property" in #6:

In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft.

He thinks it really is "property" supposedly getting stolen. His thought process is that he is protecting real property from actual theft. The term "intellectual property" didn't appear a single time in ANY of the questions, yet he used it himself thirteen times. There is a fundamental disconnect in language and thought process on this issue.

His internal thought process is entirely in "newspeak".

-

Re:Proper roles

[Rogerborg]

Yes, they really need to get the terms correct. If the copy right is the property, then stealing that means that I've stolen the copy right, not the protected content. If the content in the property, then how can I steal it if the creator still has it?

The whole tone is "well, it's just wrong, and we need to make examples of people to publicize that". Well, it ain't just wrong, asserts I. I assert that it's wrong to rip off a creator that is retaining control of their work and trying to distribute it to the public while asking for fair compensation for so doing. But I assert that when the only option is to support a cartel that operates to restrict distribution, or to breach the copy rights that the creator assigned to them in the hope of making profit, then, well, fuck 'em. Fuck 'em with big dogs. That's not exactly a legal statement, but then neither is "[promoting] the progress of sciences and useful arts".

Re:Proper roles

[gilroy]

Blockquoth the poster:

The majority of American voters seem to vote not on the issues but for whatever candidate looks better on TV.

And you don't think that makes them culpable? I think it makes them more so.

The market system works, more or less. If the average American insisted on being well-informed, if he/she approached news and news sources critically, if he/she demanded multiple viewpoints and in-depth analysis -- if those things were true, the networks (or some networks) would provide it, if only to make a buck.

We can rail against the nefarious forces at work, and we can fight the good fight to staunch their tide, but we have to be honest: Democracy in America is dying not due to supervilliany but to selfish disinterest.

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

From what I read in the interview, the clauses for fair use say nothing about damaging your copy. I really wonder if that is a real application of fair use.

Etymology

[gilroy]

Blockquoth the poster:

That said, you are very astute to pick out their abuse of terms like "piracy". The RIAA, MPAA and BSA have done such a good job of making copyright a one-way agenda (protecting property, rather than protecting a system that can be of huge benefit to society) that the first struggle is to redefine the terms in their original forms.

The whole "pirate" thing bothers me, too, but you have to understand: That term for copyright infringement is not due to the RIAA, MPAA, etc. It goes back at least as far as 1830. It's been sued for nearly two centuries now. And like it or not, it is a legally recognized synonym for "copyright infringement".

All that aside, those of us fighting the good fight should still content the use of "pirate" whenever it's used.

Profit Expectations

[MisterMook]

Given my rather sweeeeet gift with words, I expect to gross somewhere around a billion dollars by replying to this message. If Salshdot doesn't hand it over I guess I will have to take direct legal actions.

Analogy

[verloren]

I found this statement amazing:

"That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft."

1. Lawyers provide a service that is not, in itself, a bad thing, but which is often conducted in a way that many people find distasteful. They charge money for this service, generally collecting from multiple clients, often billing by the hour.
2. So do prostitutes
3. Lawyers and prostitutes are anologous
4. Lawyers ARE prostitutes.

Actually I was trying to ridicule their argument, but I suspect many people won't see anything wrong with my reasoning :/

Cheers, Paul

Re:Analogy

[Anonymous Coward]

Basically saying that anything that is Criminal is theft.

Not a bad way to think about it, so murder is theft of life, etc. So, conversly for a person to be a criminal they have to be stealing something from someone.

Not sure what tax evasion is though... theft of money that would have otherwise been stolen by the government.

Re:Analogy

[PMuse]

1. Lawyers provide a service that is not, in itself, a bad thing, but which is often conducted in a way that many people find distasteful. They charge money for this service, generally collecting from multiple clients, often billing by the hour.
2. So do prostitutes
3. Lawyers and prostitutes are anologous
4. Lawyers ARE prostitutes.
Actually I was trying to ridicule their argument, but I suspect many people won't see anything wrong with my reasoning :/

Which flaw were you thinking of? Personally, I'd start with "the argument proves too much", though I'm sure there's a formal name for the logical fallacy between steps three and four. Working in reverse, the argument is only true if everyone is a prostitute who (a) provides a service that some people find distasteful; (b) charges money by the hour; and (c) has more than one customer. For those who are just catching up, what the argument does is find three characteristics that lawyers and prostitutes share and then conclude that lawyers therefore have ALL the characteristics of prostitutes. (Very slickly done, by the way. Bravo.) In the same vein, one could say:

1. People have sex; 2. Prostitutes have sex; 3. People who have sex are like prostitues; 4. ALL people who have sex are prostitutes.
OR
1. Men are mamals; 2. Mice are mamals; 3. Men are like mice; 4. Men ARE mice.

Come on! Some one help me out here with the formal name. (whacks head with hand) This is killing me. Now, if you're looking for some guys who are analogous to prostitutes, did anyone catch Nip/Tuck?

Re:Analogy

[qtp]

The argument used is a classic False Analogy.

More definitions of logical fallacies can be found here.

For plenty of examples you can look here.

Re:Analogy

[The Cydonian]

Hehe, good call. Nice link too, thanks.

Re:Analogy

[greggman]

I thought you were going to point out the obvious truth of his statement.

It's theft to visit a doctor and not pay him. It's theft to hire a lawyer and not pay him. It's theft to have a plummer fix your plumming and not pay her. It's theft to hire a gardener and not pay her.

In all those cases what did the doctor, lawyer, plummer or gardener lose? What did you physical object did you deprive them of?

NONE!!!!!!!!!!

Yet it's still theft! It's theft of time and labor which is the same for IP.

Re:Analogy

[verloren]

I broadly agree with what you say, but I disagree with your examples. Filesharers don't hire the musicians to do anything, they just take what already exists. The doctor and others you cite gave up their time, exclusively for me, and didn't get compensated - I stole their time, which arguably is theft. Avril Lavigne gave up her time, but didn't get compensated by the filesharer, who hadn't agreed to pay her in the first place, but did enjoy the fruits of her labor. Morally wrong? Yes. Actual theft? Not so sure.

Incidentally, I'm not trying to defend filsharers - I think what they do is wrong, which is why I've never downloaded copyrighted mp3s. But theft has a specific legal meaning, and it appears this isn't it.

Cheers, Paul

Re:Analogy

[Anonymous Coward]

Yet it's still theft!

Uh no, it isn't. It's violation of an implied, understood, and very likely verbally agreed-to contract, but it isn't theft.

Besides which, your examples are not much like copyright infringement anyway. They're much more like sneaking in to a movie theater than copying a movie.

Practically (as opposed to legally) speaking, the primary difference is that with copyright infringement, you typically have no tangible connection at all with the rights-holder, hence the obligation to pay for your copy is not felt to be very strong; compared to the strong obligation you have to pay your plumber when he's done the job, lest your basement accidentally get flooded.

I feel sick...

[JAZ]

It's been a while since I've felt this sick about the nature of America, the law, and mankind.

When the question was raised about the artificial figures and reasonable sentencing the responses were 1> the figures are reasonable and 2> the sentencing is just the law. (I.e. we are just enforcing the law.)

It is a sad time for mankind that the law supercedes common sense and ration behavior towards your fellow man.

First, on calculating piracy damages:

In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

The lawyer missed the point of the question... which was how can you justify these numbers. The answer was the same math that raised the question to begin with. The problem is that it doesn't address real damages, only imagined. What needs to be shown is actual lost sales resulting from the infringement. And since that is nearly impossible to track, perhaps the only reasonable measure is how the infringing distributor profited.

And on the subject of sentencing: Is it ever justice ever served my making an example of someone? That means that the sentence for a convicted criminal includes punishment for a criminal that wasn't convicted, doesn't it?

Both these problems with dealing with your fellow man are rejected because they are not the way the law is worded, and these guys are perfectly willing to enforce them regardless of any reasonable standard of right and wrong. (gee... who else can we think of that was "just complying with the law of the land"?)

Grr. I think I need to found a new nation... perhaps on the moon or something.

DMCA-protected public domain

[overshoot]

Don't forget that given the extensions on copyright, there are extremely few examples of items which would apply under DMCA and yet have expired copyright (or ever will... thus Lessig's arguments in Eldred)

Never underestimate the power of human greed. As it happens, e-book publishers are cranking out enormous numbers of access-locked works such as The Count of Monte Cristo, Hamlet, Moby Dick, etc.

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

It's the judge who rules whether a line has been crossed. Judges usually have years of experience as exceptional lawyers, though.

(Of course, not exceptional to the point where they manage to start a nationally known law firm...those guys usually choose to remain lawyers.)

Missing the point

[gilroy]

The people who are invoking the civil rights movement, or for that matter, the Boston Tea Party, are missing the point of the original post (IMHO). Laws should be disobeyed when they are in fact wrong. Fine. The poster was trying to make the entirely reasonable point that "I want the latest Brittany Spears album" is not -- in and of itself -- enough to make copyright law wrong.

The other bit of civil disobedience that people conveniently forget is this: You are supposed to get caught and punished. It is exactly the publicity and immorality of the punishment -- out on the front pages where it can't be ignored -- that is supposed to spark the moral shift necessary to fix the law. So don't use an alias, a proxy server, and an anonymizer, and then try to BS that you're just executing civil disobedience. If the issue is rights that matter to you, take your lumps.

Re:Missing the point

[landaker]

The other bit of civil disobedience that people conveniently forget is this: You are supposed to get caught and punished.

Just like how all the people involved in the Boston Tea Party purposefully got caught and punished. Ah, I get it now.

Re:Missing the point

[gilroy]

It wasn't civil disobedience, for exactly that reason. You might like it or not, but it wasn't justified under civil disobedience theory. And note that all the uber-libertarians should feel this way, since a bunch of people broke into someone's ship, stole his property, and destroyed it. Recall that it was not an attack on British government offices, British royal property, or British soliders. It was the destruction of private property.

More LIES!

[Anonymous Coward]

I have just made a profit of $579.99.

No, you haven't. The previous poster is right.

Assume I am broke. I don't have $579.99 but I download Photoshop. I have gained only information.

I do not have any more money than I had before. The author does not have less money than he/she had before.

You can't argue that if someone had prevented download I'd have bought it instead because I did not have $579.99 in the first place.

You are lying just like the RIAA and MPAA about what has happened. No one has lost or gained any money.

Maybe more importantly, information is for all. Useful knowledge must not be "owned"; it is universal and omipresent and belongs to history and to humanity. I'd argue that if someone prevents me from accessing useful non-personal knowledge or information, he/she is stealing that information from me by preventing my access to it, whether for profit purposes or any other purposes.

Re:More LIES!

[Anonymous Coward]

Hmmmm... then obviously since you haven't discovered the cure to cancer, AIDS, faster-than-light travel, etc., you are "preventing me from accessing useful non-personal knowledge or information." So, immediately post this information which is useful to me, or jail time for you. And choosing to spend your time on other pursuits is illegally delaying that information from reaching me...

Don't be ridiculous... access to information is a privilege, not a right. Of course, at times it is criminal to intentionally hide information. For example, if a toy manufacturer used toxic materials and didn't inform the public, protecting that information would be criminal.

Re:More LIES!

[goldspider]

"I do not have any more money than I had before."

That's why profit isn't measured only in cash/dollar amounts.

"I do not have any more money than I had before."

True enough, but you also now have a software package worth roughly $580 on the retail market.

"The author does not have less money than he/she had before."

They have roughly $580 less than what they would have had, had you obtained the software legally. Affordability (or lack thereof) is irrelevant.

"I'd argue that if someone prevents me from accessing useful non-personal knowledge or information, he/she is stealing that information from me by preventing my access to it, whether for profit purposes or any other purposes.

So you'd argue then that the entire software/home-movie/music industry is immoral, if not downright illegal because you can't get the information they produce for free? That's about as much of a stretch as I've ever read on this site, and that's saying a lot!

Re:More LIES!

[Anonymous Coward]

Don't be ridiculous... access to information is a privilege, not a right.

No. Access to already existing and/or discovered information is a natural right, not a privelege. It is only in our bizarre society that if a discovery that can help mankind is made, it is quickly surrounded by gun-wielding thugs to keep anyone else from learning about it while the person who made the discovery exploits everyone for profit and takes care to sue or beat out of existence anyone else who happens to make the same discovery.

You don't have to doubt, do you, that once the AIDS and Cancer cures are found, their formulae and/or methods won't be distributed publicly all around the globe, but will be held tightly by a few companies who charge $$$$ to US patients, $$$ to pacific rim patients, and $$ to Brazilian patients, each according to his ability to be raped.

We should put these people (RIAA, MPAA, drug companies, federal IP prosecutors) against the wall now and fill them up with little "gratitude medals". And while we're at it, we should dissolve the capitalistic system that bred the bastards.

Re:More LIES!

[Anonymous Coward]

I'd actually argue that "property" of any kind is immoral and that the capitalistic system that creates it is immoral. Yes. Obviously.

If someone keeps secret the formula for a drug that saves lives so that they can make a buck, they should be punished, preferably by the relatives of those who were allowed to die in order to protect profits.

If someone keeps secret information that can make buildings safer in earthquakes so that they can make a buck, they should be punished, preferably by the relatives of those whose houses fell down in order to protect profits.

Good things must be done for the good of all and shared by all. Good things must not be held hostage behind the structural violence of western law and then disseminated at painful ransom to those who need it. Those who try to prevent the spread of good things in order to make a profit must be dealt with by the people.

Re:More LIES!

[Anonymous Brave Guy]

It is only in our bizarre society that if a discovery that can help mankind is made, it is quickly surrounded by gun-wielding thugs to keep anyone else from learning about it

Is that the same bizarre society that gives so generously towards researching such discoveries?

You don't have to doubt, do you, that once the AIDS and Cancer cures are found, their formulae and/or methods won't be distributed publicly all around the globe, but will be held tightly by a few companies who charge $$$$ to US patients, $$$ to pacific rim patients, and $$ to Brazilian patients, each according to his ability to be raped.

Do you have any idea, any idea at all, about how much money is being invested into researching those subjects right now? Do you know how much time and effort will have been spent by the time cures are found and distributed? Why would any company invest such staggering sums in research if they were never going to see a return on that investment? How could they? They've only grown big enough to do it by selling off previous research.

If you don't like this capitalist attitude, feel free to lobby for tax rises so that all the research can be publicly funded. Hell, go out and donate £100 today to a major charity involved in the research. I make small donations to charities I consider worthwhile every month, because I'd like the results of their research to be publicly available. Do you make donations to support your beliefs?

Re:More LIES!

[goldspider]

Of course history has repeatedly demonstrated that communism is doomed to fail because it is a system run by human beings, who inherantly strive to attain "property". In fact, I'd say that any governmental/economic system that functions opposite of human nature is doomed to fail.

Your ideal communist utopia and reality are indeed very different.

Re:More LIES!

[Anonymous Coward]

Of course history has repeatedly demonstrated that communism is doomed to fail because it is a system run by human beings, who inherantly strive to attain "property". In fact, I'd say that any governmental/economic system that functions opposite of human nature is doomed to fail.


"Because it is difficult" is not a good reason to stop striving for what is right any more than "because it is profitable" is a good reason to do what is wrong.

Re:More LIES!

[Anonymous Coward]

"Difficult" and "futile" are two very different thing. Our capitalistic system is by no means perfect, but a system where everybody is expected to contribute equally, especially in this age of entitlements and handouts, is absurd. We should be giving MORE freedom to our citizens, not take it away!

I would choose a system that affords me the freedom to succeed as well as fail every day. I don't want to live in a society that forces me to live my life a certain way. That's not a free society.

You can claim to strive for your communist paradise, but I bet you go to work and earn money to support yourself.

Re:More LIES!

[steveshaw]

This is obviously flamebait, but it is a good opportunity for me to follow the example of the DoJ lawyers and spread accurate information abour our current legal system.

Take patents, for example. The purpose of the patent laws is to ensure that the information does get to the public, after a reasonable time for the inventor to reap the rewards of his/her ingenuity (and rightly so).

Otherwise, the inventor(s) of life-saving drugs, for example, could choose never to reveal their secrets. This is what is called a "trade secret." The owner of a trade secret foregoes the legal protections granted by the patent system because they do not want to reveal their invention(s) to the public. The flip side is that the burden of keeping the secret is on them. If it gets out, then they are out of luck for the most part. This is why Coke, KFC, etc., have kept their secret formulas secret for so long.

Patent owners, on the other hand, have a legal monopoly on the subject of their patent for a limited time. In return for this limited monopoly, they make their "secrets" known to the public in the form of a patent. A patent is intended to be a document teaching the underlying invention to the reader. After the time period of the patent expires, anybody is free to use the patent to manufacture, etc. the underlying idea. If not for the patent system, we would not have generic pharmaceuticals. I wonder how much Tylenol would cost without them?

There are flaws in the system, of course, but it has served the U.S. and the world well up to this point.

Re:More LIES!

[Orc-Licker]

"True enough, but you also now have a software package worth roughly $580 on the retail market."

Except that a pirated copy is not worth $580 on the retail market, only the original product could would be worth that -- but then, I'm not sure how this idea matches up with licenses that forbid resale.

"They have roughly $580 less than what they would have had, had you obtained the software legally. Affordability (or lack thereof) is irrelevant"

The user has $580 less than he would have had if you had bought a copy ... $1160 less than if you had bought two copies ... and so on.

It may be splitting hairs, but after theft you have a product worth a certain amount, after illegal copying, you have a copy, which can be copied repeatedly ... thus it's value is harder to estimate.

I understand an argument that says copyright violation is morally equivalent to theft, but I can not agree to a statement that it is either legally equivalent or that the social repercussions are the same.

Ugly math

[los furtive]

In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars.

Hmm...if each item on the server was worth $50 dollars it would come up to a million dollars. But we all know that a DVD costs $30 and a CD costs $20, and I bet you a big chunk of those 20,000 titles are individual songs.

This is exactly the sort of absurd figure the original question was talking about.

Re:Ugly math

[Anonymous Coward]

I agree-- they act as if the server can "serve" everyone in the USA, providing EVERYONE who wants, say, Office XP, a copy. Everyone knows one small server can't do that. Also, they ASSUME that everyone who actually downloads the product were going to have bought it if they could not download it.
I have downloaded office XP, and would NEVER buy it. I think it's a rip-off. I have since deleted it. I use the free Star office. So hah.

Yes they are.

[Crash Culligan]

Sound to me like the marketplace is deciding whether or not I can exercise my fair use rights.

Not quite. The response was saying that the sellers have the right to put their product in whatever tight, restrictive, packaging they want. The quality of the product may be impacted severely, or completely eliminated with such restrictions, but it is their right to produce the product in that way.

And according to that same response, the consumer does not have the right to remove the restrictions to use the product in ways other than the seller will allow. In short, the consumer is buying a pig-in-a-poke, and must keep the pig in the poke, even if it means he can't use the pig as he wants.

It is, as you observed, a seller's market, as the sellers rights to produce the product in their way seem to be trumping the buyer's rights to use the produce in their way. And if you were selling product, you'd trump your buyer's rights to use as well.

The consumer's responsibility then is to consider the desirability of the product, weigh it against the terms of use, and decide whether it's worth the price or not.

Yes, this IS leading up to one of those "Boycott the Music Industry!" messages, but at least I think I built up to it in a much more rational manner. Most people say that just because they hate the music industry. I'm saying it now because I assert that the music simply isn't worth it.

Re:Even prosecutors have trouble determining legal

[Zak3056]

How can a layman ever know if he is breaking the law if an attorney can't even say when a "line has been crossed"?

What's worse is that the attorneys in question are the ones responsible for actually ENFORCING the law.

Addendum:

[bobaferret]

I was worried when I saw the word Addendum: that it would be followed by:
BTW IANAL

Our Laws Should Reflect Our Mores

[Cryofan]

The copyright laws as pertaining to filesharing, etc., clearly DO NOT reflect the mores of the majority of Americans, DE FACTO. This is clearly the case because we have TENS OF MILLIONS of Americans engaging in filesharing. And most Americans do not see this as a crime. Therefore, the current laws in this area do not reflect our current set of mores, in general. Therefore, the laws should change. In fact, the laws have been going in the opposite direction in this area. Why? Because our politicians are not public servants, but instead are Corporate Servants. And these DOJ lawyers, no matter how polite, are engaging in enforcing laws that run counter to the majority mores.

Smart people in Washington

[MisterMook]

Admittedly, though, I can't think of what those might be. Someone smarter than I will have to dream that up

That's making the rather scary presumption that there is anyone in Washington even smart enough to know that there is a problem. Smarts aren't what gets people elected, straight teeth and kissing ass with corporations is. Until those basics are addressed, don't expect anything brilliant from DC.

Re:Smart people in Washington

[Wiseazz]

don't expect anything brilliant from DC

Never do. But, I do expect brilliance from those the politicians hire to do the real work and research... noting of course, that "expectations" are not the same as actual results.

Of course, I have to admit that my "get someone smart" approach is pretty lame. IANAL, and I don't know the precise legal issues (in their entirety) that surround IP and copywrite laws. But, it doesn't take an intelligent person (maybe just observant with a little common sense) to point out what obviously doesn't work.

Or maybe it's just obvious to us.

Re:Smart people in Washington

[MisterMook]

Or maybe it's just obvious to us.

I'm pretty sure that this is the case. Most politicians have corporate blinders purchased for them as part of their campaign funding.

Re:Smart people in Washington

[Anonymous Coward]

American government: by the corporations, for the corporations. Do not assume that the people in DC do not know what they are doing.

IP infringement and valuations

[illumin8]

Great interview! I'd just like to point out one section where it seems that the attorney answering these questions is still out of touch with the realities of the "damage" that is being caused by IP infringement:

The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

I think the DOJ attorneys are still failing to realize that the number of times a copyrighted work is duplicated (or downloaded) is in no way indicative of the number of times it would sell for full retail price in a store. They need to accomodate the fact that 99% of those downloading an infringing work would _not_ buy that work under normal circumstances, so it is _not_ a sale lost by the copyright owner. The vast majority of those downloading or illegally duplicating pirated works are college students that couldn't afford a $500 software package in the first place. They just want to be able to try the software and learn it so they can be ready to enter the workforce with the skills necessary to succeed in today's competitive job market.

I should also mention at this point that piracy actually helps a lot of large software corporations by creating a market for software where none existed in the past. Take Microsoft for example. Microsoft has actively encouraged piracy of their products in the past and it has been a huge success for them. By encouraging piracy, you get your products into the hands of early adopters and the techno-elite who will be making purchasing decisions for their corporations, thereby directly buying more product from you at a higher price.

I'd be willing to bet that the prevelance of MS Windows + MS Office as a desktop standard is the direct result of pirated versions of MS Windows + MS Office that were used on a technology decision maker's home computer, and when he decided on an Office platform for his work he just happened to choose the one that he was "most familiar" with.

Take Adobe Photoshop as another example (another one of the most widely pirated pieces of software out there). Any coincidence that their market share is due in large part to college students that just "happened upon" a free copy and took their Photoshop skills with them out into the workforce after college?

The college students of today will be the executives and corporate decision makers of tomorrow, and every executive knows that you can't use pirated software on your work machines. The few dollars lost to the college students that infringe on copyrights now will be more than made up for by the millions in sales in coming years when those people are in the work force.

I'm all for using the might of the DOJ to punish counterfeiters and organized crime rings that are profiting from other's copyrighted works, but let's leave the poor college students alone. The bottom line should be "if you don't profit from someone elses work, there is no infringement."

Re:IP infringement and valuations

[sabat]

Great point. I'd also like to add: enough with the "Intellectual Property" nonsense. The lawyers in the interview keep referring to the Constitution providing for such an idea; it does not. Nowhere is there the slightest suggestion that ideas (or their implementation) are == property. You cannot own the intangible, no matter how many times you repeat the words. If it doesn't exist, you can't own it. Say it to yourself.

Disagree? Hand me a song, and I'll reconsider. (That's the song itself, not a CD, not sheet music representing the song, but the song itself. Hand it to me.) The song is just an idea we all agree on. It does not and cannot exist in tangible reality.

You cannot own ideas -- or, let's say that you can (even though the Constitution says otherwise). I know your idea (your song, let's say). I would have to conclude that you now own the piece of my brain that knows your song. You can probably charge me royalties for knowing it, unless I can prove I have forgotten it (and how can I do that?). You own part of me.

You might think I'm being hyperbolic, but I think this is a reasoned conclusion: the concept of "intellectual property" is tantamount to slavery. The name itself implies it: you own part of people's intellects.

Is this something we really want? Really?

Re:IP infringement and valuations

[spectecjr]

Great point. I'd also like to add: enough with the "Intellectual Property" nonsense. The lawyers in the interview keep referring to the Constitution providing for such an idea; it does not. Nowhere is there the slightest suggestion that ideas (or their implementation) are == property. You cannot own the intangible, no matter how many times you repeat the words. If it doesn't exist, you can't own it. Say it to yourself.
Disagree? Hand me a song, and I'll reconsider. (That's the song itself, not a CD, not sheet music representing the song, but the song itself. Hand it to me.) The song is just an idea we all agree on. It does not and cannot exist in tangible reality.

You cannot own ideas -- or, let's say that you can (even though the Constitution says otherwise). I know your idea (your song, let's say). I would have to conclude that you now own the piece of my brain that knows your song. You can probably charge me royalties for knowing it, unless I can prove I have forgotten it (and how can I do that?). You own part of me.


There's a big difference between a book and an idea, or a CD and an idea, or a piece of software and an idea.

People have ideas all the time. It takes patience, inspiration, hard work, blood, sweat and tears to turn an idea into a finished work.

Here's an idea for you:
A guy meets a mad scientist, and gets sent into the past to meet his parents.

Here's something a hell of a lot more than just an idea for you:

http://us.imdb.com/Details?0088763
Back to the Future.

Ideas ain't worth shit by themselves. And you're kidding yourself if you think that a song is an "idea we all agree on".

Re:IP infringement and valuations

[Alsee]

It is impossible to own information. Information is not and cannot be property. That does not mean copyrights do not exist or that they are invalid. But it does mean that the rights of copy are different from the rights of property. The term "intellectual property" is an oxymoron.

The use of the term "intellectual property" almost always leads to absurd conclusions that there is something wrong with ordinary copyright law. People constantly make claims that copyright holders should obviously have the same rights as property owners. I have seen ludacis statements that the law discriminates against copyright holders.

For over two hundred years copyright holders have NOT had the same rights as property owners. Copyrights aren't SUPPOSED to be property rights. There is absolutely nothing wrong with the copyright law we had just a few years ago. The law wasn't broken. It's people claiming "intellectual property" who are saying the law is broken. They trying to change the law. It is those changes that create broken law.

-

Re:IP infringement and valuations

[spectecjr]

It is impossible to own information. Information is not and cannot be property. That does not mean copyrights do not exist or that they are invalid. But it does mean that the rights of copy are different from the rights of property. The term "intellectual property" is an oxymoron.

The use of the term "intellectual property" almost always leads to absurd conclusions that there is something wrong with ordinary copyright law. People constantly make claims that copyright holders should obviously have the same rights as property owners. I have seen ludacis statements that the law discriminates against copyright holders.

For over two hundred years copyright holders have NOT had the same rights as property owners. Copyrights aren't SUPPOSED to be property rights. There is absolutely nothing wrong with the copyright law we had just a few years ago. The law wasn't broken. It's people claiming "intellectual property" who are saying the law is broken. They trying to change the law. It is those changes that create broken law.


No one is claiming that "information" is property. The claim is that this particular arrangement of it is.

Information = the alphabet.
Intellectual Property = sentences, paragraphs, chapters, books...

Get it now?

Re:IP infringement and valuations

[Alsee]

If you really have difficulty comprehending that a particular arrangement of sentences is nothing but information I will "fix" my post for you:

It is impossible to own [a particular arrangement of] information. [A particular arrangement of] information is not and cannot be property. That does not mean copyrights do not exist or that they are invalid. But it does mean that the rights of copy are different from the rights of property. The term "intellectual property" is an oxymoron.

The use of the term "intellectual property" almost always leads to absurd conclusions that there is something wrong with ordinary copyright law. People constantly make claims that copyright holders should obviously have the same rights as property owners. I have seen ludacris statements that the law discriminates against copyright holders.

For over two hundred years copyright holders have NOT had the same rights as property owners. Copyrights aren't SUPPOSED to be property rights. There is absolutely nothing wrong with the copyright law we had just a few years ago. The law wasn't broken. It's people claiming "intellectual property" who are saying the law is broken. They trying to change the law. It is those changes that create broken law.

There, I've re-written my post to reffer to "particular arangements of information" so you can propery understand what I meant.

You have not addressed a single thing I said.

-

Re:IP infringement and valuations

[spectecjr]

You have not addressed a single thing I said.

Then we're about even, because you went off on a complete tangent from my original point in the first place.

It is impossible to own [a particular arrangement of] information.

And why do you think that? Certainly, copyright law disagrees with you on that point. And it has for at least a hundred years, so I'm willing to bet that you're in the minority in that view.

Re:IP infringement and valuations

[Alsee]

Certainly, copyright law disagrees with you on that point.

No it doesn't. No where in US copyright law is there even the vaguest hint that copyright is property. I checked. Feel free to check yourself. And I guarantee that no where in US property law does it say copyrights are property, though I admid I have not checked all of it :)

Copyright only grants six specific rights, but they really only amount to three different rights - the right to make copies, the right to distribute copies, and the right to public display. Go ahead, look at that link, does that look like property rights? And those rights EXIPRE. Those rights are also riddled with holes and exemptions. To grossly oversimplify things those three rights only exists for commercial uses.

Property rights have almost nothing in common with copyrights. For starters property rights never expire. Property rights are far more numerous. Property rights are not riddled with holes and exemptions. Property rights grant comprehensive and exclusive control.

Most importantly copyrights and property rights are covered by two entrirely seperate bodies of law. Those laws operate entirely differently. The laws have to be completely different becuase "information" and "objects" have entirely different natures. They function differently.

Copyrights are good and usefull, but there is no inherent right to have a copyright. Look at the US constitution. It states that you have a right to property. It does not state you have a right to have a copyright. What it DOES say is they congress MAY CREATE copyright. That means congress can abolish copyright at will. I'm not suggesting that copyright should be abolished, just showing that it COULD be, unlike property rights. But the real reason this is important is that copyright was created to serve a purpose, the purpose of promoting the creation of art and knowledge so that it can enter the public domain. For a while the governement agrees to place certain limited restricions on other people's freedom reguarding that work, and in exchange it is created and it it is freely given to the public when copyright expires. Because copyrght is created for a reason it is specificly designed to be LIMITED in nature. It is does not grant anything like full property rights, nor is it supposed to. Applying property-like rights to copyright is contrary to its intended purpose.

If copyrights and property rights were the same then the local library could take your without your permission car every tuesday and tursday for senior programs. The 8 year old girl next door could glue ribbons and bows all over your car and bring it into school for show-and-tell without your permission.

-

Re:IP infringement and valuations

[sabat]

here's a big difference between a book and an idea, or a CD and an idea, or a piece of software and an idea.

There is almost no difference; that's my point. And what difference there is does not matter. The movie Back to the Future is an idea. It does not exist in the tangible universe. You cannot own it. Just because it's an expression doesn't mean it's left the realm of ideas.

How am I kidding myself about a song being an idea? If it's not an idea, what is it? A grapefruit? Madonna's performance of "Like a Virgin" is "owned" -- what is a performance? An activity, an idea -- maybe the word "concept" will make more sense to you. It's certainly not a tangible object that can be owned. It's intangible from the start, can be reproduced infinite times, and therefore has no value. It ain't scarce, and in a capitalistic society, scarcity = value.

Try and think of it this way: I invent a machine that clones apples. They're perfect clones. You can eat them safely. This machine becomes very popular. Now, the company that owns the apple tree that we first grabbed an apple from to clone -- now they want money because they "own" every apple the machines clone. It's stealing! Theft! What, exactly, is being stolen? An idea. And they're claiming that every expression of that idea is therefore theirs. Bullshit. Change your business model; you didn't invent the idea of apples to begin with, and yours aren't even very good apples. We just happened to pick your tree;. You might as well be a scribe suing Guttenberg because you own the concept of "a mechanism for putting letters on paper." Riiight. Ideas are just like tangible things, and we should own 'em like we own land. Good idea.

Re:IP infringement and valuations

[spectecjr]

No it doesn't. No where in US copyright law is there even the vaguest hint that copyright is property. I checked. Feel free to check yourself. And I guarantee that no where in US property law does it say copyrights are property, though I admid I have not checked all of it :)

Read Title 17, Chapter 2. Section 202 explains one of the key differences between material property and intellectual property (namely that transfer of ownership of physical property does not confer the intellectual property rights).

Re:IP infringement and valuations

[Alsee]

Yeah, I thought about mentioning it. Unfortunately I don't see how title17:2:202 can be used in this argument. "They" have no problem with 2:202, they clearly see that copyright is seperate from the object. They know copyright is not a "thing". But they still think it is proper to call it property :/ If you can think of a way to use 2:202 in this argument please please flesh it out for me :)

"They" think the fact that copyright can be bought and sold and owned is enough in common with property to call it property. The fact that it has nothing else in common doesn't bother them. They think all of the rules of property should "obviously" apply. :/

-

Missed Q & A

[MImeKillEr]

Q: So, how does it feel to be a corporate tool, working for a company that's despised world-over?

A: Great. I really enjoy helping to make examples of grandparents and poor college students.

Q: You don't have a soul, do you?

A: Nope. I had to sell it to get this gig. But when the Four Horsmen ride again, I get a little stretch of Hell to call my own.

Intellectual property not a Constitutional Right

[MichaelCrawford]

You won't get the RIAA or MPAA to admit this, but you should understand that none of the forms of intellectual property are Constitutional rights. Neither copyright, patent, trade secrets nor trademarks are guaranteed to anyone by the Constitution.

The Constitution grants Congress the power to create intellectual property, but does not require it to do so. Congress could do away with copyright in a single day, simply by passing a bill that eliminated it. They wouldn't even need the President's signature, if they had enough votes to override a veto.

From Article 1, Section 8 of The Constitution of the USA:

The Congress shall have power to... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

it's important to understand that the purpose copyright and patents were allowed for in the Constitution at all is "to promote the progress of science and useful arts" - that is, to benefit society by stimulating the economy, rather than benefitting the creators of the works. That's not what Jack Valenti would have you believe.

I discuss this at some length in the section called Change the Law which is part of Links to Tens of Thousands of Legal Music Downloads.

If you don't think it's within your power to change the law, consider that there are more Americans sharing files on peer-to-peer networks than there were Americans who voted for George Bush.

My article explains some steps you can take to change the law. The following are links to the explanation of each one, just to pique your interest:

• Speak Out
• Vote
• Write to Your Elected Representatives
• Donate Money to Political Campaigns
• Support Campaign Finance Reform
• Join the Electronic Frontier Foundation
• Practice Civil Disobedience

If you agree with what I have to say, please link to my article from your own weblogs or websites. I feel what I have to say in it is important, which is why I've been whoring it all over the internet for days.

Finally, if you're an American slashdot reader, you need to carefully read and thoroughly understand your Constitution. It is the highest law of the land, and the finest expression there is of the principles upon which our country was founded. If everyone did so, it would raise the level of the discussion here considerably.

I'll get off my soapbox now.

The sad state of law enforcement

[nhavar]

Here's what I hear:

"We only prossecute those people that do this often and will be seen by the media to deter other criminals."

So in other words it's okay to break the law as long as you're not in that top 5% of people that they choose to make an example out of.

What would be nice to see is 100% enforcement and then letting the punishment befit the severity of the crime and the prior record of the criminal. I think that 100% prossecution would be a much better deterent than the subjective pick and choose based on multiple factors crap that they seem to be wanting to use. Maybe you walk away with a ticket, maybe you get a year and a sizeable fine, maybe you get 4 years, but if you break the law you get SOMETHING bad.

In my mind you don't create laws and then selectively enforce them. It too easily gives the appearance of favoritism/negligence/stupidity.

I'm personally sick to death of the roll over scenarios - get criminal A arrested but give him immunity because he leads you to criminal B which you give immunity to because he leads you to criminal C which is the big high profile catch. Meanwhile criminal A and B go back out into the world to continue down the path and eventually either work for another criminal C or become criminal C themselves. Start making it difficult for the henchmen by JUST PROSSECUTING THEM, no deals. Then actually reforming them in the Department of Corrections facilities and puting them back on the streets with jobs and something worthwhile to do.

As you take those people out of the loop and the friends and peers of those people see that IT DOESN'T PAY they'll be less likely to be the next henchman for criminal C or more likely to turn in the big guys they know about before even getting involved.

Re:The sad state of law enforcement

[swordgeek]

"In my mind you don't create laws and then selectively enforce them. It too easily gives the appearance of favoritism/negligence/stupidity."

Agreed, and as you imply later on in your post, it also encourages criminal behaviour to flourish, by keeping 'under the radar.'

Prosecuting evenly for copyright violations would be interesting, though--probably 80+% of the population of the western world would be guilty to some degree.

As an aside, there's one problem with your A-B-C scenario. Without some incentive, you won't find a criminal rat on C. The problem is that there's a DISincentive (i.e. the threat of death) which is likely to keep most people's mouth shut. That is to say: I was busted, I'm going to jail no matter what. Now if I rat out C, then there'll be a price on my head in jail in addition to the other problems. No THANKS!

So you lose informants. How do you go after C then?

Re:The sad state of law enforcement

[nhavar]

Yeah you could be right on that.

So then is it just a matter of making the environment right so that criminal C can't recruite new toadies. Or that it becomes so prohibitively expensive to do so that he might as well be in a ligitimate business venture over an illegal one. This might make it easier to sneak under covers into organized crime.

Underlings are the lynch pin of organized crime, they're the sweat shop workers working for cheap and getting dirty doing it. If the underlings become scarce then the kingpins have to start doing their own work which opens them up to scrutiny.

Then again I don't exactly like the idea of filling up the prisons more than they are unless those prisons can do something to reform the criminals and get them on a better path. Our current penal system does little to nothing for this. Punishment is supposed to be a means to an end (reform). Too often today people dispise the idea of criminals getting an education or bettering themselves while being punished. They'd rather that they go without and be held down "because that's what punishment is about".

It's a bad can of worms but I'd rather see 100% enforcement and we start working on the problems than selective enforcement and status quo.

This is telling

[iplayfast]

But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.

The question was about open source developers who are competing against multi-national corperations, not young developers trying to break in.

I haven't finished reading but this immediatly caught my eye.

Re:This is telling

[iplayfast]

Well after reading the artical totally, it wasn't that telling after all. I guess they were using that as an example.

So it looks like,

1. They only prosecute a small number of people but do the people that will make the biggest media impact.

2. They are not as effective as civil litigation. (Since the civil litigation seems to have had more impact).

3. They have a harder yardstick to use then civil ligigation does.

4. They will prosceute any and all, the amount of money doesn't matter. But because they are trying for maximum media effect, they probably do corperations rather then "mom and pops", (although they aren't exclusive).

5. They don't view themselves as technically illiterate, but they aren't making the laws either, and simply try to be a resource for those that do.

6. Fair use doesn't enter often into their cases. If there is a (valid) fair use arguement the case is dropped in favor of? (This is in my mind a shame, since if fair use was brought up more often it would be in the minds of the public more often.)

7. Canadians and other foreign countries are not exempt from the US laws. (What's the point of having other countries then?)

Stealing an artist's MP3's or just murder him?

[Travoltus]

Which will get me a higher sentence?!
Sheesh.

It's copying a damned mp3, not bank robbery.

Question 6

[Meeble]

>>>
That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.
>>>

in a profession where technicalities and wording mean the difference between jail and freedom or life and death - or paying out your life savings..... I'm not really clear why his answer was so pro to the marketing engine. The dinstinct, direct, EXACT definition of those terms are clear, as clear as the fact the marketing machine abuses the term 'theft' because it's mental association with the general public is more harsh than if they used the term 'copyright infringement'.

I guess sometimes a two way street really can be one-way

Jurisdiction matters

[mtpruitt]

There is a long line of cases related to when exactly the Federal courts have jurisdiction over a person, especially when they are in a foreign country, but also in another state. Because it is such a tricky thing, it mostly will hinge on the facts of the matter and the burden on the person involved. But if you can show that they knowingly and intentionally to cause harm to someone in the US, they can be subject to jurisdiction, at least in civil matters.

The other complication here relates to extradition: the short answer is that you usually need an agreement between the two countries that they will respect each other. The crimes usually exist in both countries with similar penalties, and, of course, politics will play a role in their implementation. For instance, Mexico often is bothered by US's execution of Mexican immigrants, and they have been reluctant to hand over suspects. In comparison, the Max Factor refugee that was nabbed by the vigilante on the beach probably was / will be handed over lickety-split.

There have been several high-profile cases lately about jurisdictional issues, specifically related to libel in US newspapers online and citizens in Australia (or maybe New Zealand -- I forget the details). It is definitely an evolving area of the law, and the Anti-Cybersquating legislation in the US has specific provisions to try to deal with this. There are probably other technology related statutes that have similarly tried to establish guidelines.

Re:old myth: N illegal copies == N lost licence fe

[paradesign]

He should think of it as good product exposure. Now that theyve sampled unrestricted versions of his software theyll be more likely to purchase it.

as a side note id like to thank Alias for releasing free versions of their high end software, allowing people to learn it without having to warez it, cause we certainly couldnt afford it. Its great marketing, almost like drug dealers. Get me hooked on their software for personal use, then charge me when i need to use it professionally.

Believing in rights?

[Anonymous Brave Guy]

As has been pointed out before, most file sharing, CD burning, etc. goes on because the public believes that they somehow have a *right* to a song or a movie without paying for it.

I don't think that's true. Most people who rip things known damn well that they have no right to do it. They do it because they think they can get away with it. There is no ethical dimension here, it's just pure greed.

Re:Believing in rights?

[spun]

Sadly, "Can I get away with this?" is the highest level of moral/ethical reasoning most people are capable of.

Re:Believing in rights?

[Lothar 0]

Actually, I think that people have somewhat of a moral obligation *to* rip things and share them with others for the public good of information access. Granted our ethical systems diverge widely on this, but I think calling it "pure greed" is a bit out of line. Why are you so angry?

#2 -- They promulgate the same damages fallacy

[Xylantiel]

The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

This reflects exactly the fallacy we complain about -- the assumption that each copy pirated would have been purchased had it not been available for free. This is ludicrous and the number 1 source of inflated damage estimates.

I also suspect their sentencing example is rigged -- how does it work out if you remove the "sexual" to get "aggravated assult"? shrugging it off to the local level is evading the question.

IHBT, haven't I...

[Anonymous Coward]

IHL. I'll go HAND.

Right to fair use rendered meaningless?

[jdennett]

"As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied."

This appears to be an assumption stated as a fact. One of the issues I would like to see debated honestly and openly is whether fair use law does/should protect your right to make reasonable use of a copyrighted work. It would be most disappointing if it's only application turned out to be in meaning that if you *could* make this use then you would not be breaking laws by doing so.

My feeling is that fair use doctrine has always intended to protect the right to make fair use, not just to grant immunity from prosecution to those who make such fair use. IAAP, though, not a lawyer.

If it is true that current law is clear and that there is no protection in the US for a citizen's right to make fair use of a copyrighted work, then the law needs to be changed. Copyright is about balancing the interests of copyright owners and the public, and the combination of technology and law is threatening to destroy that balance by giving "IP" owners complete control over how and when their works are used.

Let's not even get into estimates of how much many companies spend to avoid IP liabilities, and how much that exceeds their gain from IP assets...

Re: 11) Copy Protection

[Anonymous Coward]

>The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs

The so-called protection on DVDs doesn't prevent them from being copied. It prevents them from being decoded. As a pirate, I could make a bit-wise copy of a DVD and sell it. It's a digital medium, my copy would be 100% accurate.

What the protection does prevent is unauthorised playback. As a consumer, if I choose to buy a DVD from play.com rather than pay twice the price in a high-street store, I may still find my player won't play it because of region encoding. Sony have explicitly stated that they sell region-locked DVD players to prevent you from playing foreign (read "cheaper") DVDs.

Piracy is wrong, but the protection on DVDs is not aimed at, and does nothing to hinder, pirates.

Re:old myth: N illegal copies == N lost licence fe

[Famatra]

This is an excellent point: Illegal copies == N lost licence fees.

As well, I suspect most of the people who pirate software are those that would not be able to afford it in the first place. If they were able to afford it, I am sure it would be just easier just to buy it instead of spending hours looking for it online.

For example, if i were a Lawyer making $200 an hour, it would be worth it for me just to pay the $50 instead of wasting 3 hours ($600 worth of my time) finding it online. If i were making $5 an hour though, it would be worth it for me to spend up to 10 hours ($50) online looking for it.

turn of phrase

[DoNotTauntHappyFunBa]

If so, does /. pay for these interviews, or is the interviewee just using a common turn of phrase?

I would expect it to be against the rules for government employees to receive any compensation for interviews like this. The interview was done as part of their job.

If anything, it would be a public relations expense for the government, in order to get their information out.

Does Slashdot *ever* pay for interviews? Dunno.

"obey the law" as a basic postulate

[garyrich]

Virtually everyone in law enforcement takes the statement " We feel strongly that everyone should comply with the requirements of all laws" as a basic part of the world view - much like a christian or jew would take the 10 commandments. Law breakers == evil, law obeyers == good.

I don't feel that way and doubt the majority of people feel that way if they really thought about it. The civil rights point that you mention is a good example, but it trickles down much further than that.

"Obey the law" is one half of a contractual agreement. Obey the law OR suffer the consequences. The law says I can't drive even slightly more than 65 MPH of the freeway OR I risk a speeding ticket. I don't attach any moral high ground to the person driving 64 MPH versus the person driving 66 MPH. If I drive 66 MPH I am accepting some (small) risk that I will get a ticket. If I drive 90 I am accepting a greater risk of a greater ticket. The sign says that the max fine for violating the HOV lane is $272. I can imagine cases where I would be more than willing to pay that fine if it means being on time to a very critical appointment.

Moral Relativism? Probably, but even taken to extremes it works for me. If I were a religious zealot that gunned down a doctor that performs abortions and kill him I would be accepting the virtual certainty that I would be arrested, convicted of 1st degree murder and put to death. To the zealot perhaps that is a perfectly acceptable price to pay.

People here have the wrong idea though

[Anonymous Brave Guy]

There are lots of things which can be classified as "I want" such as [...]

Yep, and if people had followed the approach so many posters here propose -- breaking a law any time the general population think it's a bad law -- then you'd have none of those rights.

The problem with pure democracy ("one man, one vote") is that it only works in the presence of a universally informed and rational population. Most great advances in society don't come from that, they come from a small group of visionaries or a single inspirational person taking the lead, and convincing others to follow them. Putting such people in government and trusting to their judgement is, arguably, a smarter plan than pure democracy.

Of course, whether you're any good at choosing those visionaries to be your leaders... Well... ;-)

F**k the RIAA

[Anonymous Coward]

As attorneys for the Department of Justice, our mission is to enforce the laws fully and fairly on behalf of the people of the United States

I hate to be the one to tell you this, but the majority of the people of the United States don't give a shit about piracy and/or copyright infringement in regards to privacy. How many pro-"Illegal File Sharing" supporters are out there, and how many people support the RIAA, outside of its employees, lobby groups, and the like (i.e. "normal people").

Go ask any large body of college students (the future voting and educating populace of America) what they think about the RIAA pressing charges against some kids who were just sharing music files (regardless of how many files there were). Ask them what they think about some poor college kids just trying to download the good songs that a few bands put out, and share them with tons of other fans of those songs and bands, and therefore avoid paying some giant company who doesn't give a crap about its musicians or its fans (and who takes 95% of the proceeds from CD sales and most every other sale as well).

When I can get music directly from the musician, I'll buy a CD. When I play a computer or video game that actually lives up to my expectations, I'll buy the game (I tend to buy 2-4 games a month, but download, "play for five minutes" and uninstall another 10-20 a month because most games are garbage). When I see a movie that I'd actually ever want to see more than once, I'll buy the DVD instead of downloading a crappy copy to watch once or twice because I'm just *that* bored.

Maybe if the RIAA and MPAA and all of the companies in their domains actually produced decent product(s), more people would pay for it(them).

Maybe if the majority of the people of the United States actually cared, all of this would matter.

They don't.

Instead of going after people whose only fault is not paying for something that isn't worth paying for, why don't you go after murderers and rapists and the like? I can see going after a huge movie pirating and smuggling ring, or something similarly rare, but to go after kids, or even just lower-class parents who can't afford the educational games that other parents can, or even rich people who are just tightwads....it's just ridiculous. The government and law enforcement agencies of and for the government should be focusing on things like better education and welfare systems (and I don't mean welfare as in "14 year old mom who churns out babies to rip off the system"...but that's another story). The government should be focusing on REAL ISSUES instead of just helping out their RIAA/MPAA buddies who give them millions of dollars a year.

Grow up. You're just a tool of the government and you only exist to keep the masses culled so that the USA gets more money. Go do something real with your life instead of the bs you're doing now.

This is the reason people pirate

[PyromanFO]

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

This may be against the law, but it's also the reason most people I know pirate. The publisher refuses to make thier product available in this manner, so someone else does it for them. In any other industry, this is innovation, but because of copyright it is considered "theft" and "harm". If Ford made a car, and you bought it, and could manufacture an exact copy for a penny a car, you would put Ford out of business. It would be perfectly legal, assuming you changed the Trademarked Ford logo and didn't step on any patents. Or more accurately, you could copy a 1970 Ford Mustang for a penny a car, since patents would surely have expired by then. Do this with software, however, and it's considered bad. To distribute software more cheaply than the publishers is punished, because they might lose business and suffer "harm".

"But you didn't write the software!", that doesn't matter, because in the Ford example, you didn't design the car. What counts is what you actually produce, not what you invested.

Flaws/Paradoxes

[Dashing Leech]

Although I found the responses generally good, I did find some flaws in reasoning and proof of paradoxes within the law.

1. In #1 he refers to a small (10 person) company who's software was "pirated" and available online, and stated "anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further". Hidden here was an assumption that the pirated copies hurt their business, without proof. Perhaps many people found their software, tried it, and bought it (or future versions) for personal or business use. I did this with Matlab (learned on a pirated version years ago, became dependent and skilled at it, taught it to others at my company, and convinced my company to buy 3-4 licenses earning Mathworks $10K-$20).

2. Answers #3 and #7 provide proof of a paradox within the law, and confirm a common complaint. There are at least two legal uses of copying, or circumventing copy-protection for the sake of copying: fair use or expired copyright. However, in #3 he points out that "trafficking" tools that can circumvent copy-protection is illegal, period. But in #7 he also states it is not a violation of these rights to create uncopyable material.

This leads to the paradox that you are allowed to circumvent copy-protection in some cases, but no tools can be made available to do so. Hence merely creating copy-protected material is a de facto removal of our rights because, while you are allowed to circumvent them in the above instances, the tools to circumvent them are illegal.

In other words, by what method can one circumvent the copy-protection for fair use or expired copyright? Does everybody have to write their own tools from scratch (and thus avoiding the "trafficking" part)?

In this context, he seems to be talking about Fair Use as a legal defense for copying, not a right that can be exercised.

Basic economics

[Anonymous Brave Guy]

You need to do a course in basic economics. You are making crude, emotional arguments that do not scale. Fortunately, the people who make and enforce the laws in this area have more perspective.

Of course, if the information is omnipresent, you won't need to go and rip someone else's professionally designed software anyway, because you'll just be able to make something similar yourself with no effort, right? After all, information is universal, isn't it?

Why is legal system is screwed up...

[Dr. Bent]

...the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87

Only a lawyer could give a minimum value as a range of two numbers.

Sheesh...

Question 7

[jafac]

Your definition of "fair use" is interesting.

I'd like to see where #4, in particular, is documented in law. The basis for the first 3 is in the 1996 American Telecomunnications Act.

Where does #4 come from?
Or did some RIAA lobbyist invent it?

Great doublespeak

[Lumpy]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

It's nice to see they are trained to hide the truth inside a distorted truth.

They make sure that any "IP" convictions are massively multiple. "johnny had 300mp3's on his computer... he get's 1500 yers in prison!"

Like everyone says, you get off much easier by performing a murder aggrivated assult, or rape.

Kevin Mitnick

[jafac]

I can't believe NOBODY asked about how the DoJ can possibly justify the treatment of Kevin Mitnick, and how his rights were violated like a teenage groupie in a pro-basketball star's hotel room.

Re:Kevin Mitnick

[ph43thon]

Was wondering a little about that.. though, it is a little off base, since all the question were about copywrite infringement.. I just assumed this CCIPS handled IP stuff. UNTIL the coffee kicked in and I remembered what the phrase "computer crime" meant. This is absolutely embarrassing bs that not one single intelligent question about Kevin Mitnick came up. They specifically brag about prosocuting him (http://www.cybercrime.gov/ccips.html). They clearly believe that it was a worthwhile to make an "example" of him. They want to say that "neither industry nor the government has the ability to dictate this amount." Mitnick's "infringement amount" was astronomical until the end of the trial when they were like, "oh well... yeah I guess it isn't really that high.." I want to know the exact legality of "making examples of individuals"

These guys "walk in here" and spell correctly and use complete sentences and everyone says, "Hey, they're kind of nice.. they're just geeky folks who love technology." Just because they gloss over Kevin Mitnick doesn't mean that if asked, they would not support every aspect of his treatment. I could care less about the RIAA and their civil cases. I want to know about when the the DOJ swings the CCIPS at me because I surfed some corporate network and a jerkoff slugg named John Markoff names me as digital satan in the New York Times. (For dramatic effect, I have grossly paraphrased the facts.)

Just because they spend a lot of time helping out "mom and pop" doesn't really make a difference to me. Do you think they will ever weigh in on the SCO case? Maybe someone can argue SCO is circumventing the GPL. Anywhoo... I'm no lawyer, I'm sure it is "way out of their jurisdiction."

e

Actually...

[Kaki Nix Sain]

... sometimes this kind of calculus is easy. Your example, for example, is easy. Just ask yourself this question, would you rather be raped twice or murdered once? My guess is that getting raped twice is the preference of pretty much everyone. Thus, 2 rapes are less than 1 murder.

Extending this method to cases of infringement of the right to copy is trivial. Would you rather have five people in infringing possession of a song you made or be raped? I know my answer.

Re:old myth: N illegal copies == N lost licence fe

[afniv]

I've never understood this argument. Of course they lost out on business, because why else would someone copy the software? It had to be useful enough to copy! Now, if they didn't buy it because it was too expensive, well that's the copiers problem. The copyright holder dictates what they want to do with the software.

I don't buy some software because I don't like the price. Does that mean I should copy it, because I wouldn't have purchased? That circular logic makes no sense to me.

Sentencing Imbalance

[StormReaver]

Mr. O'Leary talked about how rapists get harsher sentences than copyright infringers, but he is mistaken. He talks about how one count of copyright infringment is punished more leniently than one count of rape, but he overlooks how the law treats counts of copyright infringment. Each copy of the same software is treated as one count. To put this in comparable terms, you would have to consider each pelvic thrust from the rapist to be one count of rape.

So if someone illegally distributes 100 copies of a single software title, he is guilty of 100 counts of copyright infringment. He can realistically get a sentence many times worse than someone who violently and brutally rapes 10 people.

Mr. O'Leary also talks about copyright infringement only in terms of small companies who are totally dependent on one or two software titles when he justifies those extreme sentences. He steers completely clear of multi-billion dollar corporations who will feel nothing more than a temporary pinch (at worst), and who will more likely (according to most research) experience an increase in profits due to increased exposure.

He also steers clear of the concept that just because someone downloads a copyrighted work, he would have bought it had it not been available for download. I can't fault him for this one, though, because everyone and his brother would make than claim if it were a real defense. Basically there is no reliable way to judge someone's intent regarding what he would have done under hypothetical circumstances, so illegally copying must be enforced against all incidents. But still, copyright infringement is punished exponentially harder than all other crimes.

Sort of OT - cost of violations

[sbeitzel]

A while ago (2001? maybe 2002...) there was a column in the San Jose Mercury News where the columnist was saying that she regularly drives solo in the HOV lane. She figured that the cost of the ticket amortized out to a couple of bucks per day as a toll for getting to her office faster.

The problem with her math is that, at least in California, that's a moving violation. Now, you can get a hundred parking tickets per year and so long as you pay them, that's no big deal. However, as you get more moving violations, your insurance rates increase and at a certain point, you will lose your driving license. You'll also find it very difficult to get insurance again, if you've had your license suspended or revoked.

So, when choosing whether to run the risk of accepting a consequence for breaking the law, it's very, very important to understand the full extent of those consequences.

conflicting answers

[v1]

It seems his answers to questions #3 and #7 are in conflict with eachother.

Question #3 asks if passing into public domain is nullified due to laws preventing the bypass of copyright-protection mechanisms. The reply seems to be that this is not the case because it stops applying after the work passes into the public domain.

Question #7 asks if the law supports the prevention of fair use by making a work uncopyable, and the reply indicates there is no law to prevent an author from making a work uncopyable.

By combining these two points, we have the question: "Can an author legally eliminate fair-use of his work by placing copy-protection technology on it?" It would seem that the answer is YES.

Re:conflicting answers

[Mryll]

Exactly - it seems that fair use can be legally prevented if the publisher is technologically capable. The individual user can accomplish their public domain fair use only if they can overcome the copy protection, an activity that he seems to indicate is not necessarily prohibited. Seemingly, breaking the protection for access purposes would not be prosecutable after the work became public domain. However, trafficking in tools or technologies that would enable releasing public domain works from their prior protection would always be illegal.

The situation is an over-constrained problem with obvious paradoxes. They don't have this sh*t figured out yet...

Re:conflicting answers

[rmjiv]

You missed this comment from the answer of #3: Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls.

I think this is one of the most interesting statements made during the interview. From this, it implies that copying a DRM protected work doesn't violate the DMCA, as long as you aren't bypassing the access control also. If I'm not mistaken then, copy-protection technology by itself isn't covered by the DMCA.

Re:conflicting answers

[Alsee]

copy-protection technology by itself isn't covered by the DMCA.

Right. DRM does absolutely nothing to prevent you from copying a file. Just like the CSS on DVD's does nothing to prevent you from copying the entire disk.

Now consider this: You have a DRM'd e-book. You just LOOK at the file and preform the decryption calculations in your head. You have commited the crime of illegally circumventing the access controls just by thinking. The DMCA says that is thought crime.

-

"copy protection on DVDs"

[Anonymous Coward]

"The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs." --- what? O'Leary, you need to read more. The "copy protection system" you speak of doesn't stop bit-for-bit copies of DVDs. It mearly protects against playback of the content of the DVD by "unauthorized" DVD players.

Huh?

[kableh]

As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

And if said product is produced by what is effectively a cartel, what then?

Music is our culture. And as such, the though that a cartel of greedy motherfuckers want to capitalize on it to the detriment of society sickens me.

Loss of market value not theft

[Anonymous Coward]

Loss of market value is not theft.

Even in the case that the causing party operates illegally, the resulting loss of market value is not theft.

While there are certainly better examples, consider the following: suppose that I sell prescription drugs illegally, and at a vastly reduced price. Suppose further that my selling causes the market value of these same prescription drugs at my local pharmacy to be dramatically reduced.

In this case, I have not stolen anything from my local pharmacy.

It is true that I have an expectation to be prosecuted for my illegal dealings, and it is also possible that the local pharmacy may bring a civil suit against me, but it is not true that I have stolen anything from my local pharmacy.

This is because, even though I have through illegal means caused the market value of their products to be reduced, the pharmacy has no right to be successful in selling prescription drugs at all; they may have a right to try to do so, but they have no right to be successful in doing so.

Likewise, the RIAA or the artist Usher, have no right to sell copies of Usher's music at any certain price, or at all. They may find themselves able to do so, and may try to do so, but they have no right to be successful in doing so; they have no right to any particular market value, nor to any market value at all.

Have I missed anything?

Re:Loss of market value not theft

[grwufwuf]

I see what you're getting at, and I'd ask whether you consider the RIAA to be the local pharmacy or the drug maker in this example. I'd view them in the position of the drug maker (not joking here, just following the example :). Then the question of theft hinges on whether you actually paid for the drugs you sold illegally. And if you had stolen the goods then yes a theft has been committed above and beyond the illegal sale of controlled substances. If the physical theft occurred at 3am/whenever at the local pharmacy, then the local pharmacy is the victim, else whoever owned the drugs at the time of the deed, or the drug maker if they hadn't managed to sell the goods before the act.

In terms of digital music files, the production process occurs at some point outside of the RIAA's facilities, after the legal sale of the tangible product when someone makes mp3's from a CD, or buys a copy of someone else's authorized encoded music files from a authorized mp3 file store online. The product is not tangible so it can't be 'stolen', but it is copyright protected. The victim of theft in terms of the copyright (i.e. copyright theft) is then the holder(s) of that copyrighted music (movies/texts too, just sticking mainly to music for this example here).

I believe that movie/music sharing in the manner Naptser et al does really constitute stealing. In light of copyright's new long-long-LONG life span however, I also see the point of those who argue against the prinicple. For example, should a person who sings "Happy Birthday" at a child's party be cited for copyright theft? What about the person/business who makes money off the occasion by hosting the party (resturant, etc), or even the paid clown to sings along with the party-goers? Someone has a copyright on that song don't they? It does not equal GB/TB's of copyrighted music on a shared network, so I'm not saying 'go after those scary-ass clowns, they deserve it anyway!' or anything, but the actions are at some level the same (There's always one person who has to stand up and make everyone else at the party break copyright law, assuming donations aren't collected to pay the royalties afterward; Gee, who invited that person anyway?!).

The RIAA makes tons of money on what they produce, and as long as the sharing doesn't have a profit motive behind it, then one could argue that the affect on the RIAA side is less, and not always negative either. Loss is not nill, of course... Still, I used to buy music all the time after hearing a song I downloaded back before naptser was targeted and the reality set it; now-a-days I could count the CD's I bought this year on one hand, and when I do buy, I consider how much I want it 1, 2, 3 times before buying anything not in the "used CD's" section. Paying up to $20 for a new CD just isn't all that fun a prospect anymore, and if not for sales and discount sellers online and the 'brick-n-morter's, I would never buy new music (and one REALLY good sale, not just the weekly high-volume sales discount on whoever's being sold via MTV, Clear Channel Comm's, whovever, for any given week). I obey the law. I just don't buy the hype anymore as a consequence of all this. That's my experience and 2 cents worth anyway.

"Happy Birthday" likely falls under fair use, but I think it illustrates the question none-the-less.

Re:Loss of market value not theft

[Alsee]

You sort of half-address this point, but I want to make it explicit. In the pharmacy example you reffer to the drugs being stolen from the manufacturer, which is totallt wrong. The person selling the drugs bought one pill, analized it, and set up his own production facility. Even if it is illegal for this person to sell the drugs, no theft occurred at all. Infringment is different from theft. Just like slander is different from theft.

-

Paraphrasings for the BS impaired...

[pla]

(While sarcastic, I have attempted to not outright put words in their mouth, for which they would no doubt find a reason to sentence me to federally-sanctioned assrape).

Q) What services [do you offer] for an open source copyright holder
A) None. We consider the "seriousness of the offense", and since open source neither involves money, nor do we take it serious, we mostly ignore the lot of you. Insert example of an actually for-profit small business suffering that we helped.

Q) Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?
A) They don't actually get worse sentences, they get a maximum of five years per count. Now please don't do the math to figure out that, while most people only commit one or two murders, all you pitiful little geeks carry around "mix" CDs that, at our whim, would get you 800 years in the federal pen to hang out with all those murderers and rapists you mention.

Q) If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration?
A) Look at the monkey. Look! Look at it! Oh, and don't circumvent any copy protection, or else.

Q) how will you prevent this 'going native' phenomenon?
A) We prefer to think of it as "becoming civilized" rather than "going native". Insert "mom & pop" reference again. Mention "checks and balances" that have no relevance since we decide who to bring to trial in the first place. Damnit, stop thinking out loud.

Q) Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones?
A) No.

Q)Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?
A) Sorry, false advertising cases go to the FCC, who just got spanked by congress so don't expect much from them for a few decades.

Q) does [fair use] exist?
A) Yes, for journalists. All you damn thieves (see previous answer) can go pound sand. If you don't like DRM, don't buy - er, license - any new music or movies.

Q) Is a distinction made between different levels of IP infringement?
A) Yes. We prosecute yours, while the RIAA can do no wrong. Mom & Pop. Civil matter, go away. Meep.

Q) Do you know of any cases in which the sender of an invalid takedown notice ... has been successfully charged with perjury?
A) No no no, you misunderstand. They don't actually have to tell the truth, they just need to actually hold the copyright they claim you infringe. We don't really give a damn whether or not they actually have a sound basis for harassing all you plebes and sticking you with huge legal bills - We just care that you don't do use similar tactics on the real "victims" here, the RIAA. (I wish I didn't mock this one so true to the actual answer).

Q) What is your opinion on the case of Daniel Peng?
A) No comment.

Q) do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning?
A) Yes, but not enough. Damnit, if only we could make these things electrocute people who tamper with them! That'd teach you damn hippies.

Q) As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US?
A) While historically the Canadians have told us to go [expletive deleted] ourselves on matters of IP and copyright, thanks to our recent proving of our total and utter insanity in Iraq, we have made great strides in expanding US legal hegemony. We have complete confidence that, within a few years, we won't even need to go through diplomatic channels to simply abduct foreign nationals in their sleep for the purpose of pretending to give them a fair trial here in the Land of the Free.

Re:Paraphrasings for the BS impaired...

[juggleme]

Good post. Made me laugh. Anywho, there was one point from the article that got left out; namely their defending the use of 'theft' et al.(using the worst defense I've heard on the 'net) They not only completely agree with it, but they only look at it from the standpoint of the copyright holder and not that of the "victims" of the legal monopoly. And they say they're trying to maintain neutrality...

"Q)Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?
A) Sorry, false advertising cases go to the FCC, who just got spanked by congress so don't expect much from them for a few decades."

Re:Paraphrasings for the BS impaired...

[InferiorFloater]

I know I shouldn't expect the Slashdot community to try to take in the subtleties of these answers, but still, the parent disturbs me, inasmuch as it's indicative of the kind of blinders-on, hands-on-ears mentality that's really prevalent here (i'm new here, aren't I?) What did you expect, raging opposition to IP law as it stands? The DMCA is indicative of a disturbing trend towards crippled, rights-managed content, but the DoJ guy had an excellent point when he said that it was ultimately up to the market to decide whether that type of shit would fly, and I think if there's one thing consumers are good at, it's attempting to get their money's-worth ( arguments about the actual worth of major-label music notwithstanding ). I personally think the DoJ guys did an excellent job helping to decipher a law that most people don't really understand.

The point is, this law is subtle, and ultimately is a (imo) reasonable extension of existing copyright law to cover new means of distribution. I'm not saying it's great, and its implications scare me as far as the future of the established content industry, but honestly, the real shame is the barratry that the RIAA is engaging in. I don't think we can gut the DMCA just because it's being used in a heavy-handed fashion; it's got a real use, and that's protecting the person trying to make a living off of the software they wrote.

Re:Paraphrasings for the BS impaired...

[pla]

it's indicative of the kind of blinders-on, hands-on-ears mentality that's really prevalent here

I actually did not mean it as such. I really, honestly read and re-read the answers, with the hope that they would make some sense to somewhat attenuate the anti-RIAA and legal-pessimism you correctly identify as rampant on Slashdot. I did not expect the DoJ to say "okay, pirate all you want", but I did expect at least serious answers.

Instead, their answers left me rather dissapointed even in my low expectations. Rather than giving us any useful information, even so far as opinions go, they gave half a dozen printed pages of standard legal doublespeak and CYA'ing. In the entirety of their responses, they only managed to really "say" two clear things - That they will continue to act as the RIAA's executioners; and that morality and reality have no place whatsoever in the performance of the DoJ's duties.

If I had to distill all the questions down to one simple core idea, it would amount to "Do you guys really consider all of us who download even a single MP3, possibly of something we already own, as hardcore criminals who should serve years in prison and pay millions in fines?". And, despite that blunt theme through all the questions, they totally avoided outright saying the "yes" it seems like they would have liked. Perhaps they feared open revolt if it came out that the US government fully supports putting literally half the US population in prison?

I suppose part of the fault lies in my own expectations - I really should not have expected a group of lawyers to say anything meaningful. They actually understand just how screwed up our laws can seem, and, far more than most of us (possibly with good reason), apparently have a deep fear of everything they say coming back to bite them on the keister. Thus they say nothing, in as many words as possible. However, if they had no intention of seriously answering our questions, they should not have offered in the first place.


I don't think we can gut the DMCA just because it's being used in a heavy-handed fashion; it's got a real use, and that's protecting the person trying to make a living off of the software they wrote.

While a tad offtopic (in that I specifically avoided excessive mention of the DMCA in my post), I would like to reply to that anyway.
The DMCA does NOT protect people trying to make a living off their work. IP law already does that. The DMCA makes the implicit (and in some parts, explicit) assumption that the entire human race will violate copyright and steal IP if given half a chance. This runs so absolutely contrary to the core of US law that it amazes me that the supreme court didn't strike down the DMCA days after its passage. So yes, the whole thing does need to cease to exist. It counts as redundant at best, and more likely, entirely unconstitutional. Though, of course, "We the People" don't get to decide that, rich old men in the RIAA's pockets do.

Re:Paraphrasings for the BS impaired...

[crmsndude]

***** I think if there's one thing consumers are good at, it's attempting to get their money's-worth *****

It actually did take a a Nobel prize winner to prove that this is utter bullshit. People act irrationally in the free market because their perception of worth when factoring in all manner of irrational, often times senseless, justifications often trumps clear logic that is assumed in every Economics class taught since Adam Smith.

Moreover, there is marketing--a field which admits that it serves no purpose other than to convince people that they must buy something that they logically don't need or want. The **AA's are the epitome of marketing's success in convincing people that they should be consumers of crap that common sense and logic would dictate should never be bought.

Re:Paraphrasings for the BS impaired...

[Alsee]

the DoJ guy had an excellent point when he said that it was ultimately up to the market to decide whether that type of shit would fly, and I think if there's one thing consumers are good at, it's attempting to get their money's-worth

I am all in favor of letting the free market sort it out. The PROBLEM is that laws are being passed to prevent that from happening. The copyright lobby is doing everything in their power to impose DRM on the market, including writing new law. In a free market a crippled products simply cannot compete. I assume you own a VCR, right? Are you aware that it is crippled with Macrovision? No one would EVER buy a Macrovision VCR if anyone offered a non-Macrovision VCR for sale. They IMPOSED Macrovision AGAINST the will of the free market by getting a law passed saying it is a crime to sell a non-Macrovision VCR. That is an abuse of the law to defeat the free market.

I say LET companies use DRM all they like, so long as you repeal the copyright laws passed in the last few years and don't pass new ones. I support copyright law - the law we has just a few years ago.

The point is, this law is subtle, and ultimately is a (imo) reasonable extension of existing copyright law to cover new means of distribution.

Oh really? Then please explain to me how this is reasonable:
The DMCA says you can go to prison for up to ten years for circumventing DRM access controls. If you have a DRM'd e-book it is perfectly possible stare at the file and preform the decryption calculations in your head and read the text. It's slow and laborous, but IT IS DOABLE. So just by sitting and THINKING you have circumvented the access controls and commited a crime that can put you in federal prison for a decade. THOUGHT CRIME!

Either proove to me how I am wrong and that the DMCA doesn't actually create thought crime, or explain how creating thought crime is a "reasonable extension of existing copyright law".

The law is flat-out broken. Absolutely any law attempting to enforce DRM is inherently broken.

It is already illegal to commit infringment. The DMCA has no penalty against infringment, only circumvention. And as the DOJ guy said, that circumvention is criminal even if it is done for perfectly legal fair use. At best the DMCA makes circumvention+violation a double crime which is totally redundant, and at worst the DMCA makes circumvention+NO_COPYRIGH_VIOLATION a crime and puts people in prison for doing something that should be perfectly legal.

-

The best response...

[geekee]

A lot of people here keep whining about how the word theft shouldn't be used to describe copyright infringement, so I though it was great how the lawyer argued that copyright infringement is actually worse than theft of a physical good in many instances, as follows

"In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real."

Technically, a bad slippery slope (admittedly OT)

[Anonymous Coward]

State laws govern the driving side of the road, and usually refer not to the proper side of the road (left/right), but to driving: against the present flow of traffic or against the directions of a traffic enforcement official. Thus, if one road in the city follows European rules, woe betide you if you drive against the flow on that street.

blah

[Ndog]

Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.

This paragraph clearly implies that the only actual significant consequences that come from piracy are the punishments for breaking the law, not those directly caused by the act of piracy. If that is indeed the case then the laws should definitely be changed. While I don't think he actually believes this, it is telling on what the actual consequences of piracy are when apart from those consequences imposed by our legal system.

Utterly unconvincing

[MunchMunch]

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

The lawyer here seems to be committing a logical mistake. Theft, as was pointed out, is the unauthorized assumption of something to the deprivation of the original owner. Copyright infringement does not meet the latter criteria, but the lawyer here seems to argue that infringement deprives the copyright holder of exclusive rights, which is essentially an injury comparible to a physical loss. This is exactly the kind of flawed logic that the original question was trying to spotlight.

The DoJ's answer did betray a bit more about their position though. By framing their debate as a defense of copyright holders ("To him, the theft is clear and the harm couldn t be more real" and so on), and not a defense of the concept of copyright (which includes those 'infringers' of the public who were supposed to benefit from the original Framers' conception of a copyright bargain), the DoJ looks more and more what they get flak so much for-- a big stick for big business.

No: infringement != theft

[Xylantiel]

Simply put in order to "steal" a copyrighted work I would have to 1) take a copy in order to make more copies, and 2) disable the original owner's ability to make copies (for example by destroying his copies.)

Just distributing unauthorized copies usurps the rightful owners copyright, but does not prevent him from making and selling legal copies.

In the interview, I believe the DoJ lawyers are trying to make the argument that pervasive (digital) availability is equivalent to disabling the original owner's ability to copy because no one would buy his copies. But it is simply not the same as it does not include the vandalism that the word "theft" really implies.

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

Straw man. No one here has said that anyone should copy software because they don't like the price.

Some people do not buy some software because they simply can not afford the price. They have no money to pay for the software. Now this does not mean that they should copy the software. It does however mean that if they did copy the software then the software company has not lost any business through this copying unless they are in the business of giving away software for free.

Also just because a person considers something useful enough to copy does not necessarily mean they also consider it useful enough to buy.

Guarantees of law

[jafac]

I'm wondering if these guys are familliar with Arictle 1, Section 8 of the Constitution, which is the basis of our Copyright law, and the language justifying copyright in the first place:

"to promote the useful arts and science"

Nowhere in there does it guarantee an owner a successful business, or a certain amount of profit.

So why does it matter, even for the Mom and Pop shop, when in their definition of Fair Use, has more or less of a degree of effect on the market for the Property in question?

In fact, it should not, and their #4 definition of Fair Use in their answer to Question 7 is complete and utter BULLSHIT.

I notice you said "come across as"

[gosand]

The lawyers dont come across as black hearted bastards but people who are truely passionate about the field they work in and seem to want to make a diffrence.

I think your statement is right on, but note this:

"come across as" and "seem to want".

I guarantee you, all of them could be black-hearted bastards with the flip of a switch. I found it hard to read their answers all the way through. There was this built-in droning sound, that lulls you into not listening or caring. I have found that lawyers are trained to do this, whether they know it or not. That is their job.

Their answers were standard lawyer answers, which is to be expected. I find it disheartening that our legal system is so convoluted and complex that even lawyers can't simply answer a question. There are always references to something, or clarifications, or interpretations, or one of a thousand things that they can do to twist the law to suit their needs. Unfortunately, our legal system is a tool, and lawyers are the people who know how to use the tool. They craft the tool, they build the system around it, so that they have 100% job security. They can and do argue about anything. Maybe this is more prevalent in garbage like the DMCA and Copyright/IP law.

IMO, they are all snakes, because that is what is required of them. I hope that I never have the need for one of them.

Re:I notice you said "come across as"

[jdiggans]

I found it hard to read their answers all the way through. There was this built-in droning sound, that lulls you into not listening or caring.

Maybe a code of law to make just you and those like you happy would be nice and simple. Crafting law that ensures the stability of a country composed of 280M+ wildly different human beings requires the complexity and attention to detail which seem to bore you.

You would do well to accept the complexity required in the laws that govern us; the alternative is a simple code of law created to cater to the majority with no room for exception.

THAT is the very definition of a 'police state'.
-j

TAKE DOWN THE RIAA WEBSITE!!!

[Anonymous Coward]

Blockquoth the poster:

Here's the cool part: You could send a cease-and-desist letter on your own behalf. The ISP takes down the web site for a day or two to review the allegation. They find it not true and restore the site. You then send the letter again (or arrange someone else to do the same). The site comes down. You can keep doing this indefinitely, since there are no penalties for the false claims.

What if this was applied to the RIAA website?? If we gathered a large group of people, and each individual (presumably someone who shared a last name with something being offered on the RIAA website) sent a Cease and Desist letter.

And then we could come up with a form letter "sorry bout that, thought it was ours". Use their goods against them!

A question that we seemed to have missed...

[Slime-dogg]

If I encode a song, or any data for that matter, using some sort of compression algorithm, do I own the copyright on that sequence of bits? It isn't a derivative work at the bit scale, in fact, I'm willing to bet that the data within an OGG or MP3 is vastly different from the data contained on a music CD.

If that is so, I would own a copyright on a certain sequence of bits. What if I wrote them down on paper? What if I just happened to write them in memory using assembler? What if I happened to write that memory buffer to a disk, and give a name like "blah.ogg?" I would be able to own the copyright, especially if I found a particular use for them anyway, right?

Re:A question that we seemed to have missed...

[EdMcMan]

I would imagine it would be the same as copying a song from a cd, to say a tape. The song is what is copyrighted, not the bits.

MOD PARENT UP

[MichaelCrawford]

I would say "Insightful" would be appropriate.

Re:MOD PARENT UP

[Creepy Crawler]

It's more "Inciteful" if you ask me. But you didnt ask me, so there ;-)

Re:old myth: N illegal copies == N lost licence fe

[whatch durrin]

I sympathize with your argument, but how does that get written into a law?

How does a defendent honestly prove that if they hadn't obtained an illegal version of the software they wouldn't have purchased it anyway?

While I agree with the sentiment of your point, I think it's not enforceable.

most important questions unasked

[noldrin]

It's sad that the most important question facing computer users today were left unasked. What are the legal liabilities of having a computer or a network in terms of music piracy. If someone using my IP address to distribute music, when am I legally liable and what safe guards do I have to take to secure my network and computer from being used to distribute music.

Re:Even prosecutors have trouble determining legal

[ctr2sprt]

The intent with "fuzzy" rules is to use common sense to fill in the blanks, as the DoJ lawyers implied. This gives the law the flexibility to apply in cases where a normal person would think it should, and not apply in cases where it shouldn't. The advantage is that the law has the flexibility to adapt to new circumstances, which can be either a change in society's opinions (effectively nullification) or a recognition of a new problem or solution. It's also easier to remember a set of "fuzzy" laws, since a single law can cover a much wider group of behavior. Not only that, when you explicitly list things people may or may not do, you always run into people who try to skirt the limits of legality; the people who do things which may be technically legal, but obviously are not intended to be. So either you have to let that person go, which seems wrong, or lock him up despite not breaking any laws, which also seems wrong. (Hopefully the law would get changed, but no matter how good you make a narrow law, this sort of thing is always going to happen.)

Obviously you need some compromise, or we would just have one law stating "Don't do bad things, or else." But I think this sort of fuzzy law should be encouraged, since it allows the 12 people who sit in juries to apply the law as they see fit, not the way the politicians think. Of course, this is based on my assumption that 12 average Joes and Janes are going to be more reasonable than 12 average congresscritters, which may be flawed. But...

Fundamental Question

[mobileskimo]

Wow, that was a good long read. He's on the ball with the answers and writes as well as I would expect.

However, most of the questions and subsequently the answers are quite technical (not technical as in gadgetry but technical in process). While the details of implementing the philosphy are all there and the process looks good, we haven't traveled back up the chain to review the philosphy first.

As many have pointed out, why is copyright/IP infringement a criminal investigation? How have we come to place criminal penalties for issues that impact people's financial security to be quantifiably comparative to those of real harm, emotionally and physically as in the case of rape, murder or even aggravated assult with weapon? How can we justify prosecution of copyright infringement destroying the stock value of a multimillion $ company by destroying the life of an mp3 leeching headbanger?

Correct me if I misrepresent the perception that most people would think penalties for criminal activities are meant to deter menaces to society at large. We imprison burglars and rapist because we believe the behavior to repeat with other victims that would suffer emotional distress and physical harm. MP3s?

Would I be inaccurate to suggest that restitution and compensation for someone's greed encourages corporations to nudge the DOJ to review something more closely? There are no restitution or compensation for a victim inflicted rape or murder.

How do you equate these?

new myths

[Merk]

In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

This paragraph convinced me that their view is completely different from mine, and that to me at least, they "just don't get it".

Just because someone has files on their server that correspond to software packges that sell for thousands of dollars, some of which have been downloaded multiple times does *not* make the value in the millions of dollars. A person who downloads one of those files and uses it rather than buy the software for a thousand dollars costs the company that made it a thousand dollars, but that doesn't make that file worth a thousand dollars.

Even once the file is moved off the server doesn't mean that it has acquired a worth. If Joe Blow downloads it, burns it to disk, then puts it in his CD collection, guess what, it's still not worth anything. The only point at which it begins to have an effect on any bottom line is when someone starts using it as an alternative to buying the original.

Say I come across one of those servers and spot Megacorp Jet Designer 4. "Wow", I say, "That software costs $50,000 a copy!" So I download it, and play with it for 10 minutes or so. But I'm not in the business of designing jets, and I don't have any use for the program, so I burn it to a CD (in case I ever want to play with it again), and move on with my life.

Now how does this affect Megacorp? It basically doesn't. Had I not downloaded the program nothing would have changed from their point of view. There was not even a remote possibility that I would have otherwise bought the program.

It is even possible that software downloaded from sites like this will eventually help a company's bottom line. It allows people who would otherwise not try out a product to try it, and if they like it then they may eventually buy it or convince an employer to buy it.

The only honest way to estimate the value of the software on a site would be to use a formula that accounts for: number of sales cost because the potential customer got the product free, number of sales gained because the potential customer decided to try it after buying it, number of new sales due to the increased popularity of the product, the number of people who buy the next version of the product because they liked the previous version which they got for free, and so on.

To my mind, the content people have always ignored everything but the number of cost sales. I would guess that in the short run, that there are more lost sales than there are gained sales, I think in many cases these companies win out in the long run. We're all eagerly anticipating Doom 3. Would iD be where they are today if the first Wolf3D games they released had been completely locked down with DRM, rather than shareware games?

If any of you DoJ lawyers read this post, please consider it. The math isn't as simple as you seem to want it to be.

Re:breaking the law -- the social contract

[Beryllium Sphere(tm)]

Here's a quote from Chief Joseph which eloquently describes the bargain citizens make with their government:

"Let me be a free man- free to travel, free to stop, free to work, free to trade where I choose, free to choose my own teachers, free to follow the religion of my fathers, free to talk and think and act for myself- and I will obey every law, or submit to the penalty"

Just Curious

[smyle]

From #1: These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences.

Does this mean Microsoft would be likely to be prosecuted?

Re:Even prosecutors have trouble determining legal

[Allegro]

Because ignorance is no excuse! Duh!

Really, though. I still believe that the above statement I just made is something that prosecutors, judges, politicians, and cops tell themselves so that they can sleep better at night, even thought they've single-handedly ruined hundreds of lives.

Laws are Not Absolute Measures of Justice

[Phoenix666]

We feel strongly that everyone should comply with the requirements of all laws.

So, Rosa Parks should not have sat in the White section of that bus, because it was illegal? Gandhi should not have broken British laws because they were, well, laws? Should every single American who exceeds the speed limit go to prison? Should every one of the 50 million Americans who share files on P2P networks instantly go to jail?

Hmmm, lemme think about it for a minute...NO! As somebody on /. pointed out a while back, accepting a law bought by a corrupt, self-serving multinational or trade group as what is right is ludicrous. I invite these lawyers, and folks like them, to go back and read Durkheim again. He said something interesting about what constitutes a crime: when a sufficient number of a society come to regard an act not as a crime, but as normal, then that act in fact is not a crime. Can you throw an entire population in jail, or have them executed? Can five lawyers from the DoJ really take it on themselves to per/prosecute 50 million people as criminals, or is it they who should modify their behavior?

For better or worse, folks, this is how people in government think. All the talkin' at 'em in the world is never going to change their behavior, so we must compel them to go somewhere else, and do something else. That means standing up and doing something, not just posting about it on Slashdot.

Damage Calculations

[igotmybfg]

The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Wrong. You are assuming a damages model which looks like this:

damages = number of products * number of thefts

This seems inviting at first but it is in fact not the right way to look at it, because this model assumes that every time a product is stolen, damage is caused to the company in an amount equal to the product's current sale price. The rationale for this is that the model assumes that were the thief not able to steal the product, he/she would in fact buy it at full retail price. Obviously, this is not true for everyone. Just how large a percentage of the thiefs in question would do that becomes a variable in this improved model:

damages = K(number of products * number of thefts)

Of course, determining (or at least approximating) K then becomes an issue. However, I think we can all agree that it is certainly less than its current value of 1.

Right. But not only that...

[blunte]

The other 98 copies actually serve to improve the visibility of the software. In a strange sense, they're gaining marketshare thru the illegal distribution of their software.

It's actually similar to companies selling their items at a price way below cost, or even giving those items away, in an effort to gain marketshare. Then once you have a bigger market, you find ways to get that bigger market to pay you.

There are lots of examples of this behavior. Sometimes it's even illegal as a company to give your products away like this.

The only difference here is that the company that wrote the software didn't choose to release it for free. That doesn't mean they're not actually helped by it being out there. Speaking of which, I wonder how many copies of Photoshop Adobe could sell if they priced it "reasonably"? I wouldn't think twice about paying $150 for a full version. But since they don't get the clue, other companies like Jasc Software created a great product, PaintShopPro (which costs about $100) to fill that void.

Besides all of that, what if DRM were able to keep copyrighted music from being heard by anyone but the person who purchased it? How many albums would be selling then? Imagine this conversation:

Buyer: Dude! Check out this new Fluff Girlz album I just got! It's really great, you should go buy it. They start out with some guitars, and then they start singing. And in the second track, they have a saxophone playing. It's really choice.
Friend: Can I listen?
Buyer: Sorry dude, nocando. But here, check out the album art.

It's the "free" distribution of music, via audible sound waves, that generates interest, and causes people to buy music. In much the same way, free copies of software help build interest, which can lead to sales, assuming pricing is reasonable.

you�ll all be dead before that mess of **** hits

[Anonymous Coward]

Supplement for the BS impaired (Fcck'ng cheap hack bureaucrat law*ers):

"Your question deals with how the DMCA might affect works that have entered the public domain. As you know, copyright law grants copyright holders certain exclusive rights, such as the right to copy and distribute their work for a period of time. Currently, the length of the copyright term is the life of the author plus 70 years; for works made for hire, it is 95 years from first publication or 120 years from creation of the work (whichever comes first). After this term expires, works enter the public domain and are presumably available in some form that can be read, viewed, heard, etc., by the public... ...While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them... ...We have not encountered any criminal case that involved this specific issue. Indeed, we are not aware of a court case either civil or criminal that has addressed this issue directly..."

So... like... you'll all be dead before that mess of **** hits the fan and I'll have escaped with my pension... so wtf cares!

Please Read "Practice Civil Disobedience"

[MichaelCrawford]

In Letter from Birmingham Jail, Martin Luther King wrote:

one has a moral responsibility to disobey unjust laws.

Please learn more about how the nonviolent refusal to obey the law can foment revolution without a shot being fired at:

• Practice Civil Disobedience

Prosecutors are lawyers devoid of sense & thou

[zenyu]

So, how does one define a count of infringement?

Make a reasonable guess such as "one count per song" and then multiply by 20,000. Take that number and multiply by $150,000 for the dollar amount. Then add whatever amount makes it larger than the last case they prosecuted.

These prosecutor types are the worst type of lawyer, that defense of calling copyright infringement "theft" was just strange and incoherent. Take a lawyer remove the bits of common sense left and you have a prosecutor. They see black where everyone else sees gray, and under Ashcroft they see black where there is white and white where there is black. It's no wonder they don't let their defendants have lawyers and don't follow judges' orders anymore.

Not that judges are much better. I along with about a hundred potential jurors all got rejected from a drug case because none of us thought marujana should be illegal to sell to adults; some of the women were even threatened by the judge. How does anyone have a fair trial if the judge rejects all your peers from the jury? Meanwhile these federal prosecutors keep enforcing the idiotic laws from DC on the citizens of states where the people have rejected those laws as immoral and unconstitutional. I was happy at the time that the whole Manhattan jury pool I was in was excused days early, but it made me worry about whether we had any justice system left over from the pre-cold-war days.

The drugs laws are especially bad in New York so this may be different in other states. In NYC it seems that if you once visited some apartment that may have had drugs in it and you didn't know about it you get 25 to life, while if you raped small children and sold them crack you get 8 months because you cooperate with the prosecutors. Both Republicans and Democrats have been talking about how unjust these laws are for decades, but then they spend the entire session not passing a budget and then spend five minutes disagreeing about how bad these laws are at the end of the session at like 2am. Prosecutors seem to be the only ones that like them because they don't have to find a jury that actually believes in these immoral laws when they can force everyone, no matter their innocence, to plead guilty.

"Why don't you plead to this murder." "Yes we know you were in another country at the time, but we have a reliable witness to your other crime. The homeless man that sleeps outside your door swears he saw you with a bag of pot. You can spend the rest of your life in prison for that or just 3-5 years for this murder that the media has been bugging us about."

MOD PARENT UP

[NeoNormal]

This is an insightful and informative post.

Re: answers from the civil side

[kaltkalt]

Just one answer: Billable hours. Very simple. Unlike the DOJ lawyers, the civil lawyers are paid by their clients (i.e. RIAA)solely to bring these lawsuits. The DOJ lawyers have (government) salaries and are not paid by result. An interview with lawyers from the RIAA "civil side" would not be interesting at all. Either they'd come right out and say "we're doing it because they're paying us very well" (unlikely) or they'd just bullshit thier way around any question, using words like "theft" and "stealing" and "billions of dollars in lost industry profits." Maybe I have a narrow attention span, but I don't find that interesting at all.

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

No one here has said that anyone should copy software because they don't like the price

Excuse me???? Which slashdot are you reading? This is the very argument made every time there's a discussion of IP on slashdot.

Bravo

[Anonymous Coward]

Thank you DOJ. This community greatly appreciates your time. Great answers.

Re: Civil Law

[kaltkalt]

Civil law does have a much easier burden of proof to meet. Preponderance of the evidence is "more likely than not" but that does not mean "only half" the jurors are needed for a verdict. Not even "more than half" (i.e. 7 of the 12 jurors).

The jury is told what standard of proof must be used in the jury charge. They are told to answer the questions based on whether a party has met the preponderance of the evidence burden of proof in a civil trial, or the beyond a reasonable doubt BoP in a criminal trial. There is also a "clear and convincing" intermediate standard, but let's just ignore that for now. In a civil trial, here in Texas state court you need 10 of the 12 jurors to answer in your favor to get a verdict. In a criminal trial, it must be unanimous. Of course, Copyright suits, both civil and criminal, would be brought in Federal court (or subsequently removed thereto). There the jury is somewhere between 6-12 members in civil trials and usually 12 in criminal trials, and in both criminal and civil cases the verdict must be unanimous.

It is most definitely easier to get a jury verdict in a civil trial than in a criminal one (as the party with the burden of proof), but only half of the jury can never win a case for anyone, even if the burden of proof requires only a showing of preponderance of the evidence.

not hardly

[gosand]

You would do well to accept the complexity required in the laws that govern us; the alternative is a simple code of law created to cater to the majority with no room for exception. THAT is the very definition of a 'police state'.

That is not the definition of a police state. A police state is one where the government uses repressive controls against the social, political, and economic lives of the citizens. Usually it is by some police force.

So you think we DON'T live in a variation of a police state?

Our laws are not complex out of need, they are complex because they are constantly being tweaked by greedy, purchased politicians with an axe to grind. They slip bills into the system on backs of other bills, either out in the open or under the table. They are complex because they are crafted to be that way, so they can be manipulated when the need arises. Unfortunately, there is no alternative, because we are so steeped in our current legal system there is no way out.

Re:not hardly

[jdiggans]

That is not the definition of a police state.

I was trying to be associate the lack of wiggle-room w/ a police-state, I'm aware of what the word means, but thanks. :P

Our laws are not complex out of need, they are complex because they are constantly being tweaked by greedy, purchased politicians with an axe to grind.

The second half is certainly true, but I disagree with the first half. Human governance must be complicated to ensure fairness for all with some degree of gray area no matter what the situation. That this also happens to invite unscrupulous politicians to file their own personal whims is but an unfortunate side-effect.
-j

Re:not hardly

[gosand]

Human governance must be complicated to ensure fairness for all with some degree of gray area no matter what the situation. That this also happens to invite unscrupulous politicians to file their own personal whims is but an unfortunate side-effect.

Ahh. I agree. BUT, what they try to do is build it into the laws. Instead of allowing the GOVERNING of the laws to take care of the gray areas, they try to tweak the law to cover it. It seems they would be trying to cover all their bases, but instead it muddles things. They rely so much on prior cases and judgements, that nobody really thinks anymore. It is all just a pissing match, and the side with the "better" lawyer wins. Humans should govern the law, but it seems to me like the reverse is true.

Access protection vs. copy protection

[HTH NE1]

The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs.

I think you meant, "The access protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs," as you had distinguished in an earlier question. CSS is an access control, not strictly a copy control.

When a copy control is also an access control, the DMCA effectively prohibits circumventing copy controls, including when works enter the public domain. (That there has as yet been no case law about this does not invalidate the hypothetical.)

There should be a legal requirement that works protected by an access control be rereleased without an access control by the holder of the copyright at the time it enters the public domain and/or provide for the holding in escrow such works in unencumbered-by-an-access-control form for their release upon entering the public domain.

Further, all releases of public domain works must be free of access controls and there be no systems that require an access control be present on a work before accessing that work.

Yes, that means that (for example) there be a legal way to play public domain XBOX games that do not have an access control. It is outrageous that I should have to buy a license from Microsoft to get public domain games signed to play on an XBOX.

Fair Use: Hypocrisy, misunderstanding, or what?

[mesozoic]

I'm disturbed by one of the more evasive answers (question #7):

As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

I fail to see the logic in this statement. Essentially, the reply is, "This right exists, but it is not a violation of that right if the consumer's ability to exercise that right is removed."

While I am fairly libertarian, and I agree that market-driven solutions are often the best, this discussion centers around consumer's legal rights regarding a purchased product. I am disturbed that the Department of Justice's answer is, "If people are willing to buy products which do not allow them to exercise their rights to Fair Use, then we're fine with it."

Suppose people buy those products because no alternative exists? It is one thing to suggest customers boycott copy-protected CDs; that is a valid argument. But suppose Windows Longhorn is found to violate fair use rights by restricting a user's data? Are we to believe that consumers, who will undoubtedly purchase new Windows machines, are implying permission to restrict their rights to use those machines?

I am thankful the Department of Justice is only one piece in a web of checks and balances, and that there are other avenues through which the American people can seek a balance in copyright law, because it appears to me these fine men are not seeing part of the picture.

If they don't know, how would I know?

[Zelxyb]

Since the United States Department of Justice refuses to tell me what rights I have for fair use, I am going to go ahead and do whatever I want.

Yes, everyone predicted they wouldn't answer these, but I held out hope that we would actually find out what the law says we can do.

(Yes, I'm pissed off)

Re:Even prosecutors have trouble determining legal

[Fesh]

If you are doing something new or different, that's a different matter.

That's the scary bit there, though. Being innovative and creative now entails running the risk of having your butt reamed by the legal system. If you have to fight a case all the way to the Supreme Court to get an answer to the question "Can I do this?", the answer is "NO". Faced with that, I think some who might otherwise be inspired to do something new and interesting (or dare I say it, useful) would rather not bother.

Re: Civil Law

[terrymr]

This is why, even though OJ was found not guilty in a criminal trial, the exact same evidence was enough to sink him in a civil trial.


Actually one of the main reasons different outcomes was that the civil judge basically blocked most of the defense case from being heard (ie their allegation of a conspiracy to frame OJ). While the criminal court allowed that line of argument.

That's not your "right"

[Anonymous Coward]

You don't automatically have the "right" to free music regardless of the wishes of the copyright owner. If the owner of the music chooses to let you make copies, you have the right. If they do not, you don't. Plain and simple.

Infringing on copyright is not a "right".

Re:That's not your "right"

[Anonymous Coward]

And it's their right to keep information from the people? Copyright terms have been extended far beyond what they should be. Free the minds of the people.

Re:Even prosecutors have trouble determining legal

[reallocate]

>> Being innovative and creative now entails running the risk of having your butt reamed by the legal system....

Where's the innovation in copying something? The technology was already in place; othereise, you couldn't have made the copy.

Those lawyers I consulted about copyright made one point especially clear: The technology used in a potential fair use case is not relevant to the question. It's the extent of the copying that is at issue, not the tool used to make the copy.

i call bullshit

[thoth_amon]

<rant> This character gives me a good case of heartburn. I guess in his position he can't come out and say "You're right, the DMCA sucks in many ways, contact your representative to change it." But I don't like the way he tries to dodge personal responsibility for his actions in upholding that obscene law and the other gross injustices of copyright law. HE chooses to spend his time upholding that law, and therefore HE PERSONALLY is responsible for it. Can't pass that off on Congress. He doesn't have to stay there and support that crap. So, Mr. O'Leary, may I suggest you find the balls to just say, yes, I choose to support that law, as do all law-enforcement officials at the DoJ. Yes, ultimately you agree with and support the sentencing guidelines through your actions. That's right, it's YOU, not all those other people. </rant>

Thanks, that's all.

Re: Civil Law

[Ruds]

I'm not sure about the number of jurors, but perhaps more important is that the jurors only have to decide if the preponderance of evidence points to violation (that is, are you 50% sure the defendant is guilty), rather than beyond a reasonable doubt, as in criminal cases.

Re: Civil Law

[Ruds]

Oops, much too long without refreshing :)

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

This is an important point about assessing damage.
However, it is NOT a statement that _no_ damage has been done, nor that the business has actually been helped out (not that you are saying it is).

A small company having its software 'sampled' would be sure to notice a difference in their sales, good or bad. If there was an obvious (substantial) rise in sales for no other explainable reason than piracy, it would be idiotic to start prosecuting people. Likewise, a significant decrease in sales (for no other explainable reason) would be evidence for a piracy being a causal effect, and prosecution would be a logical course of action.

Other scenarios:
- A company actually produces crappy products. Now that people have a chance to try them out before buying them, they don't waste their money on it. The company loses business.

- There is no obvious effect. The exposure of the products results in some extra sales while also resulting in some non-purchases.

Re:Question #3 (MOD PARENT UP!)

[Anonymous Coward]

This is really INSIGHTFULL.

Question 7: Fair use

[tez_h]

I find the two sentences at the end of the last paragraph of the answer to question 7 interesting:

Fair use is among the many factors that prosecutors consider when determining whether or not to bring criminal charges. Having said that, however, fair use is not typically at issue in the cases we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

This seems deliberately blind to the fact that many a recent legislation has been passed that attempts to make circumventing copying protection qua copying illegal.

I suppose what I would have really liked is a more explicit description of the DoJ's attorneys' stance on the current legal situation in the US concerning IP. Too much law, restriction? Requires further 'modernisation'?

-Tez

same old lies

[loxosceles]

These people peddle the same old "damage" lies.

If someone breaks into your house and steals jewlery, it matters less that they might not have bought the jewlery if they couldn't afford it. They are simultaneously depriving the legitimate owner of its use.

Now take the example of an architecture student pirating AutoCAD Arch. Desktop (several k$). Is there any harm? In the vast majority of cases, such people would not buy the product if they couldn't get it for free (or close to free). The legitimate owner is not deprived of either use nor profits.

Someone ought to do a real, unbiased study of exactly those dynamics to determine more reasonable punishments for filesharing, and more reasonable thresholds for punishment. Individual piracy of more expensive software should in fact be treated as less serious because the tendency is for Companies to be (by far) the primary purchasers of that software, so the damage done by individual pirates is correspondingly less.

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

This brings up a point made before. There is no way for us to know what we should or shouldn't do. If they don't entirely know how the laws work, how should we know hwo the laws work?
I'd hate to be victim of a law (however just/unjust the law or my actions would be) that I don't know nor understand. If the legal system doesn't chance, many people will have that happen to them.

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

SHEPHERD What are you doing?
SYDNEY I wanted to leave the building before the press corps got here.
SHEPHERD I have those same thoughts every day of my life.
--The American President by Aaron Sorkin

Just how complex is that law? You can't know until you do this for a living. Just ask Lessig.
--YIAAL, BIANYL

IP Regime?

[Xeth]

They mentioned an "intellectual property regime". Now there's a regime I'd support changing...

Assumes infringement victims are all corporate?

[gidds]

Interesting stuff, but one aspect worries me: they talk a lot about corporate victims of copyright infringement, but very little about private individual victims. One paragraph tacked on the end of the answer to question 1, to be precise. Later on, when answering question 4, they speak only of corporate victims.

Maybe this is an unfair inference from a relatively short discussion, but they seem to be assuming that copyright infringement mostly occurs against companies, that material copyrighted by private individuals generally doesn't get infringed. This may or may not be true, but it's a worrying implication. As mentioned in question 1, copyright by private individuals is very important to a huge amount of Open Source software, and we need to know that the authorities will treat it just as seriously as copyright by corporations. In fact, even more so considering its greater difficulty of assigning monetary values to infringement.

Re:old myth: N illegal copies == N lost licence fe

[Sycraft-fu]

You are missing the point. The point isn't wether you should or should not make copies of software you can't afford. The point is that you would not pay for that software if you couldn't copy it, since you can't afford it.

Take a university student for example. Suppose he has about $50 to his name and makes about $300/week, all but $20 of which goes to necessities (food, palce to live, etc). Now suppose he gets a copy of Maya Unlimited from a friend because he wants to play with it. Alias/Wavefront did NOT just loose a $3000 sale. Had the student not been able to get a copy, he simply would have done without, having no way to afford it and no need for it.

There is a whole lot of copying that goes on that is like this. People copy something because they can, they'd kind of like to have it, and at a cost of $0, they are willing to take a copy. However the item is not worth the actual procie to them, either because it doens't have that much utility, or because it is beyond their means. So, if there were some infallable copyprotection such that they could not obtain a copy, they'd just do without.

mod parent up

[InferiorFloater]

that's exactly the thing - no one ever said it was illegal to circumvent copyright protection, it's just illegal to traffic in devices whose main purpose is to do so. I wish I had mod points, because the fine points are the most important ones to grasp here, and make the difference between outlawing your right to do what you want with content or outlawing distribution of mechanisms the same.

Watch out for this verbal trick: false equivalence

[geekotourist]

Watch out for this trick of using a phrase like "pirated software, movies, music and games" where 'pirated...music' includes fileshared songs. This phrase tries to make all of these items equivalent to each other: they aren't. It implies "we can't talk about software piracy without also talking about music downloading." No, we can and we ought to talk about these separately. Yes, technically these are all 'unauthorized copies' but that verbal common denominator isn't sufficient to treat them identically.

It is analogous to law-makers announcing that they've doubled the enforcement and punishment for "carjackers, grand theft auto, speeders and drunk driving." Yes, technically all involve broken laws and cars but that doesn't mean that they naturally group together. The police aren't going to get- and shouldn't get- the same kudos for stopping a ring of speeders compared to stopping a ring of car thieves, for example. Continuing the analogy, imagine if the police started using the phrase "ring of speeders" all the time, as if there was a hidden speeder mafia, making speeding out to be an organized crime. At some point you'd have to say "Stop talking like that- mixing the two together! Speeding isn't burglary!"

So, DoJ, I know you guys are working hard and all that but... "Stop talking like that. Unauthorized MP3 sharing isn't the same as factories stamping out bootleg DVDs. Catching sharers at a dorm isn't the same as catching the mafia who filled a shipping container with bootleg CAD software CDs. Not the same, so stop talking about them in the same sentence as if they should get the same sentence."

And an observation about those fines, comparing software copies to song copies. Software companies generally don't authorize anyone else to copy and send their commercial software out. But right now anyone can legally make thousands of digital copies of songs to send out- so long as they are temporary. How does the RIAA value one person listening to that copy of one song? Somewhere between $0.0007 and $0.0014, based on webcasting rates. I know, Napster wasn't the same as webcasting. But then Napster wasn't the same as a factory pressing out DVDs in Malaysia either.

Or in other numbers...

• $150,000 fine for each unauthorized copy of a $1,000 software program = 150:1 ratio of punishment to value of item
• $150,000 fine for each unauthorized copy of a $1.00 song = a 150,000:1 ratio
• $150,000 fine for a $0.0014 song = a 107,142,857:1 (100 million to 1).

Again, not that sharing is identical to webcasting (although the behavior and motivation seemed to be close) but it isn't identical to those $10 copies of OfficeXP in Shenzhen either, even if they all involve copyright. (And once more for the analogy) Just like speeding isn't the same as letting the meter expire, but it also isn't the same as carjacking, even if they all involve illegal uses of cars.

mp3 name vs mp3 content

[Anonymous Coward]

Based on the Usher debacle, it seems as though the RIAA is targeting user's based purely on the name of a file, e.g. "usher.mp3".

If I traded a file online called "metallica.mp3", does that automatically imply I am breaking the law? It could be a recording of me clashing together some pots and pans.

I would think the RIAA has to get a hold of the file and verify the contents to be of said copyright holder before passing judgement.

If so, can you imagine how long and how much manpower would be required to download and listen to every single file they scan ?

Re:Some Fair Use Examples

[John Murdoch]

Hi!

It seems strange that we, as a people, would allow laws to become so complex that even the attorneys (who have been specifically trained in the law) would have trouble giving a specific "bright line" definition of when something is Fair Use, or not. How can a layman ever know if he is breaking the law if an attorney can't even say when a "line has been crossed"?

It isn't because the law is needlessly complex--it is because humans are immensely complex. There is a seemingly infinite number of ways in which written/recorded material can be used--and because of that infinite number of ways, you'd be foolish to try to nail down "bright lines" to say absolutely, without equivocation, what is Fair Use and what isn't. Consider some examples:

• You are in charge of a memorial service for an aged co-worker. You get spiffy paper and use a really nice printer to produce a folder to hand out to all the people who come--and because it has special meaning to the deceased's family, you include the text of the 23rd Psalm from a newly-translated (and thus newly-copyrighted) version of the Bible. You're copying the entire psalm, and you're doing this (at least arguably) as part of your job (thus no not-for-profit exclusion applies). Are you infringing?
• The following week you are asked to organize a birthday party for another co-worker. At the party you display the words and music to "Happy Birthday" (all 16 words) on an overhead projector on the wall, and encourage everybody to sing along. Are you infringing?
• You are taking a film class, and are assigned to produce and present a 15-minute videotape reviewing the most artistic and cinematically-significant works of Francois Truffault. You include two entire scenes from a movie, and you do a spectacular job. Such a great job, in fact, that your professor asks you to present it as part of a Truffault festival at a local art movie house. Which sells tickets, popcorn, etc. Obviously your work for class is not infringing (since it is part of an educational program). But now it's being "sold" by the theater. Are you infringing?
• You are the also the social director for Tappa Kegga Day fraternity at Big State U. And for the "scholarship" of your frat brothers you produce a similar scholarly film study of the most cinematically-significant moments of the last twenty years of pr0n. All the juicy bits from Debbie Does Dallas, Deep Throat, etc. (Well, Deep Throat is more than 20 years old, but you get the point.) Are you infringing?

And the judges say...
No, yes, no, and yes. Copying the 23rd Psalm from a copyrighted translation would not be considered infringement because the 23rd Psalm, while a discrete chapter of the Bible, is still a small part of the work. Further, your distributing the 23rd Psalm in the new translation is unlikely to discourage sales of the translation--it is easy to argue that it might increase sales instead. (And it has been common practice for new Bible translations to distribute portions of the Psalms as marketing material.)

Singing "Happy Birthday" is infringement?
Yup. And the copyright holders have successfully, and repeatedly, sued--and won. That's why every franchise restaurant chain in America has their own goofy variation on the song--nobody sings "Happy Birthday."

There is a second dimension to this: in general, singing any copyrighted song from an overhead projector has been found in the courts to be infringement. The Catholic diocese of Chicago got tagged for more than a million dollars back in the early 1980s for using "scripture songs" from an overhead projector to avoid buying printed music.

Reviewing Truffault
First, your video for class is a perfect case of Fair Use. It clearly falls under the category of "review, comment, or scholarship" (at least two out of the three, if you're like any of my students), it is done under the umbrella of a universit

I call BS, a note to Law Enforcement

[Quebst]

I like big business. I don't mind lawyers. I think profit is good and protection of copyrights is very important.

Now with that being said, what the hell is wrong with the DOJ?(and the RIAA) The RIAA has obviously gone insane by turning off their key demographic. Businesswise this makes absolutely no sense. But this has been known for some time.

Now I see the DOJ has gone off the deep end too. You are responsible for prosecuting IP cases and you can't draw a line for fair use? You don't see the problem when you go after someone who downloaded mp3's(non-profit use) while there are far larger concerns in the business world alone, not to mention violent crime.

There comes a certain point where one must choose their battles, and this is not a battle the DOJ or the courts should be wrapped up in. I even agree with the spirit of the law(except the DMCA) and can't imagine why the DOJ would do this.

The lawyers state several other statments which should draw concern. They state that their ethics prevent them from personal comments on the cases. Their "ethics" should be questioning their own actions. "Every law should be followed" or "I do it because it's my job" do not excuse you(LEOs) from morality. Law enforcement personal are to blame just as much as the legislators. Look at the spirit of the law, read the Declaration of Independance, and realize that by your actions people have lost part of their lives. If you ever realize the horrors you have done, good luck sleeping. And, um, thanks for the interview. At least you dodged the questions instead of not listening to them.

KEEP MODDING PARENT UP! It IS the Worst Math Ever

[Anonymous Coward]

Absolutely. First of all, he's only discussing extreme cases. Honestly, who has 20000 titles on their hard drives? Imagine how much HDD space that's take up. Who had HDDs that have that kind of capacity?

And a CD does cost about $20, but should it? It costs much less for it to be produced.

Anyway, say there actaully are 20000 songs on a hard drive. That's approximately 2000 CD's worth of material. Then that amounts to a total of only $40 000. Of course, this is just an approximation, but any way you slice it, it sure isn't in the "millions." That figure is so far off, I wonder if the "Dr. Evil" character is based on him.

Dont you just hate it when...People forget history

[Anonymous Coward]

"Piracy is an expression of peoples disatisfaction with the current state of affairs. "

Is it? Is it really? Sounds like we've convinced ourselves that piracy is somehow something new.

History doesn't agree with your conclusion though.
People have been violating copyrights for centuries. Were they doing it back then because they was dissatisfied (keeping in mind the rather loose definition people use. A system that keeps murders from murdering, generates dissatisfaction), with the way the system didn't work to their benefit?

"I think he still missed the point though. I think people are unhappy that a handfull of companies control music, movies, video games, television and news. And these companies are determined to provide the least usefull solutions and the least value to their customers."

Much like people complain about how bad their respective governments are. However no complainer has yet to come forward in acknowledging their role in this great crime. It was the other person who bought all those CDs, DVDs, etc which financed the very economic engine that now bears down on them. It's the other person who's inattention when political matters were up for discussion that's at fault.

"How many times have you bought a DVD only to have several special edition versions issued later? Why not pirate the dvd now, and wait for the special edition? I have several DVD's which have died of "dvd rot". What is the Warner Brothers solution to this problem? Go buy another one!"

Ford has just came out with the 2004 model of my 1998 model. I guess I should have swipped it off the lot, and waited for the 2004 model to come out.

The damn car simply wore out. What is Ford's answer to this problem? Sell me a new car.

Pyramid-scheme math

[jesser]

Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket.

Factoring in the number of times each file is downloaded only makes the damages skyrocket if you use pyramid-scheme math. Ignoring leechers and rippers, the number of people who have downloaded a given file is equal to the number of people who are hosting it, so on average, each host has distributed 1 copy of each file.

A "trust" violation and personal responsability.

[Anonymous Coward]

Well see the problem with this argument is there is no way to prove it's validity. There's no effective difference between one who copies for their own benefit without any intention of ever compensating the copyright holder, and one who copies because they can't presently afford the product.[2]

This is like going to the car dealer and "borrowing" a car with the promise that you will pay for it later.

Maybe you will and maybe you will not. Only 24/7 observation will reveal that fact.

However copyright law doesn't recognize either justification as valid, because it doesn't look at "he might honor the deal sometime in the future"[1], but what you've done presently. Which is to violate copyright.

[1] Kind of like "He beat a person up today, but he promised he will be good in the future".

[2] Two things here. One the copyright holder is the one who should be making the decision, not the certain thief, nor "potential" customer. As mentioned at the top of the interview OSS depends on copyright. Do we want promises like "We will honor the terms of the GPL...later."? Second since people engaging in piracy is a human inevitability (look how long we've been doing it to each other), the only way a small company can remain viable is the ratio between certain thief/ potential customer remains very low. So far no one in this forum has addressed as to how that will come about. Because no one on this forum has the courage to address the human heart, good and bad (especially bad). It's the base impression that we all are simply misunderstood, and it's the other groups (substitute accordingly) fault for our behaviour (kind of destroys that whole "free will" thing, doesn't it?)

Yourquestionraises an interesting point!-hypocrisy

[Anonymous Coward]

"So, at what point did US.gov forget that? When exactly did it become a crime to "steal" that potential profit, rather than a crime to run cartels that operate to keep creator and recipient apart and to keep that work exactly as expensive as the market will bear? Hmm?"

Might that be the same market that exploited the "employer market" during the dot.boom? It's OK when we do it to them (market will bear), but it's not OK when they do it to others (market will bear).

I would be so much more impressed with the downtrodden geek. If there wasn't so much hypocrisy floating around.

oh, a federal show job

[Anonymous Coward]

Ladies and Gentleman, what we have witness here is a Federal case of a G-man peeing all over you and saying, "It's raining, It's raining."

This pigs serve the megacorps at the expense of freedom. They use the Bill of Rights and the Constitution as toilet paper.

Citizens contract.

[Anonymous Coward]

" The Constitution grants Congress the power to create intellectual property, but does not require it to do so. Congress could do away with copyright in a single day, simply by passing a bill that eliminated it. They wouldn't even need the President's signature, if they had enough votes to override a veto."

And they will not do this. Not because they are beholden to the RIAA, MPAA, etc, but because copyright is ingrained thoroughly into our society. Even your post falls under copyright. Problem as well is that getting rid of copyright is much like getting rid of free speech. We may not like what someone has to say, but we would be a fool to get rid of that right because it will affect us as well as the person who's speech we didn't like.

" it's important to understand that the purpose copyright and patents were allowed for in the Constitution at all is "to promote the progress of science and useful arts" - that is, to benefit society by stimulating the economy, rather than benefitting the creators of the works. That's not what Jack Valenti would have you believe."

Um.. not quite. I want you to repeat this over and over until you understand it. "One can not force another person against their will to do something"

In other words, no society can force any of it's citizens to either be creative, nor give their creativity away, be it to an individual or society at large[1]. The founding fathers recognized this simple fact. However ideas (product of creativity) are, unlike material goods have an influemce all out of proportion to their simplicity (E=M*C^2). Another fact that the fathers understood. A conundrum presents itself. How can a society benefit itself while not putting its citizens in intellectual slavery? Ah Ha...people want to benefit from what they do, how about we make a deal? We give them time to benefit from their labours, and after that the society benefits. Eureka!!. So as you can see, you had your cart before the horse.

[1] What is society going to do? Withhold sex?

Another aspect of the New Math

[sreeram]

As has been pointed out many times already, you know that this "new math" of calculating damages (by multiplying the retail value with the number of infringing copies) is absurd. There's another aspect to this, which is kinda obvious, but hasn't really been pointed out:

Consider for a moment that this "new math" is not absurd. I.e., assume that everyone who copied the stuff illegally would actually have bought a copy. Who's to say that the retail price in such a situation would be the same as it is now? When there's demand for a product, and plenty of copies waiting to be bought, there might be new market dynamics, more retail competitors, etc. The retail price could be significantly lower (competitors undercutting each other?). If you are going to hypothesize the retail value of infringing goods, you ought to hypothesize the market scenario as well.

In the case of music CDs, the icing on the cake is that the current retail price of CDs has been found to be the "fixing" of an illegal cartel. The DoJ should be looking at the "actual" (non-cartel) retail price for their valuation.

Re:KEEP MODDING PARENT UP! It IS the Worst Math Ev

[los furtive]

And a CD does cost about $20, but should it? It costs much less for it to be produced.

I thought about the same thing. What I thought though, was that if you are stealing software, that means the company didn't have to pay for manufacturing, shipping and distribution, so actually, of it was worth $50 in the store and you stole it online, shouldn't manufacturing, shipping and distribution be removed from the value of the price?

The annoying thing about counting...

[Kelmenson]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

The problem with this comes from how "one count" is specified. If you rip all 12 songs from the Metallica CD, that is 12 counts of copyright infringement... It would be like "one count" of sexual assault being applied every time a rapist penetrated.

Re: Civil Law

[Anonymous Coward]

Actually, you need 9 out of the 12 to agree.

Re: Civil Law

[dentonj]

In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

The SCO vs. IBM lawsuit is a civil case. While everyone here "knows" that SCO's claims couldn't hold water, they may have enough "evidence" to satify the "preponderence of evidence" required to prove civil cases.

I don't blame IBM for keeping quite over the lawsuit. It's not uncommon to hear of large dollar awards in civil suits. From one of the answers, it's easy to see how SCO come up with it's $3 billion dollar figure (or what ever they are claiming today). Assuming that they they used the cost of an averaged boxed set and then multiply that by the number of estimated Linux users, then you end up with an outragiously large number. It sounds crazy to everyone here, but we tend to forget that this is a civil lawsuit.

Re: Civil Law

[jefeweiss]

Setting aside the decision of the jury that a defendent is liable under the law, or guilty in a criminal case, there is still the principle of jury nullification.

This principle states that a jury can rule in favor of a defendant, even if they think he is guilty, if they believe that the law that he was found guilty under is unjust. Although I have heard of this happening more in drug related cases, I would not be at all surprised to find out that it had happened in an IP case.

Take for example Mr A. Poor Schmow, who is being sued by the RIAA for a gazillion dollars in a civil case. He downloaded the music. The RIAA proves it in court. The law says that the RIAA can get the gazillion dollars. A jury composed of individuals, who themselves may have downloaded music at some time, finds in favor of Mr Schmow. Copyright law, as it is currently written and enforced, is not fair, and it is not just.

All respect to the lawyers at the DoJ who are doing their job enforcing the laws, but the people of the United States are the ones who should be deciding what the laws are. And when everyone and their mother are downloading files, it sure seems to me that the laws need to be changed. And if the RIAA lobbyists pay congressmen too much, then it's up to the juries to refuse to convict in the face of unjust laws.

Legal system is broken

[rodgster]

Before DMCA

RIAA: Your honor we'd like to seek the identies and information related to certain individuals who we believe are making unauthorized copies of our copyrighted works.

Judge: You should know the rules, file your civil suit first, present your evidence and I may allow it.

RIAA: This is BS.

Post DMCA

RIAA: I need to subpoena the identies and information for these Nine Hundred and Eleven people who are stealing our music.

File Clerk: That'll be $27330 please.

RIAA: Take a check?

File Clerk: No, it's cash or credit card.

RIAA: VISA?

File Clerk: Hey wait a minute, I think you copied and pasted the wrong guy on this one.

RIAA: Impossible!

File Clerk: This guy is my old Astronomy Professor and I think the file you reference here is one of his lectures on quasars that he recorded in mp3 format.

RIAA: That is our IP!

DOJ Attorney: I remember when someone stole my IP once. I couldn't get back on the network until I got a new one.

Re:Legal system is broken

[Anonymous Coward]

hilarious
fdl...pmp...

Re: Civil Law

[Anonymous Coward]

Number of jurors for a verdict and Burden of Proof are two separate concepts. The number of jurors voting for a verdict depends on the jurisdiction and type of action. (i.e. one state may require a unanimous vote for a civil verdict, and others may only require a majority. Criminal cases typically require 5 out of 6 or 10 out of 12 to convict, with a unanimous verdict for a capitol offense)

Burden of Proof is how much leeway each juror has in making their vote. Most civil cases are a "Preponderance of the Evidence" or "More likely then not". This is usually called the 51% standard, since you are supposed to vote for whatever side persuaded you more, even if it is only by a teeny-tiny bit. Clear and Convincing is another standard that is used in a few proceedings. (usually found in probate and will actions when someone is trying to prove Uncle Monty really did want for them to have the Corvette, despite what Aunt Millie says) It can be expressed as 75% or so. Beyond a Reasonable Doubt is the standard everyone knows. It is considered to be 97% or higher. A reasonable doubt is just that, reasonable. Sure there is a chance that space aliens could have materialized out of nowhere and killed Nicole Brown Simpson and Ron Goldman; but is that reasonable? Well, maybe in Los Angeles.

Re: Civil Law

[kaltkalt]

Jury nullification sounds neat in theory but it never happens. A lawyer isn't even allowed to tell the jury about it. Jury nullification basically means anarchy, because the jury is supposed to base its decision on the law. That's what jury charge is. You can't say "here is the law, base your decision on it... or don't." If the jury decision is totally out of line, the loser can typically move for JNOV and have the verdict disregarded.

The way the People decide the laws is not to ignore them, but to elect those who will properly create them.

That being said, some laws are simply irremovable. Drug laws are such an example. Draconian copyright laws, while a new phenomenon, may very well be too. In a criminal case based on such a law, I feel jury nullification is not improper. But it's not ideal, either. Jury nullification is never a good thing. There are proper ways to get bad laws removed - either elect those who will revoke the laws and pass new ones, or get the law found unconstitutional and toss it out.

Piracy: whys and wherefores

[jimbosworldorg]

There are a lot of people who only pirate that which they wouldn't buy even if they couldn't pirate it, usually due to unreasonably high prices.

I know an awful lot of people that cheerfully pay for their $50 copy of Quake MCMXVII: the Bloodening, but just as cheerfully pirate the heck out of Adobe Photoshop. Would they pay the $750 for Photoshop if they couldn't find a pirated copy? Not bloody likely.

Re:Piracy: whys and wherefores

[Anonymous Brave Guy]

There are a lot of people who only pirate that which they wouldn't buy even if they couldn't pirate it, usually due to unreasonably high prices.

But if you don't buy it, you have no right to use it. You couldn't claim any other product or service in the world without paying what's asked for it; if you don't pay, you don't get. You can't walk into a car dealership, tell them that Zonda is unreasonably highly priced, and just take it anyway. You can't walk into a lawyer's or financial adviser's office and demand they give you their expertise at $5/hr because their advertised rates aren't fair. Why should software be any different, just because it's technically possibly to rip it?

I See Nobody Had The Guts To Put The

[Master of Transhuman]

INSLAW case question I asked to them.

No surprise, there. /. punks out again.

Sodomy is not a Constitutional Right

[Anonymous Coward]

Nor is "fair use" or so many other things invented by the supreme court; the body supposedly chared with enforcing the consititution. Instead, they often just make it up. Yes, the title to this is a bit a flame bait, but it there to make a point. The point is the appeal to the consitution is not a valid approach. The consitition, as written, is dead. There is only one supreme court justice in recent history who believes in the consitution and its scope of powers - the must hated and maligned Justice Thomas. Seriously, check out this simple reply to Lawrence V. Texas.

"Justice Thomas, dissenting.

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1."

You're a lawyer (I am not)

[tqft]

if you doubt me - count the words

Why defending copyright is important

[Anonymous Brave Guy]

I'm not that angry really, but I find it offensive when people essentially put themselves above the law and then try to morally justify it as though ripping CDs over P2P is some sort of quest for freedom, justice and the American way. It's just breaking the law for personal benefit, guys. If you're going to be a crook, at least be an honest one.

I'm a professional software developer. As such, I see where copyright comes from and why it is necessary. My colleagues and I work very hard to produce a range of specialist mathematical products that are generally well regarded in their fields. It takes a lot of people a lot of hard work to design, implement and test the algorithms we use, the things that make our products as good as they are.

Now, we sell these products, sometimes in compiled form and sometimes with source code available, to get some return on that investment. We also provide ongoing support packages, which many of our customers pay for. In exchange, they get very fast bug fixes (often within 24 hours) and various other perks. We think we sell these things at a fair price, and apparently customers all over the world agree with us.

Now, if the "information wants to be free" crowd think that we should just give our work away, I want to know why. It took teams of very clever people years of work to design the main algorithms and techniques behind our products. This isn't knowledge that "already existed" and was just "discovered", it was designed and constructed by a process like any physical product. Given that all of these people have invested years of their time doing the research to get to this point, what right has some teenager across the pond (or some big corp, for that matter) to benefit from our work without compensating us for our efforts?

Obviously, this is a personal perspective on why copyright is a good thing, but it's one shared by a whole industry. Even free software (in the GPL sense) relies on copyright to keep it free (in the GPL sense). And yet here we have a whole generation of kids, at least in the Slashbot community, who think copyright is wrong, because they haven't stopped to think why it's there and where it comes from. All they see is that it is a threat to them copying other people's music and movies and games and Microsoft software, and thus they join in the "all information must be freed!" chant.

There are problems with the music and movie and software industries as they currently stand, particularly in the US. I don't deny that; indeed, I think it is essential that those problems be addressed. But the problems are because of abusive businesses practices, monopolistic tendencies and cartel-like behaviour. The principle of copyright is sound (even if the US government don't seem to understand it in practice), but if we let a whole generation of kids grow up against it without really even knowing why, then all hell will break loose when that generation are the ones making the rules. Thus I believe in a vigorous defence of the principle of copyright, and constantly try to steer people around to attacking the real problems (monopoly abuse, corrupt government selling out to the corps, etc.) rather than the nearest fall guy (copyright). It's not anger, it's simply the principle of doing the right thing for the right reason.

Re:Why defending copyright is important

[Lothar 0]

I can see where you're coming from, but I think a lot of the frustration from both sides is coming from looking at this specific aspect of an economic system and not the whole system.

The "Slashdot kiddie", an unfortunate stereotype, wants information to be free, but at the same time is frustrated because (and this is one point where we disagree) s/he recognizes that the original makers have to be paid. This builds up much in the way of inner tension because they yield to the legitimacy of capitalist economics on principle. At the same time, they find that it cannot work for them personally because they see that this aspect of the system, reproducable products, does not follow the traditional capitalist model that they accept. That it's "stealing" doesn't compute, and really shouldn't because of the intricacies involved. This I think partly explains the defensive sloganeering of the "Slashdot kiddie". They're not (mostly) chanting to get a free CD. Rather, they're ill-equiped to challenge capitalism because they lack a theory that explains this tension and can therefore only fall back on "information wants to be free" without getting at the core socio-economic issues that, I feel, actually support file-trading. Therefore, they are rendered illegitimate thieves by the culture.

Likewise, content producers like you and me (a grad student likely to get published in the near future) may just see that people are not paying us to use our work, costing us some of our livelihoods and in effect stealing from us. That we're measuring our achievement in terms of dollars rather than the heightened circulation of our ideas says something about our capitalist culture, but it still begs the question of how to feed and house our families. We, just like the "Slashdot kiddie", are caught up in our own inner tension, this time between our personal needs and demanding compensation for a reproducable product. However, morals against demanding money for something that could be freely available are overshadowed by capitalist morals to pay for everything one uses. Thanks to that system of thought that Antonio Gramsci would call "hegemony", we "win", and our incentive for profit is legitmitized over the public's incentive to share information. We are freed from examining our own inner tension, but only for a while.

Capitalism, an economic system that perverts the sharing of information that has existed since the dawn of human language, must find a way to resolve both the inner and external tensions of the "Slashdot kiddie" and the content producer if it is to survive in a digital world. Giving the public tangible incentives to reward content producers for products outside of the content itself is the clearest way for capitalism in a digital society to survive. Else, it's not a far leap to make the case for a socialist "each according to his or her need" ideal wherein content producers would be paid according to those needs by, in state socialist terms, the government, or in a true socialist system, human empathy to help those who produce content out of love for the craft and the human need to share with others.

"Yeah right, granola. Take your hippie 'live on love' crap elsewhere. People don't work like that." In our current system of alienation, this would be correct. But that's just it - our *current* constructed system that most accept as human nature, a necessary evil, just "as is", but most importantly, impossible to change. My point is that you cannot successfully engage in a debate about file-sharing unless you address the system as a whole. Else, both sides will just run around in their circles of contradiction because they accept the same system that always privileges one side and delegitimitizes the other while solving nothing.

Re:Why defending copyright is important

[Anonymous Brave Guy]

I agree with you entirely that it's necessary to judge the system as a whole.

My problem is that right now, today, and any time for the foreseeable future, we do live in a capitalist society. Maybe some time in my lifetime an event will take place that is so momentous as to turn it into a "from each according to his ability, unto each according to his need" society. Maybe we'll abandon class, fix world poverty, bring down the old boy networks in government, cure cancer and visit Mars. I'd like to think so.

But until then, we have to live in the real world, and rightly or wrongly, the real world doesn't reward "just good intentions". If people like me don't defend our way of life, this is not going to lead to a socialist revolution. On the contrary, it's going to lead to a culture where few people can afford to produce the high quality products that require time, investment and genuine hard work. I don't want to live in that world, and I doubt any of the kids we're talking about do either.

I'm afraid I just can't see wanton copyright infringement as some sort of noble cause in a quest for a better society. To me, it's still just greedy and illegal, and I'd be surprised if even 1/10 of the people doing have given the slightest thought to the issues you raise.

Re:Why defending copyright is important

[Lothar 0]

I guess the difference between us is that I don't consider the present world "real", but a social construct that benefits the powerful at the expense of everyone else. Only that it's considered "real" and natural by most people is a testament to hegemony's success. When I say, "But until then," I cannot help but finish the sentence with, "let's do what we can to make it happen," rather than, "let's do our best with the world as it is."

I would want certainly more than 1/10 of the people to think about the issues I raise. The world I'm working for cannot come about without education and reflection; that might explain why I'm getting a Ph.D. in education other than dumb luck (that's another story in itself). The goal of file-trading cannot be simply getting "free stuff", but to allow others to share in a culture that encourages critical reflection and a sense of community - two things the RIAA and capitalists in general would rather not encourage among the populace. This, I strongly believe, is far more important than the sake of any quality product, or any economy for that matter. I simply find it sad that too many have confused means with ends, but it's a good launching point for discussion at the same time.

I think you've summed up yours and the rest of Slashdot's "anti-kiddie" bloc as a whole pretty well. Just try to keep in mind that they're not all on the make, and if their favorite artist ends up begging on the street because of file-trading (heh), let them know. Many would be thrilled to feed them and let them sleep on their couch until they get back on their feet. ;-) j/k

Take care, Brave Guy.

Re:Why defending copyright is important

[Anonymous Brave Guy]

You know, if I honestly believed that most people were ripping content for the reasons you've given, I'd be much happier with them doing it.

Good luck to you in your quest to build a better world. You're going to need it, but don't let that stop you trying.

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. -- Margaret Mead

Re:Even prosecutors have trouble determining legal

[Anonymous Coward]

"how can I make a backup copy in the event the original gets scratched or broken (as is the case with many of my CDs)."

take better care of your CD's. I still have vinyl records that are in *excellent* shape, because I've taken care of them. Then again, I have a a few that I picked up on CD because when I was 15 years old I didn't take care of them the way I do now.

How can I know if my code is infrigned?

[Avatar889]

If I am an open source coder and some large company that has been known to use "unfair busines practices" in the past decides to take large chunks of my code, how am I supposed to know if their source code isn't available in any way.

It's like playing go fish...

"Did you use any of my code?"
"No"
"Oh, ok, I trust you completely"

Re: Civil Law

[deblau]

Please browse Cornell's excellent overview of civil procedure in the US. Many trials are conducted with a standard of proof which is "preponderance of the evidence", i.e. whichever side shows the best evidence (according to the judge or jury) wins. Federal civil cases, including those involving copyright violations (which are federal offenses), follow the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Cornell has an excellent online law library, including the Constitution (which defines the scope of copyright) and the United States Code, which is all of the Acts that Congress passes (including the DMCA and the CTEA).

I was not a lawyer last time I checked, so if you need professional advice, hire a professional.

Nope

[John Murdoch]

Hi!

Nope. I'm a programmer these days, but I used to be the business manager of a publishing house, and subsequently ran my own publishing house for a few (disastrous) years. I've written for a number of programming magazines since then--so I'm pretty familiar with the rules. 8-)

Witness liability

[Anonymous Coward]

One of the little known facts about having an expert witness is that they can be 100% wrong but cannot be penilized for it. It is only their opinion.

Of course you can discredit witnesses for not being professional/believable. This is how you get the two expert witnesses giving completely different opinions on what is the same professional subject.

Re: Civil Law

[jefeweiss]

The ability of a jury to decide not just matters of fact, but also matters of law is firmly enshrined in the American legal system.

From www.caught.net/juror: "As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))" This principle goes back to the English common law that US law is based upon.

The fact that people aren't informed of their rights as jurors is a shame. That doesn't change the fact that it is a right.

With respect to the JNOV, in most states the JNOV, if contested, would lead to an automatic retrial. Whether or not the new jury would also rule in the face of law would have to be determined at the retrial. A refusal to find on the side of the law by multiple juries would be a sign, at the least, that a law was unjust, and the judge would probably hesitate to enter a second JNOV on the same case.

This doesn't apply in criminal cases, although the law varies. In some cases jury nullification would provide immunity from new prosecution under the idea of "double jeopardy."

Re: Civil Law

[kaltkalt]

Jury nullification is a real thing, but it is nost certainly not firmly enshrined in the American legal system. The american legal system hates the very notion of it. It is mistrial time were a lawyer to tell the jury (i.e. in closing arguments) about jury nullification, and the bottom line is if juries are free to decide issues of law, then there are no laws.

But, jury nullification itself is not a valid reason for a new trial, unlike, say, 3rd party interference w/ jury deliberations. Jury nullification should only be used in criminal trials, IMO, and only a last resort to a very wrongful, oppressive prosecution (when the state is trying to make an example of someone). Jury nullification in civil trials, such as to ignore the assumption of risk defense to 'stick it to those evil tobacco companies' is just not right, IMHO.

you're surprised or something?

[alizard]

A lawyer who can't make his child-molesting serial killer client a sympathetic figure to a jury isn't worth a whole lot.

In this case, their client is the US government and indirectly, the Hollywood cartel.

The image they projected is exactly what they wanted you to see.

Anyone here really think that top priority among cases doesn't automatically go the billion dollar companies and the "little guy" poster child they cited wasn't chosen specifically for future public relations value?

Just because someone represents bad guys for a living doesn't mean he's going to come across as a cross between Satan and Barney the Dinosaur possessed by Charlie Manson. A trial lawyer that sends the jury screaming out of the jury box just isn't worth a whole lot to anyone he represents.

I'd give their interview a "9" for spin control and a "5" for content... it was worth reading both for the information and the pointers on technique and if any are around, I'd like to thank them for showing up.

Re: Civil Law

[God! Awful 2]

AFAIK (from watching Law&Order and such), jury nullification is something juries sometimes do, not something juries have a legal right to do.

-a

Re: Civil Law

[WNight]

How can jury nullification not be a good thing? It's fine from an ivory tower view to say that laws are changed by legislators, but there's been strong public outcry against some laws (drug related asset seizure laws for instance) for years and there's hasn't been the slightest change, except maybe for the worse. Regular people have absolutely no power to change these laws, yet a jury refusing to uphold unjust charges against someone can make a real, immediate difference.

If you can't convince a jury of the people that a law is just, maybe it's a sign that it's not.

The *only* time I see a problem with jury nullification is if it's done when the crime is just, simply to free a charismatic criminal.

What I find to be quite insulting is the attitude judges have towards people who tell juries about this right. There's a guy, whose site I can't find right now, who goes around handing out pamphlets outside courthouses, informing potential jurors about this right and he's been persecuted for this. A right doesn't really exist if you can't tell people about it.

Is collective ownership = theft?

[Anonymous Coward]

This is not about "depriving someone of money they expect to make", but rather using someones intellectual property without paying for it

Ah. Suppose you and 4 friends pitched in $5 to buy a CD at a record store, and then pass it around for everyone to listen to, being careful not to make any copies of it. You have paid for partial use of the item, so is this theft or just splitting costs?

Next, suppose you bought a CD with your own money, listened to it, and then donated it to someone else. They, in turn donate a CD to you. You keep doing this with many friends. Sometimes, you donate without receiving a CD in return. Is this theft, or just donating?

Finally, suppose everyone in the country got together to form a corporation with a stock price of $1. Let's say the corporation then proceeds to buy up (almost) all CDs, videos, etc, on the market, with enough duplicates so that each shareholder can have access to one new item every week. Then, having legal ownership of these items, the company begins distributing the items to all shareholders upon request. The items could be passed around by hand locally or mailed for long distances, always requiring the return of the previous item. Since all of the shareholders are legal owners of all of the songs, they have a right to obtain whatever they request, albeit in due time. If this happened, media companies would never make more than about 250M a year. They would certainly lose revenue, but everyone would be a legal owner, and could listen to anything for only $1.

So, the question is, is collective ownership = theft?

If so, we, the collective owners of the country's federal lands, are all dastardly thieves and as such should be sent to jail. I nominate the illustrious people at the DoJ to be the first to go, however, with the people that do all of the arresting to follow soon thereafter...

Re: Civil Law

[salesgeek]

The way I was taught is this:

Preponderance of the Evidence = 51%
Beyond reasonable doubt = 99 44/100% certain

IMHO, SCO is violating the GNU license

[RedLaggedTeut]

SCO is distributing their linux with the patches that make up the contested material. The way the GNU license is, they violate it unless they allow the use of the material under the GNU license.

If open source would be as strong as the corporations, this case would already be in court - so much to the fairness of the legal system.

Re:Dont you just hate it when...People forget hist

[mink]

The DVD does not wear out (from normal use) like you depreciating ford.
The problem and reason a DVD "rots" (Just like LD) is that the manufacturere screwed up and was willing to ship defective product instead of replacing it.

Copyright infringement vs. rape

[lorcha]

For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months

To give an idea how this stacks up, my wife served on a jury which convicted a man of raping a 12-year-old girl. The sentence he received for one count of raping a child was 60 months (there were multiple counts, so his actual sentence was much longer). Hopefully that will put copyright infringement sentences into perspective.

Re:Copyright infringement vs. rape

[Down8]

IP violations are taken way too seriously, and rape is taken far, far, far too lightly. My suggestions for a single infringement of each go something like this:
IP violation - 6 months
Rape - 60 yrs or the death penalty

-bZj

Re:old myth: N illegal copies == N lost licence fe

[KjetilK]

Yes, it is quite unlikely that it is correct to estimate the loss as "number of copies * licence fee", but what really should be addressed is the idea that "the only way to make money is to control the copies". That's the root of the problem.

We need to design a system where it is very easy to pay without restricting copies, and we need to do it soon. To some extent, they do this with shareware, but the payment options there are far from efficient enough.

Re:old myth: N illegal copies == N lost licence fe

[Anonymous Coward]

Since each download equates to lost sales, why not start a software company that markets a commercial Microsoft Office alternative and then sue each person who pirates MS Office, because if they hadn't downloaded a pirated version, then they WOULD have bought your slightly cheaper version of Office.

It's the same logic, and they're stealing from you as well!

In fact, now that I think of it, that sounds a lot like those BSA ads targeting companies to turn in competitors suspected of pirating software...